A preemptive pardon is tricky. Rep. Matt Gaetz didn’t get one four years ago, but it wasn’t for lack of trying. According to two Trump White House aides who testified before the January 6 committee, Gaetz sought a pardon after being informed he was a target of a Justice Department probe into sex trafficking authorized by then Attorney General Bill Barr.
Other members of Congress implicated in the January 6 insurrection also clamored for blanket protection from a brooding President Trump, who refused to accept he had lost the election. He ignored their entreaties, even though as president he had issued nearly 150 pardons, including to rabid supporters Roger Stone, Paul Manafort, and Michael Flynn.
Trump knows how the game works, and he’s been upfront for months about using every lever of government to seek retribution from those who he believes wronged him. His choice for Attorney General, Pam Bondi, is an election denier who should be disqualified on that alone. Instead, she is expected to lead the charge purging the DOJ of anyone who worked on prosecuting Trump, while also wasting taxpayer money to dig up alleged fraud from the 2020 election.
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Trump has threatened many of his adversaries, and he will soon have the power to make good on his threats.
President Biden must act and use his pardon power to safeguard a lengthening list of people who are on the receiving end of Trump’s threats. They will say they’ve done nothing wrong, and they’re right. Preemptive pardons are problematic, a get-out-of jail free card when you haven’t committed a crime. But they’re needed now that President-elect Trump is gearing up his revenge tour.
In back to back filings on Monday, special counsel Jack Smith proposed dismissing the government’s cases against Trump, one related to his actions on Jan. 6, 2021, and the other related to government documents that he shouldn’t have taken and refused to return.
Trump says Smith should be “thrown out of the country.” Republicans are unified in wanting to exact a price for what they see as a weaponized DOJ hounding Trump for baseless reasons. Criminally prosecuting career lawyers who were doing their job is unlikely to result in evidence of prosecutable wrongdoing, but that’s not really the point.
Destroying his enemies is the point. Hounding them with baseless lawsuits ruins their lives as they struggle to find the means, financially and otherwise, to defend themselves.
That’s why preemptive pardons are necessary. Before he leaves office, Biden should pardon Liz Cheney, a profile in courage who we haven’t heard from since the election, and Nancy Pelosi, another unafraid leader and favorite target of Trump.
Then the two Generals deserve pardons: Mark Milley, who said he fears being recalled into service so Trump can court-martial him, and John Kelly, Trump’s longest serving chief of staff who said Trump is a fascist. Also in the crosshairs are Adam Kinzinger, the former GOP congressman who served on the House Jan. 6 committee, and Senator-elect Adam Schiff, who oversaw Trump’s impeachment and is the butt of Trump’s nasty nicknames.
“It would be a very unorthodox move (to preemptively pardon), but incoming presidents normally don’t come in threatening prosecution of specific individuals from the previous administration—so it’s something Biden should seriously consider, even if there are reasons not to do it, namely the presumptive admission of guilt,” says Jack Pitney, professor of American politics at Claremont McKenna College.
Accepting a pardon implies a measure of guilt, which is why some people might choose to tough it out, knowing they did nothing wrong. For those who feel that way, take Trump seriously and literally. He has told us what he’s going to do. Believe him. Better safe than sorry.
“It’s just hard to imagine Pam Bondi having philosophical discussions with Trump on how this is not appropriate,” says Pitney. “She will basically do whatever Trump wants.”
Whatever philosophical discussions there are will take place as the Biden presidency winds down, and the case is made to Biden that preemptive pardons will enhance his legacy. They are the right thing to do. The alternative is to allow Trump free rein, which is not the message Biden should leave for history.
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