Should Harris Pardon Trump?
Kamala Harris was asked in an interview recently whether, if she became president, she would be open to the idea of pardoning Donald Trump. She dodged the question as a "hypothetical," and the interviewer moved on. Today Donald Trump indicated that he'd be open to pardoning Hunter Biden, which isn't exactly the same thing but seemed to be Trump trying to put forward the idea that a pardon would be a good idea, and that the alternative would be "very bad for our country."
Right now, of course, it is an academic question. Neither Harris nor Trump has won the election yet, so it's all hypothetical and contingent on them becoming the next president. But it is a question worth considering, since America has never had the experience of a former president tried in federal court for actions he took as president.
Other modern democracies have, and they have all survived the experience. But the closest we came was when Richard Nixon resigned the presidency. Gerald Ford took office on August 9th, 1974 and one month later (on September 8th) he announced he was pardoning his predecessor. The speech he gave when he took office was equivocal, but you can see he was already leaning towards mercy. Here is the most-famous line of this speech, and the two paragraphs which follow it:
My fellow Americans, our long national nightmare is over.
Our Constitution works; our great Republic is a government of laws and not of men. Here the people rule. But there is a higher Power, by whatever name we honor Him, who ordains not only righteousness but love, not only justice but mercy.
As we bind up the internal wounds of Watergate, more painful and more poisonous than those of foreign wars, let us restore the golden rule to our political process, and let brotherly love purge our hearts of suspicion and of hate.
Ford leaned into the religious angle in the speech he gave announcing the pardon as well. But his decision, as he explained it, was more practical -- he wanted the country to move on rather than go through a very long and protracted process of trying the former president in court. Here is the key part of Ford's pardon speech (the whole thing is worth reading, it's not that long):
There are no historic or legal precedents to which I can turn in this matter, none that precisely fit the circumstances of a private citizen who has resigned the Presidency of the United States. But it is common knowledge that serious allegations and accusations hang like a sword over our former President's head, threatening his health as he tries to reshape his life, a great part of which was spent in the service of this country and by the mandate of its people.
After years of bitter controversy and divisive national debate, I have been advised, and I am compelled to conclude that many months and perhaps more years will have to pass before Richard Nixon could obtain a fair trial by jury in any jurisdiction of the United States under governing decisions of the Supreme Court.
I deeply believe in equal justice for all Americans, whatever their station or former station. The law, whether human or divine, is no respecter of persons; but the law is a respecter of reality.
The facts, as I see them, are that a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.
During this long period of delay and potential litigation, ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.
In the end, the courts might well hold that Richard Nixon had been denied due process, and the verdict of history would even more be inconclusive with respect to those charges arising out of the period of his Presidency, of which I am presently aware.
But it is not the ultimate fate of Richard Nixon that most concerns me, though surely it deeply troubles every decent and every compassionate person. My concern is the immediate future of this great country.
In this, I dare not depend upon my personal sympathy as a long-time friend of the former President, nor my professional judgment as a lawyer, and I do not.
As President, my primary concern must always be the greatest good of all the people of the United States whose servant I am. As a man, my first consideration is to be true to my own convictions and my own conscience.
My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed. My conscience tells me that only I, as President, have the constitutional power to firmly shut and seal this book. My conscience tells me it is my duty, not merely to proclaim domestic tranquility but to use every means that I have to insure it.
There were many who opposed Ford's pardon, and it likely contributed greatly to him losing the presidency two years later to Jimmy Carter. But America was indeed spared the agony of dragging Nixon through the courts.
The same argument could be made for Donald Trump -- that no matter what he had done and what he truly deserved in a legal sense, that the experience would be so painful for the country that avoiding it would be better for us all, even if it allowed Trump to walk away from his crimes unpunished.
Kamala Harris would only be able to pardon federal crimes, of course. Trump has already been found guilty by the state of New York, and the state of Georgia is in the midst of preparing a much more serious case against him. As president, Harris could not change any of that with her signature. But she could make the federal charges -- for his actions after the 2020 election and for his refusal to return national security documents that he had no right to have -- all go away, with just her signature.
Should she? Or should the cases against Trump be allowed to play out? She's not going to answer the question now, obviously, since any answer could boomerang on her in a very tight race. She's currently making a bid for Republican voters disaffected with Donald Trump, and offering a pardon might help her with this demographic. But it could hurt her with others: voters who want to see Trump pay for his criminal activities as president. Harris obviously sees brushing the question aside (as a hypothetical) as the safe route for now.
Ford's argument is a strong one that still resonates today. He quite accurately lays out what will happen if Harris becomes president and doesn't pardon Trump:
During this long period of delay and potential litigation, ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.
But personally, I think all of that is already unavoidable. The ugly passions are already aroused. People are already polarized in their opinions. But the last line is the one that convinces me that pardoning Trump would be the wrong way to go. Because it is Trump who is challenging the credibility of our free institutions of government. He's not just challenging them, he's openly defying them, in fact. And that, more than his actual crimes, deserves a forceful response from those free institutions of government.
Criminal penalties are handed down for multiple reasons, but one of the biggest is deterrence. Society must show others who might contemplate committing similar crimes that there are severe consequences for doing so. Trump is a special case, because the deterrence would only apply to future presidents and other future politicians contemplating overturning a free and fair election. Which is a very serious thing.
You could even argue that Ford's reluctance to see Nixon tried and convicted set the stage for what Trump did. There was no deterrence, in other words. If Nixon had spent a few years in prison, perhaps Trump would have thought twice before he did what he did. And if Trump walks away with a pardon, it will only serve to encourage the next president who considers breaking the law.
While there are arguments both for and against Harris pardoning Trump, it is Trump's own defiance that tips the scales for me. His attempts to rewrite history and toss the violence of January 6th down the memory hole demand a vigorous response from the government that was attacked that day. It's not the idea of vengeance that makes me say this, I should state. It's the idea of deterrence.
Donald Trump deserves his day(s) in court. He deserves to have his lawyers present his "I did nothing wrong" case to a jury of average citizens. He deserves to have the case made against him -- that he did indeed do not just wrong things but criminal things. If this doesn't happen, then in the future some other president may figure that he or she can get away with just about anything. This is an incredibly bad precedent to set, for the country as a whole.
Ford did avoid years of legal drama with Richard Nixon. The country did heal faster than it would have if Nixon had been tried. But now we can all see that doing this -- avoiding all the "ugly passions" and polarization for the sake of domestic tranquility -- sends exactly the wrong message into the future.
Trump already inspired many to break the law. Not just the January 6th rioters, but elections officials and politicians who have themselves been charged with interfering in an election or trying to commit a huge election fraud on the country (those "fake electors," in particular). If they must face being tried in court and possible prison sentences, what would it say to allow the ringleader of the movement to walk away scot-free?
So if Kamala Harris becomes president and is tempted to avoid all the drama of Trump's impending court cases, I would caution her to think not so much about the time it would take to try him and how divisive it would all be, but instead to think of all the years after that, and what message it would send to others. Trading short-term political tranquility for the very real possibility of long-term political danger is a bad bargain. It's not really about Donald Trump -- it's about the next Trump (or Nixon) to appear on the American political stage.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
I grew up in and around Detroit and attended Gerald Ford’s 1976 campaign launch at Crisler Arena as a 17-year old Freshman at Michigan. I came of age flat out hating Nixon and I never even considered Ford because he let that criminal skate.
Should Harris Pardon Trump?
You must mean for federal crimes and if she is elected to an office where she has the legal power to pardon someone/anyone.
Answer: Hell no.
Oops, my bad. My fingers must have slipped. I meant to say: Fuck no.
Now I'll read the article and give you a chance to change my mind.
Today Donald Trump indicated that he'd be open to pardoning Hunter Biden, which isn't exactly the same thing but seemed to be Trump trying to put forward the idea that a pardon would be a good idea, and that the alternative would be "very bad for our country."
I don't think Hunter Biden would accept a pardon from Trump.
So no. Not after we’ve seen how the first pardon worked out.
America has never had the experience of a former president tried in federal court for actions he took as president.
America has also never had the experience of a president who retained top secret documents at his public resort and when asked to return the stolen property returned some while intentionally hiding the others from his own attorneys in further violation of law and who conspired to stay in office by leading a conspiracy of persons from multiple states to submit fraudulent documents in the form of fake certificates of ascertainment to the National Archives and repeatedly cajoling his own vice president to unilaterally recognize the illegal fraudulent certificates and therefore disenfranchise the millions of voters of those multiple states and then encourage a mob to help him interfere in the constitutionally mandated work of Congress in order to fraudulently keep himself in the office of the presidency when he was well aware he lost an election.
I could go on.
@kick,
that did in fact happen, in 1876 i think.
jl
The same argument could be made for Donald Trump -- that no matter what he had done and what he truly deserved in a legal sense, that the experience would be so painful for the country that avoiding it would be better for us all, even if it allowed Trump to walk away from his crimes unpunished.
America is resilient; we've lived through it so far, why would we suddenly grow unable to stand the "pain" inflicted upon us so far?
Does anyone seriously believe the DOJ should punish those persons who committed acts of physical criminal violence at the Capitol while ignoring the plethora of crime committed in conspiracy that led Americans to commit those crimes?
We punish crime in America to deter future criminals; we should definitely be punishing presidents to deter future criminal presidents.
Or are we pathetically incapable of learning the lessons of history?
No pardon. No way.
Nice article, CW. :)
as to the pardon question, it would clearly depend on Donald being finally able to accept the fact that he'd committed crimes that required pardoning.
nypoet22
6
that did in fact happen, in 1876 i think.
Define "that" which you "think" happened, and I'll definitely follow up. :)
Samuel Tilden supporters sent slates of fake electors for states he'd lost to Rutherford B Hayes, essentially the same thing John Eastman tried and failed to do on behalf of Donald Trump.
nypoet22
10
Samuel Tilden supporters sent slates of fake electors for states he'd lost to Rutherford B Hayes, essentially the same thing John Eastman tried and failed to do on behalf of Donald Trump.
Well, I wouldn't agree it was "essentially the same thing" and certainly not with the intent to defraud "after the fact" because Tilden had actually won the popular vote by about 250,000 -- a massive amount way back in 1876 -- and was also ahead in the Electoral College count; however, there was rampant voter suppression in the South where Blacks were being denied the right to vote through intimidation (up to and including murder). Long story short, there were still a few Southern states with Republican governors and "returning boards" that would determine the official electoral votes in those Southern states, determining which votes to count and which to throw out if deemed fraudulent. The Republican returning boards in all three states argued that fraud, intimidation, and violence in certain districts invalidated votes, and they threw out enough Democratic votes for Hayes (R) to win, and then all three of the Republican returning boards awarded their states' electoral votes to Hayes: South Carolina, Louisiana, and Florida (where Tilden had initially won the popular vote albeit through Black voter suppression) and each side also submitting sets of election returns to DC with different results.
Fast forward again to the "Compromise of 1877" and the bargain among Democrats and Republicans in DC to end Reconstruction in the South with the compromise of Hayes.
However, did a President Tilden retain lawyers like Chesebro, Eastman, Giuliani etc. to interfere in an election he knowingly lost (after multiple lawsuits and multiple recounts) by leading a national conspiracy and the president himself personally attempting to cajole his own vice president to act on his behalf and encouraging a mob to descend on the Capitol in order to assist in his interference of the constitutionally mandated work of Congress so that he could remain in office by fraudulent means when he was well aware he lost a presidential election?
No... because despite Tilden winning the popular vote in 1876, there was never a POTUS Tilden and hence no reason to discuss the myriad reasons whether or not that president should be federally prosecuted or pardoned.
The Chesebro memo:
https://int.nyt.com/data/documenttools/chesebro-dec-6-memo/ce55d6abd79c2c71/full.pdf
It's actually hilarious that ya'all sincerely believe that Token DEI Hire Headboard Harris actually has a snowball's chance in hell of winning this election.
Ya'all have access to all the same facts that I have access to..
And there is not a single solitary fact or set of facts that would indicate Headboard Harris and NO BALLZ Walz can actually WIN this election..
Ahhh well.. We only have to wait 12 more days and the reality will set in for ya'all..
The reality of 4 more years of President Trump... :D
And then the REAL Weigantian Party begins!!! :D
As for right now?? Time to hit the streets of Duval County and make those streets safe for Democracy... :D
See ya in a couple days.. :D
It's actually hilarious that ya'all sincerely believe that Token DEI Hire Headboard Harris actually has a snowball's chance in hell of winning this election.
What's more hysterical is a prattling dipshit claiming repeatedly to know what everyone else "sincerely believes." Now that's what I call a retread. Oops, my "e" is sticking, I meant to type: Moldy ass troll with man boobs and an irrefutable intellectual disability.
Ya'all have access to all the same facts that I have access to..
And I guess it never occurred to the self-proclaimed mind-reading mental midget's withering brain cell that some of us have access to something that he doesn't even know exists, and that makes the troll a demonstrable moron. Oops, I meant "more on"... dang that sticking "e" key.
So if Kamala Harris becomes president and is tempted to avoid all the drama of Trump's impending court cases, I would caution her to think not so much about the time it would take to try him and how divisive it would all be, but instead to think of all the years after that, and what message it would send to others.
Exactly! Besides, we already know what a Trump judicial proceeding is like. The Defendant sleeps through the majority of the trial, and his woefully inadequate lawyers wake him up when the verdict is delivered where he loses.
America can handle it. :)
Upon further review, CW, this was a pretty silly column for you to write. What with eleventy-gazillion things going on right now THIS is what you invested our collective attentions into — a right-wing gotcha question?
well, there's a week and a half to go, so i guess we'll find out.
Question: If Trump becomes President and orders the DOJ to drop all of the cases against him, the judges still have to agree to dismiss them so they can go away, right?
The judges are not required to dismiss the cases simply because the government wants them dropped. It just seems to me that the court might have a problem dropping a case based solely on the job title a suspect obtained after the case was filed. Trump entered this campaign in an attempt to avoid being sent to prison.
Trump has said if he is elected, he will fire Jack Smith as soon as possible, but the judge would have to agree to take Smith off the docket for that to happen. When has a defendant ever gotten to choose who they wanted to prosecute the case against them? I do not believe Trump will avoid being held accountable for his actions.