Opinion | A Trump Pardon Could Drain Poison from the System

It’s an idea whose time is inevitably coming for Republican presidential candidates — pardoning former President Donald J. Trump.

With the former president facing 37 counts in a federal indictment alleging violations of the Espionage Act and obstruction of justice, his fellow Republicans began discussing clemency even before Trump had entered a plea in the case in Miami.

Vivek Ramaswamy has led the way, making a pledge to pardon Trump his calling card. He is swaddling his case in selfless principle, saying that it’d be easier for him if Trump were out of the race, yet his commitment to justice forces him to act against his own interest … and say something that many Republican voters obviously want to hear.

Nikki Haley is inclined toward a pardon, too.

The middle of a primary campaign is not the best place to carefully think through the various equities involved in the criminal case against Trump and potential clemency, but the idea of pardoning Trump is a sensible one that, depending on the exact circumstances, truly could serve the public interest.

The bind represented by Trump’s indictment is that, based on the evidence we have now, he appears to be caught dead to rights; at the same time, nothing good is going to come from the political and legal warfare inevitable with the prosecution by the U.S. government of the leader of the opposition party.

The presidential pardon power is sweeping. The Supreme Court called it “unlimited” in the 1886 case Ex parte Garland. It extends to “every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.”

Among other things, it allows for the consideration of factors that the law alone might not take into account.

The most famous example from high politics is, of course, Gerald Ford pardoning Richard Nixon for offenses related to Watergate, although that episode dates from a different era when politics was a more serious business for more serious people. Ford didn’t go around bragging that he’d pardon Nixon to garner attention and curry favor with Nixon supporters, while Nixon, for all his desperate flaws, was a man of considerable substance and achievement.

Ford, of course, justified his act of clemency on grounds of moving on from, as he put it in his national address, “a tragedy in which we all have played a part. It could go on and on and on, or someone must write the end to it. I have concluded that only I can do that, and if I can, I must.”

We are still far away from getting to anything like this place. First, Trump would have to lose the Republican nomination, and he’s currently the strong favorite. Then, some other Republican would have to win the presidency, or President Joe Biden would have to see the wisdom of potentially keeping the vanquished Trump out of jail, either after beating him again or defeating another Republican.

All this is very speculative, and who knows where the documents case will stand in a year or two? It looks formidable now, but Trump has yet to mount a legal defense.

That said, the case for a pardon is straightforward.

The conventional wisdom is that our politics is over-heated. The worry over this is often exaggerated (things have been as or more feverish before), but having a former president stand trial in a federal criminal case, and potentially spend the rest of his life in jail, is only going to make things more intense and the country more divided. A pardon itself would be a flash point, as the Ford pardon of Nixon was, but it would at least take the unprecedented possibility of a former president behind bars off the table.

There is some significant plurality of the country that simply isn’t going to accept the legitimacy of the charges. Maybe this shouldn’t matter — the law is the law. If the shoe were on the other foot, though, and if it were the Ron DeSantis Department of Justice prosecuting a Democrat with a significant chance of running against him, there’d be an outcry from the same people now dismissing any doubts about the Trump prosecution.

Those doubts are based on more than the typical partisan suspicions of the other side. The Trump prosecution comes against the backdrop of the years-long Russia investigation by the FBI and special counsel Robert Mueller that cast a pall over Trump’s campaign and early presidency and that was based on gossamer thin, politically motivated information.

It comes after Hillary Clinton got a prosecutorial pass over her “home brew” email set-up as secretary of State that was designed to evade government record-keeping rules and that transmitted and stored classified information and sensitive discussions, putting their security at risk.

It comes as the Hunter Biden investigation has dragged on since 2018, with an IRS whistleblower now alleging a cover-up.

It comes at the same time as the Department of Justice has failed to appoint a special counsel to probe whether the Biden family has used its influence to enrich itself.

What we should want to avoid is a pattern of legal retribution and counter-retribution. That would distort our legal process beyond anything that’s happened to this point, further subordinating it to politics and undermining public trust in it. Perhaps this prosecutorial tribal warfare has already been unleashed, but a Trump pardon has a chance of sapping some of the poison out of the system.

It’s also worth emphasizing that in any of these pardon scenarios, Trump has lost his latest bid for the presidency, either in the primary or the general election. This means he’d presumably be a much-reduced figure, whether he’d been rejected by Republican primary voters or lost a national election a second time (although I thought the same thing after the 2020 election). We aren’t talking about a pardon clearing the way for another White House bid, but rather as a consolation prize for someone who is vastly diminished and looking at potentially losing his freedom, too.

There are reasonable objections to all this. Pardoning Trump would mean entrenching a norm that high-flying political figures don’t have to play by the same rules around the handling of classified documents that everyone else does. Also, usually someone asks for a pardon, and expresses remorse for their wrongdoing. It’s impossible to imagine Trump doing that. Finally, we don’t know what 2024 will look like, and it may be that by the end of it, Trump looks more unsympathetic to a Republican president and more loathsome to Joe Biden.

At the end of the day, a Trump pardon would be about book-ending the Trump era, trying to get beyond a noxious chapter that both he and his often unscrupulous, overzealous pursuers contributed to. If Trump is a Nixon, it’d be best for the country if he found his Gerald Ford.