Pardon me? Why Biden should pull a Gerald Ford when it comes to Trump | Bruce Ledewitz

And for the same reason — for the good of the country and the health of our democracy

June 28, 2023 6:30 am
Former U.S. President Donald Trump waves as he makes a visit to the Cuban restaurant Versailles after he appeared for his arraignment on June 13, 2023, in Miami. Trump pleaded not guilty to 37 federal charges including possession of national security documents after leaving office, obstruction, and making false statements. (Photo by Alon Skuy/Getty Images)

Former U.S. President Donald Trump waves as he makes a visit to the Cuban restaurant Versailles after he appeared for an arraignment in connection with allegations he kept classified documents after leaving office, June 13, 2023, in Miami, Florida. (Photo by Alon Skuy/Getty Images)

Thanks to Steven Levitsky and Daniel Ziblatt and their 2018 book by that title, we have a pretty good idea of How Democracies Die.

One way democracies die is that a downward spiral of informal norm violations takes place—each one undertaken in retaliation against provocations from the other side. Things just continue getting worse until finally the democratic system collapses.

America’s democracy is dying in just this way.

That is why former President Donald Trump’s big lie that the 2020 election was stolen was so devastating. Never before had a president refused to concede defeat and tried to convince supporters that a successor had not been legitimately elected.

But one democratic norm that Trump did not breach was prosecuting the losing candidate in the 2016 election—former Secretary of State, Hillary Clinton. 

Clinton certainly could have been charged for her mishandling of classified material in a personal email account. Whether she would have been convicted is another matter.

Now, with the Trump indictment for first taking classified materials, and then refusing to return them, that final democratic norm is in danger.

That is why President Joe Biden should pardon Trump, right now.

It goes without saying that the indictment is legally justified, as reasonable Republicans like former Attorney General William Barr have been quick to point out

But this is not a simple case of just following the law.

Other major politicians have illegally retained classified materials after leaving office, just not as flagrantly as Trump nor on such a large scale. 

Nor did they, as he did, obstruct FBI efforts to regain possession of the material.

So, Trump is being prosecuted not so much for violating the law as for his arrogance and contempt.

Again, legally justified, but not everyone who violates the classified materials law is prosecuted.

Nor is this a case of intentional harm to the interests of the United States. In typical blowhard style, Trump showed off secrets to demonstrate his importance. But Trump did not give aid and comfort to America’s enemies. He did not share attack plans with Putin.

At a similar point, in 1974, President Gerald Ford pardoned disgraced President Richard Nixon without any insistence that Nixon admit wrongdoing.

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Ford asked a simple question: Is prosecuting the former president in the best interest of the country?

Democrats, especially, should ask themselves the same question. What do they expect will happen if Trump’s trial goes forward?

Despite Federal Judge Aileen Cannon’s setting the case to go to trial this coming August, given the importance of the case and the complicated facts, especially concerning the obstruction charges, Trump’s trial probably won’t begin until next summer, after the primaries are over and maybe even after the Republican national convention in Milwaukee, July15-18, 2024.

So far, the indictment has strengthened Trump’s hold on Republican voters and has frozen all attacks on Trump by his Republican rivals for the nomination. Nothing about the pretrial maneuvering will change that. 

So, unless there is a pardon or something else happens, Trump will breeze through the primaries, win the Republican nomination for president and the Republican convention will consist of a three-day orgy of how innocent Trump is and how guilty and corrupt the Democrats are.

Then, the trial will take place. Since the evidence seems clear, Trump will be convicted on all or most counts.

So what? Trump will appeal. He will begin his fall campaign for president. No court will lock him up at that point. 

And even if he were in jail, nothing would actually prevent his continuing to run for president. His appeal will not be decided until well after the next president is inaugurated on Jan. 20, 2025.

Democrats are assuming Trump will not be elected under these circumstances. But what makes them so sure? Biden is unpopular. Maybe Trump will win anyway.

And even if Trump loses, does this scenario strike anyone as good for the country?

Worse, if Trump does lose the 2024 election after his conviction, millions of Americans will believe that the Presidency was stolen a second time through a political prosecution. 

This would be catastrophic for America.

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Now consider what could happen if Biden pardons Trump.

Biden would say to the country, “Look, this bum is guilty as can be. The Justice Department had no choice but to indict him. But millions of my fellow Americans sincerely believe that he is an innocent victim. I am not going to put the country through a trial if I can avoid it. If he is as innocent as he says he is, let him reject the pardon and go to trial. That would be his choice.”

Trump of course would accept the pardon. He is no fool. 

Trump would claim that the pardon shows that there was no case. But the same Republicans who are now defending the indictment would repeat for the public, on Fox News, that Trump was guilty.

At that point, there would be a chance—not a certainty I admit, but a chance—that Trump’s Republican rivals would take the gloves off and start actually attacking him. Maybe they would finally sense they might beat Trump for the nomination.

If this happened, Trump really would be mortally wounded. He might still win the nomination, but even Republicans would not fully support him in the general election.

There is even the chance that Trump would lose the Republican presidential nomination.

And that is really the problem. 

There are plenty of Democrats who can see that a pardon for Trump would best serve the  interests of this country.

But it would not best serve the interests of the Democratic Party.

For Joe Biden’s reelection prospects, an indicted Trump, followed by a convicted Trump, is a very good option. The indictment pretty much ensures Trump’s Republican nomination while the clear evidence supporting the indictment hurts Trump with the general electorate. 

I concede that this is all true. If politics is all that matters, let the trial and conviction take place. 

But I urge my fellow Democrats to ignore short-term political advantage.

What the country needs is not to prosecute Trump but to get rid of him once and for all. The best, and safest, place to do that is in the Republican primaries. The only possible way for that to happen is for Biden to pardon Trump.

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.