Donald Trump and the Pardon Debate

In early August, 1975, President Gerald Ford granted amnesty to a polarizing figure whose actions had posed a grave threat to American democracy. The man in question was not Richard Nixon, whom Ford had pardoned eleven months earlier, but General Robert E. Lee. After the Civil War, the prospect of prosecution had loomed over former members of the Confederacy. In 1865, President Andrew Johnson issued a proclamation that absolved most of them but excluded, among others, Confederate leaders and those who held property worth more than twenty thousand dollars. Three years later, Johnson, who felt that it was simply time to move on, issued another proclamation, which expanded the pardon to include the men, such as Lee, who had organized and led the rebellion. Still, having renounced their U.S. citizenship and taken up arms against the government, they were required to swear an oath of allegiance and make a formal request to regain their rights. Lee’s application was lost—one theory holds that Secretary of State William H. Seward gave Lee’s paperwork to a friend as a souvenir—and he died, in 1870, a man without a country.

When Ford reinstated Lee as an American citizen, albeit a dead one, he stretched the truth to the point of prevarication. Lee’s character, Ford remarked, had been “an example to succeeding generations” and the reinstatement was therefore “an event in which every American can take pride.” Nixon’s pardon was far more controversial, but it followed a similar logic. Speaking to Bob Woodward, in the late nineties, Ford explained that Watergate had become such a debacle that there was no hope of making progress on any domestic or foreign-policy issue until it was resolved. He was, in his telling, motivated by concern for the nation’s fate, not Nixon’s. Despite the scale and the destructiveness of his predecessor’s actions, he argued, it was time for the nation to move on.

Late last month, Donald Trump, the twice-impeached, serially indicted former President of the United States, arrived at a courthouse in Atlanta, Georgia, to face charges stemming from his alleged attempt to overturn the results of the 2020 election. By then, the spectacle of a former President being indicted had gone from unprecedented to old hat. In addition to the sprawling Georgia case, grand juries have returned indictments against Trump in a business-fraud case brought by District Attorney Alvin Bragg, in New York, and in two federal cases brought by Jack Smith, a special counsel for the Department of Justice: the first, in Florida, relates to the mishandling of classified materials, and the second, in Washington, D.C., to election interference. (Trump has pleaded not guilty in all of them.) The most damning charges appear in the election cases, which concern Trump’s attempts to retain the Presidency after being voted out of office. Those attempts, of course, culminated in the January 6th assault on the U.S. Capitol—the most significant threat to the peaceful transition of power since the conflict at the center of Robert E. Lee’s forfeited citizenship.

It is not entirely surprising that Trump’s federal indictments have inspired murmured appeals for President Biden to issue a preëmptive pardon. (On the state level, it’s difficult to imagine New York’s governor issuing a pardon. In Georgia, the governor has no such authority.) After the first federal indictment, in June, Marc Thiessen and Danielle Pletka wrote, in the Washington Post, that “millions will see Trump’s prosecution as illegitimate, and any conviction as unjust. That will further erode public confidence in our judicial system and the principle of equal justice under law.” After the second, in August, an op-ed in the Miami Herald held that Trump should be pardoned “because the impact an extended trial and sentencing might have on our democracy is just too terrifying.” The senseless sloganeering that produced the phrase “too big to fail” during the Great Recession has a contemporary corollary: too big to convict.

The common theme underlying these arguments is the sentiment that the Trump era was rancorous and difficult enough, and the work of upholding the rule of law is slow and protracted and will only deepen national divisions. It is time—let’s say it in unison—for the nation to move on.

Of all the rationales for pardoning Trump, the most substantial is the contention that prosecuting political rivals is almost always the hallmark of an autocracy. Under most circumstances, this would be true. Yet the proponents of this argument seldom acknowledge the inverse—that the refusal to prosecute someone, or reflexively pardoning that person precisely because he’s a political rival, is at least equally corrupting to a democracy. It’s not unimaginable that thoughts of the Nixon pardon assuaged the members of Trump’s inner circle as they rampaged over norms, policies, and laws. Abiding lawlessness among the powerful has a way of breeding more of the same. The relatively lenient terms of the Confederate amnesty, for instance, almost certainly facilitated the rise of violent white militias that nullified the voting and citizenship rights of Black people throughout the South in the Civil War’s long aftermath.

It’s also worth recalling that Trump glided into the White House buoyed by an understandable sense of his own impunity. Despite the years-long tax schemes, chronicled by the Times, and the claims of sexual assault made by more than two dozen women, there has always somehow been a reason not to prosecute Donald Trump. He has enjoyed the amnesty of wealth his entire life—a troubling exemption, though one that, unlike the current calls for amnesty, was never passed off as something in our collective best interest.

The key problem with “moving on” is the indeterminate direction. Where to? There are times when it is in the best interest of a nation not to seek justice despite egregious wrongs. South Africa’s Truth and Reconciliation Commission, which was premised upon remorse and transparency, is one such example. Trump, whose campaign claimed to have raised seven million dollars in less than three days after his mug shot was released, adheres to opposite principles: belligerence and deception. At seventy-seven, for the first time in his life, he may suffer real consequences for his actions. In the short run, this will stoke deeper divisions and heighten animosities. In the long term, this is the safest course for a democracy to take. A pardon would embolden Trump and others like him. It would allow the nation to move on, but toward an even more dangerous future. ♦