I Am Emphatically Pro-Preemptive Pardons

There are a lot of pundits out there discussing whether they think President Biden preemptively pardoning Trump targets is a good idea. For those who want a pardon, I say it's a fantastic idea.

With the explicit understanding that there may be many who do not want a preemptive pardon from President Biden for whatever reason, I don’t think we should be preemptively shaming anyone who might accept one. Here’s why.

First, let’s consider the fact that we are no longer living in a norms-based republic. All of those wringing their hands about what is legal, or about what the Constitution says might want to remember that this Supreme Court turned our Constitution on its head when they yanked the “no man is above the law” carpet out from under us this past summer. That’s saying nothing for neglected norms like FBI background checks, advice and consent from the Senate on cabinet nominations, or unelected oligarchs running a shadow presidency from the criminally-immune Oval Office.

To accept as fact that anyone targeted by Trump’s Department of Justice will have a normal course of due process under law is to vastly overestimate how much Donald Trump cares about the law. I believe we have to shift our mindset from “he can’t do that” to “he might do that, and we will have to put up as many roadblocks as possible.”

A preemptive pardon is a pretty good road block.

This particular Supreme Court loves the unbounded unitary executive power of the President, and the pardon power is one of those things that’s pretty impossible to overcome. Not that I wouldn’t put it past this Supreme Court, but preemptive pardons would definitely throw a huge wrench into Trump’s plan to target his political enemies, even if this Supreme Court might say differently.

The President’s pardon of his son Hunter seemed to imply that the election of Trump, and the promises made by his cabinet picks, gave President Biden pause, and might have been the impetus behind changing his mind about pardoning his son. Last summer, I supported Joe when he said he wouldn’t pardon his son, but all that changed when Trump won the election and started showing signs of holding to his promise to go after his perceived enemies by nominating the likes of Matt Gaetz and Kash Patel.

In a normal universe, if Trump ordered Pam Bondi to indict a political rival, she could try, but she might fail when she reaches the part where a grand jury has to vote to indict someone. Trump tried this in his first administration multiple times - sometimes successfully (as in the case of Michael Cohen) and sometimes unsuccessfully (as in the case of Andy McCabe). But can we continue to rely on the rule of law overseen by a man who doesn’t believe in the rule of law?

Something else to consider is that - even if the rule of law is applied - people can still be indicted. Perhaps not tried, convicted, or sentenced - but certainly indicted. The case of Michael Sussman is a perfect example. He was indicted by Barr-appointed Special Counsel John Durham. Durham eventually lost his case and Sussman was acquitted, but at what cost?

Defending yourself against the government can cost hundreds of thousands of dollars - not to mention the time and mental distress of it all. Not everyone has that kind of scratch, and often, the proceeding itself is punishment enough.

So I say, “pardon away,” Sir. The rules don’t apply anymore. Granting pardons to potential Trump targets does not “give Trump permission” to abuse the pardon power. He’s done it before and will do it again, regardless of whether Biden adds an extra layer of protection for those who will inevitably end up in the crosshairs of an idiot dictator bent on retribution. But most of all, if these pardons are handed out and some folks accept them, telling everyone in advance to shame these folks is not the way. Everyone has to do what’s best for themselves, and for their families.

Will this Supreme Court honor the pardons? Who knows? What they have done to our founding documents thus far tells us that there are no more guarantees - even for pardons. But the extra layer of protection afforded by a pardon, in light of this Supreme Court’s love affair with unfettered presidential power, certainly can’t hurt. And I, for one, am not going to shame anyone who might accept one in this political climate.

In fact, I’ll raise a glass.

~AG

Photo: Brendan Smialowski/AFP via Getty Images