Trump and a Pardon

The arguments have started. Should Joe Biden prosecute Donald Trump? There are many reasons why this should be done. Chiefly, nobody, not even a former president, is above the law. This is why many activists are pushing the incoming administration to go there. President-Elect Joe Biden already said he is not inclined to do this. Why? This is exactly what Donald Trump would do, and he is not the president. Biden is concerned about making that distinction.

There is a second part of the argument. Biden won’t be able to unify the country. If his justice department goes after the former president, it is a political act and a continuation of the witch hunt. Trump in all his paranoia already set the ground for this precise argument, and we know that he has a lot of legal exposure. This is not just at the federal level. There is plenty of it in the State of New York. So what is a norm busting president to do? Pardon himself of course. At least that will presumably kill the federal exposure.

Did the founders intend for presidents to pardon themselves on the way out? No, that is the simple fast answer. The reasons are many. They despised self-dealing and if presidents can pardon themselves on the way out, they could do self-dealing and other corrupt practices. The constitution did not create the level of immunity for the president that would create an absolute ruler, who was above the law. Moreover, norms tell us that presidents do not do this on the way out. Not even Richard Nixon pardoned himself, and Jerry Ford’s pardon remains controversial to this day. I…