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 personally believe Trump is the logical conclusion of that pardon, even if Ford had solid reasons, One was to unify the nation.
Trump has been a norm shattering president from word go. His party has hardly held him accountable. They fear him, even now. He already signaled that he intends to pardon his closest allies and his family. The latter is to shield them from any federal prosecution. Will he announce that he pardoned himself? This is a good question. Nothing stops him from signing the paperwork and putting it away for when the Feds come after him. Then we will learn. See, I am immune…talk about the ultimate corrupt practice.
This is how Trump thinks. But doing this, as bad as it feels, will liberate Biden from that problem. If the Feds decide that there are reasons to prosecute Trump, that pardon will be tested in the courts. And for all our sakes, I hope the radicalized courts find against this. Why? The precedent is incredibly dangerous for a functional democracy.
Biden will not have to consider the politics of this pardon. This is a good thing for Biden. However, this is not necessarily good for the country. Trump has avoided consequences throughout his life. He was bailed from bankruptcies for example. He also lives in a fantasy world where Trump is always the victim. While he will have to admit doing something wrong, the most un-Trumpian thing to do, he will be able to argue that they were going after him. This was a rational thing to do, to protect himself.
Trump will claim victimhood if the State of New York pursues the cases before them. He is not a man who will ever take responsibility. Cases outside of New York have also started to take shape. Ivanka had to testify over alleged self-dealing over the inauguration. So the exposure the family has is very real. Grifters do not always win, and it may be time for Trump to exit stage left from the national stage.
So what happens if Trump pardons himself? In effect, it will only be tested if there is any federal prosecution. However, this will be the last thing on Biden’s plate, as he has already signaled that this is not a priority. There are many other things well ahead of dealing with Trump.
There are arguments why we should have hearings like those of the Church Committee after Watergate. There is more why Trump should face the music for his actions. But I suspect neither will happen, This is not 1974 and Americans are living in two separate versions of reality. We also know that one of the two parties is committed to minority rule, no matter what. The consequences will be severe. But it is clear at this point that the other party may not have it in it to finally call it for what this is.
For that matter, neither does large media. It is well past time for us to confront a dark reality. The last four years of chaos did not start four years ago. They have been cooking for decades, as Republicans are committed to minority rule and revenge, over Watergate. We need to realize where we are. As to Trump, soon he will be in the rear mirror, and historians will not be kind.