Presidents have come in for their share of grief and more for pardoning people before they had even been convicted of crimes.
The most famous example is Gerald Ford’s pardon of Richard Nixon, who never fully acknowledged his role in Watergate. Then there was George H.W. Bush’s decision to pardon Casper Weinberger, the defense secretary when Bush was vice president, before his trial on charges that he lied to Congress about illegal arm sales to Iran.
Both presidents faced waves of criticism; Ford arguably lost the election to Jimmy Carter because he let Nixon off the hook.
Now President Biden is mulling his own pre-emptive pardons. But these are of a whole different cloth. In a distressing sign of the political times, Mr. Biden is considering pre-emptive pardons for elected officials and government employees for any possible crimes over several years, though their only crime, as far as we know, seems to be running afoul of the incoming president.
Mr. Biden has less than a week to do it. And he should.
At the same time, Donald Trump has been talking about his own potential pardons of supporters convicted in the storming of the Capitol in 2021. He no doubt hopes that such pardons will whitewash the history of an attempted insurrection that was broadcast in all its chaos and violence on national television.
Pardons by their nature carry an imputation of guilt. This is what Ford thought when he pardoned Nixon. By accepting the pardon, his predecessor was implicitly acknowledging his guilt in the cover-up of the Watergate burglary. At least three dozen of his subordinates went to prison. But Nixon’s public contrition was so faint as to be inaudible. Admitting only to “mistakes and misjudgments,” Nixon consented to release a statement prepared with his lawyer saying that “the way I tried to deal with Watergate was the wrong way.”
For the people whom Mr. Biden is considering for these rare pre-emptive pardons, the calculation is different than it was for Nixon, who almost certainly would have faced prosecution for real crimes.
The people Mr. Biden might pardon — Liz Cheney, Dr. Anthony Fauci and perhaps many of the 60 names on the published list of people whom Kash Patel, Mr. Trump’s pick for F.B.I. director, has singled out as deep-state “corrupt actors” — will have to decide whether to accept the implication of wrongdoing in order to avoid years of harassment and expense in facing down open-ended, high-profile federal inquiries.
Some, like the former Republican congressman Adam Kinzinger and Senator Adam Schiff, a Democrat of California, both sharp critics of Mr. Trump, seem prepared for the challenge. Both have said they do not want pardons, arguing that accepting one would falsely suggest that they had committed crimes.
But for others, like Dr. Fauci, who helped lead the U.S. response to Covid as the nation’s top infectious diseases expert, and Ms. Cheney, a former congresswoman and vociferous Trump critic, a pardon and the insinuation that accompanies it could be a small cost for evading the unending grind of confronting a Trump Justice Department most likely eager to please the boss. Given that, Mr. Biden should use his broad pardon authority to shield Mr. Trump’s potential targets from persecution.
Mr. Biden’s health secretary, Xavier Becerra, a former attorney general of California, has suggested that the president not grant pre-emptive pardons, saying, “It sinks my heart to think that we’re going to use the pardon process in a way that will follow the whims of whoever’s in the White House.”
But I would argue that this transfer of power is a special case, one that invites special measures and ad hoc workarounds. We have an incoming leader who threatened on the campaign trail to lock up his critics. It is Mr. Trump, and not Mr. Biden, who has weaponized the wheels of justice, and Mr. Biden would be justified in using the one tool he has, however imperfect, to stave off what could be gross abuses of the legal system.
By pardoning Nixon without any accountability, Ford short-circuited history. Worse, he allowed Nixon to walk away free and clear. We have also seen other presidents use their license to wipe away, with a pen stroke, penalties facing certain friends and allies, if not the public’s memory of their offenses.
Bill Clinton pardoned the fugitive oil trader Marc Rich, who had been indicted on charges of widespread tax evasion and illegal dealings with Iran, after his former wife made large contributions to the Democratic Party and to his library. Mr. Biden pardoned his son Hunter, facing sentencing on gun and tax cases, from doing time for those and any other crimes he may have committed for the past 10 years.
The people Mr. Trump might pardon — people who ransacked the Capitol to stop an election he lost; people he cultivates and calls “hostages” and who he says were misled during a love-fest by a “deep state” conspiracy, a “vast majority” of whom have “suffered gravely” — are different. More than 1,000 of them have been prosecuted by the Justice Department, tried and convicted. Some are serving long prison terms. They’re counting on the incoming president.
Mr. Trump’s pledge to pardon “nonviolent” people who were at the Capitol on Jan. 6 — “We’re going to do it very quickly, and it’s going to start in the first hour that I get into office,” he told Time magazine — would be an abuse of a different magnitude. Each pardon of a Jan. 6 rioter will further twist what was conceived as an instrument of mercy into a sword of retribution.
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