Biden should pardon Trump. Really.
WASHINGTON — In his 2020 victory speech, Joe Biden declared that “to everything there is a season — a time to build, a time to reap, a time to sow. And a time to heal. This is the time to heal in America.” If he wants to deliver on his promise to heal the country, he could do so with one action:
Pardon Donald Trump.
On the merits, the case against Trump is damning. And it doesn’t take a close reading of the federal indictment to understand that the former president’s problems are of his own making. He allegedly showed a writer classified material about Iran, saying, “This is secret information. Look, look at this.” And he obstructed the FBI’s efforts to recover classified material in his possession, even allegedly telling his lawyer, “Wouldn’t it be better if we just told them we don’t have anything here?” Had he simply returned the documents, as Mike Pence did when it became clear he had classified papers, Trump almost certainly would not have been charged, as Pence has not been. His misconduct was egregious, irresponsible and probably criminal. Anyone else would be seeking a plea bargain.
But his indictment has also put our nation into uncharted territory. The threshold for the sitting president’s administration to indict the leading candidate of the opposing party should be extraordinarily high. High enough to mitigate the suspicion held by 80 percent of Republicans and almost half the nation, per ABC News-Ipsos polling, that these charges are politically motivated. Indeed, millions of Americans believe that our legal system is being weaponized against Trump — and, by extension, against them.
Most Americans don’t look at this indictment in a vacuum. They see it in the context of the decisions not to prosecute Hillary Rodham Clinton for her mishandling of classified information; the Trump-Russia collusion investigation, which paralyzed our country for two years over a conspiracy theory; two impeachments and Trump’s politicized indictment by Manhattan District Attorney Alvin Bragg; and the suppression of the Hunter Biden laptop story that could have damaged Joe Biden and aided Trump’s 2020 campaign. They see a troubling pattern, and they are not wrong. The dangers this poses to our democracy are obvious. Selective prosecution is not a defense in a court of law, but the court of public opinion is another matter. Millions will see Trump’s prosecution as illegitimate, and any conviction as unjust. That will further erode public confidence in our judicial system and the principle of equal justice under law.
A Trump trial would be one of the most divisive events in the history of our republic. It would set a new precedent — and create enormous pressure on the next Republican president to go after President Biden, his family and other Democrats.
And to remedy what harm? Despite Trump’s best efforts to obstruct them, federal agents recovered the documents he unlawfully possessed. And there is nothing in the indictment to indicate evidence that the intelligence in Trump’s possession was obtained by foreign governments or intelligence services.
There’s another risk, too. Trump might be acquitted. All it takes is one juror and Trump walks. If that happens, University of California at Berkeley law professor John Yoo told us, then “the Justice Department will have single-handedly handed the presidency to Donald Trump.” Consider the implications of that outcome for the U.S. government and political system.
Whether righteous or not, the decision to prosecute Trump has opened a Pandora’s box. It is in Biden’s power to close it — by pardoning his predecessor.
Trump wouldn’t have to admit he did anything wrong. But pardoning him also does not mean absolving Trump of responsibility for his actions. Biden should instruct special counsel Jack Smith to produce a report — much like those issued by special counsels Robert S. Mueller III and John Durham — laying out his findings in meticulous detail. He should put the evidence of Trump’s misconduct before the American people, not just a Miami jury, and let them render judgment on the former president at the polls — as they did in 2020.
In pardoning Trump, Biden would be a true statesman. Sparing the country the ordeal of a trial would go a long way toward repairing the nation’s frayed political fabric. He would display the kind of leadership that has been missing in Washington. And he would drive Trump crazy. With one action, Biden would eliminate the narrative of a “deep-state” conspiracy that is helping to fuel Trump’s political comeback.
Some will argue that Trump’s problems are not Biden’s. The White House has insisted that the buck stops with Smith, the special counsel appointed by Attorney General Merrick Garland. That’s wrong. Smith works for the attorney general, who in turn works for the president. The buck stops with Biden. He is the boss, and on his order, the “weaponization” of the executive branch against a former president and political rival — and the consequent loss of faith in American government — could be stopped.
To be sure, Biden would face blowback. Democratic strategists recognize that far from damaging Trump, the legal assaults against the former president will likely benefit him in the 2024 primaries; and many believe Trump to be the Republican easiest for Biden to beat in next year’s general election. Others think that Biden has already been too moderate; progressive hard-liners will no doubt say the president could lose his party’s left flank if he hands a getout-of-jail free card to his predecessor. And there are plenty of Democrats (and a few Republicans) who believe that pardoning a man who, a priori, appears so guilty would only further erode American respect for the rule of law.
But none of these political factors should be part of the president’s consideration of Trump’s legal future. This isn’t about Trump. It is about the nation. It is within Biden’s power to restore norms that have been torn apart by both Trump and his opponents. If ever there were a time to heal, this is it.