Should President-Elect Joe Biden Pardon Trump?

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Article II, section 2, clause 1of the Constitution grants Presidents the extraordinary powers to grant clemency to those who have committed federal crimes. Pardons for previous administrations have been documented and the most infamous pardon was President Ford’s pardoning of Richard Nixon for his involvement in the Watergate scandal. Pardon’s are no stranger to modern times as Bill Clinton, George W. Bush and Barack Obama have used pardons as well, albeit to some controversy. However, in politics, the US is in unchartered waters and the consideration of pardoning Donald J. Trump is a decision that should not be taken lightly. So, should Joe Biden consider a pardon for Donald Trump to heal the nation and potentially unite congress? It’s a difficult question to analyze when the answer is a double-edged sword.

President-elect Joe Biden was asked if he would pardon Donald Trump for his federal crimes and Joe Biden committed to not pardoning the outgoing President. In a wise political maneuver, Joe Biden has elected to leave the prosecutorial decisions to the Justice Department. This question was asked before Biden’s campaign gained steam in the Democratic primaries and no doubt this has been in the mind of the president-elect.

“Lock them up”, was a rallying cry for Donald Trump to sensationalize his base. His anti-establishment rhetoric was a rallying cry to dehumanize his political opponents. The President called for Hillary Clinton, Barack Obama, and current president-elect Joe Biden to be thrown into jail. Trump questioned US Attorney General Barr, ‘Where are all of the arrests?’, then he would tweet on his Twitter account demanding that his opponents be jailed and viciously attacked his allies that would not arrest his opponents. The President claimed without evidence that his political opponents were attempting a coup. While the president’s frantic rhetoric would never be taken seriously in a court of law it did turn the US into an uncomfortable climate we were not accustomed to. Not only was the President calling for the arrest of his political opponents but he was also using the US Attorney General as his Lawyer. If Biden elected to prosecute Trump then the country would not heal and would be thrown into more partisan polarization. It would also create a paradox with the Democratic party who abhorred the ‘lock them up’ chants that echoed within the GOP.

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Joe Biden was quoted as saying “No President is above the law…and that talking about arresting a previous president would not be well for democracy”. Indeed, prosecuting a leaving president would only lead to more entrenchment in a deeply polarized country. However, it is also dangerous for a democracy when a president taunts federal law and not be held accountable. While Joe Biden masterfully side-stepped the question he did contradict himself. If Donald Trump receives a pardon from Joe Biden then that sends a signal to Biden's base and toward future politicians who seek to undermine the law for their benefit.

If Biden prosecuted Trump it would also paralyze his agenda which would be detrimental to the country during a time of social unrest and a pandemic. Congressmen in congress would seek to defend Trump to protect their voter base, a large majority of them support Donald Trump. These Congressmen would not put their campaigns in jeopardy and risk losing out on those votes. It’s also most likely they will see intimidation and death threats if they voiced their intent to hold Trump accountable. In simplest terms, it is in their own best personal interest to support Trump if Biden elects to prosecute. Already, we’ve seen over one-hundred congressmen support Texas in its attempt to overturn the election results in key-battle ground states. An attempt that has been rejected by the Supreme Court. A prosecution would not likely do Biden any favors with these elected officials who supported Texas overturning those votes.

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However, the long-term consequences of not prosecuting the President can be negative as well. As we’ve witnessed, we witnessed a President that has tried to seek foreign interference in US elections from Russia and China, we witnessed a president try to interfere in investigations, obstruct justice, destroy political norms and use the presidency to increase his families wealth. For the most part, the president stood unopposed by his party except for a handful within. Not only was the president allowed to continue this radical behavior, but his base and the GOP party cheered him on. There was no consequence for Trump’s actions, his rhetoric, or his rule-breaking. This will set a dangerous precedent for future politicians who seek to abuse the system for their benefit. That is the seed that the ousted president has planted and when this seed blossoms it is anyone’s guess.

So the paradox is if Biden prosecutes Trump then there will be no peace between parties. However, we’ve seen some indication from the GOP that there will be no reconciliation, compromise, or peace. Biden will potentially create more polarization within the country and his agenda will be dead on arrival. However, if Biden does not then future politicians will abuse the system without punishment, and Democracy declines even further in our country. Biden will also anger those who are not considered established democrats and would have to do damage control if he elects to run again in 2024.

The best-case scenario for Biden politically is for Donald Trump to pardon himself, then let the courts and the GOP deal with the blowback. Donald Trump would not be able to escape prosecution from the state and those pending cases will continue when Trump loses Presidential immunity on January 20th. The best-case scenario for Biden is not the best-case scenario for democracy or our country as a whole but Biden would escape the political fallout if Trump were to pardon himself.

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