Pardon Me?

By Nick Catoggio

Thursday, April 06, 2023

Every publication has rules for staff and The Dispatch is no exception. “Avoid profanity.” “Double-check your facts.” “Jonah isn’t allowed on Advisory Opinions.”

I respect the rules. But there’s one I struggle with: “Absolutely no hot takes.”

It’s a good rule. A thoughtful audience deserves content commensurate with its own thoughtfulness. In an industry that rewards barely considered insta-reactions to news, we aim to chew our food before we digest it.

But I spent 16 years firing off hot takes day by day, hour by hour. You can take the boy out of the blog but you can’t take the blog out of the boy, at least not without an occasional relapse.

Which brings us to the subject of this newsletter: Should Trump be pardoned in the Stormygate matter for which he’s been indicted in Manhattan? Might he be?

Answering those questions qualifies as a hot take, I think, because there’s no reason to believe a pardon is forthcoming. The topic is provocative but its irrelevance makes it gratuitous, and gratuitous provocation is the essence of a hot take.

It’s worth considering anyway for two reasons. First, there are arguments that Joe Biden should consider granting clemency to Trump, if not very good ones. Second, the subject of pardoning Trump is destined to be broached in the coming Republican presidential primary.

In fact, it already has been.

***

Having read this far, many of you have already zeroed in on an objection. Biden can’t pardon Trump for what he’s been charged with by Manhattan District Attorney Alvin Bragg because those are state offenses.

The president’s power of clemency is limited to federal offenses. Every lawyer knows that, and many laymen have been forced to acquaint themselves with it in recent years thanks to the interesting questions relating to the pardon power raised by the conduct of the previous administration.

Biden can’t pardon Trump for the state felonies related to false record-keeping alleged by Bragg. But those crimes are felonies under New York law only because, according to the DA, they involve “intent to commit another crime or to aid or conceal the commission thereof.” Amazingly, what that second crime might be remains unclear despite the fact that the indictment was released two days ago and Bragg himself held a press conference about it.

It’s assumed that the second crime involves violating the federal limit on campaign contributions. The working theory is that Trump’s payments to Michael Cohen to reimburse him for the hush money paid to Stormy Daniels were made to assist his 2016 campaign and so should have been capped at the statutory limit for campaign donations. That would be a federal offense, not a state one.

What would happen to Bragg’s case if Biden were to pardon Trump for that underlying federal offense?

It would fall apart, claims GOP presidential candidate Vivek Ramaswamy in a new op-ed. He cites legal precedents suggesting that a state charge based on a pardoned federal offense won’t stand up. If Biden were to pardon Trump on the (unprosecuted) federal campaign finance violation, Bragg’s felony case would become a misdemeanor case. And the statute of limitations for a misdemeanor record-keeping crime in New York is just two years, long since expired in this instance.

Is that worth doing?

Arguably, sure. Part of Biden’s 2020 pitch was ending the divisiveness of the Trump era. “Now it is time to turn the page, to unite, to heal,” he said on the day the Electoral College affirmed his victory. Wherever one stands on the merits of Bragg’s prosecution, it’s indisputable that proceeding with it will set back the cause of unity, healing, and page-turning. Biden could fix that. “Just imagine it: The soft stroke of a presidential pen, extending grace to someone wholly undeserving of it, might be the initial trace of a bold line of example that could grow into a bridge connecting the rocky shores of a nation divided,” wrote Mark Weaver, a former state deputy attorney general, last month in Newsweek.

There are also selfish reasons for Democrats to consider a pardon.

Numerous commentators, many of them liberals, have lamented the weakness of Bragg’s case after reading the indictment. The New York Times lent its op-ed page on Wednesday to law professor Jed Shugerman to argue that the charges are nothing less than an embarrassment. The odds of Trump having the felony charges dismissed or being acquitted at trial seem vastly greater than the odds of him doing any time. If he does walk free, it’ll embarrass Bragg and his party and enhance Trump’s populist mystique as a hero whom “the system” can’t subdue.

Biden could blow it all up by pardoning him. A prosecution that looks primed to become a fiasco for Democrats and the rule of law would be transformed in an instant into a story about Democratic statesmanship and magnanimity. “Trump surely would have been convicted if the president weren’t such a nice guy,” Bragg could say, falsely.

Trump would be conflicted, I suspect, relieved that he’s off the hook but angry that he’d been deprived of a chance to defeat Democrats in court and embarrassed to be the subject of Joe Biden’s mercy. He craves dominance; owing his freedom to having been “rescued” by his elderly adversary wouldn’t sit easily with him.

And it would deprive him of one of his favorite talking points, that liberals are forever out to get him. “One of Trump’s most potent appeals to Republican primary voters is the claim that Democrats want to suppress and criminalize their opposition, and that this requires an extraordinary electoral response from the GOP,” wrote Jason Willick last year. “A pardon would partially preempt this claim, while a grinding prosecution would produce unending news cycles that Trump could use to dominate a primary.”

Inasmuch as Democrats fear a second Trump term and are willing to try to influence the Republican primary to his detriment, snatching away the martyr status he’s cultivating from his criminal jeopardy might help. The most recent national primary polls have him running away from Ron DeSantis as the Republican base rallies around him and his endless persecution complex. If Biden were to drain some of the energy around that by pardoning him for the underlying crime in Manhattan, Trump’s numbers might fade.

Biden could even “dangle” a pardon with conditions attached. As deeply corrupt as it would be for him to offer Trump, say, full clemency from all federal offenses—including January 6 and concealing classified material at Mar-a-Lago—in exchange for Trump quitting politics, there’s nothing stopping him from doing it. Frankly, a deal in which Trump is excused from all prior criminal offenses on condition that he never bothers America again is one that I, if given the power to arrange it, would probably support.

There are so many arguments for Biden to grant clemency to Trump that it almost escapes classification as a hot take.

Almost.

***

Some of the counterarguments are obvious.

For starters, there’s no universe in which Trump would agree to quit politics for a conditional pardon freeing him from accountability for federal offenses. We’re talking about a guy who left the White House with droves of classified documents and then hid them from the DOJ for no better reason, apparently, than that he had decided they were rightfully his.

His brain runs on pure grievance now. He wants a second term so that he can punish his enemies and expose the so-called stolen election of 2020. Not even the prospect of having his federal criminal liability expunged entices him as much as his revenge fantasies do, I suspect.

It’s also, shall we say, highly uncertain that Democrats want to see him defeated in the Republican primary.

Some do, recognizing that defeating Trump with an enfeebled 82-year-old is no slam dunk. But Democrats have fared very well in elections against conspiratorial MAGA populists over the last six months, even spending millions of dollars to help those populists defeat more electable candidates in Republican primaries. Given the choice of facing Florida’s very young, very sharp, quite popular governor and an alternative who’s none of those things, many Dems choose door No. 2.

“I’d say in a general election Trump may be the weakest of the major GOP contenders,” said Democratic strategist Mark Longabaugh. “And he likely will take on more water over time as several of the other legal cases play out.”

…

Biden advisors are confident that … swing voters are now permanently out of Trump’s reach, according to the four senior people. They have a difficult time imagining that a voter who went for Trump in 2016, but then ran away from him in 2020, would return to cast their ballot for the former president after the Jan. 6 insurrection, several criminal investigations and years of election denialism.

“What possibly would you like about what Trump has done since Election Day 2020?” one Biden aide mused.

If pardoning Trump would cool the right’s ardor for him and open the door to nominating the more formidable DeSantis, why exactly would Joe Biden want to do that? Particularly given the risk that swing voters might interpret the pardon as validating Trump’s theory that he’s done nothing wrong. Biden wants Trump’s misconduct held against him at the polls even if it’s not held against him in court. An act of clemency would complicate that.

There’s also the small matter that many “Resistance” types would be irate if Biden pardoned Trump.

He promised them he wouldn’t, after all. “Absolutely, yes. I commit,” he said in May 2020 when asked if he’d pledge not to grant Trump clemency. “It’s hands-off completely. Look, the attorney general of the United States is not the president’s lawyer. It’s the people’s lawyer.” It’s true that many liberal commentators find Bragg’s case weak and even unseemly, but rank-and-file Democrats don’t care. They’re practically unanimous—94 percent!—in supporting the indictment.

If you were the president’s chief of staff, would you advise him to take a position opposite 94 percent of his base at a moment when he might still, in theory, face a serious primary challenge?

There might have been some room for Biden to maneuver politically had the defendant appeared contrite, but Trump can’t even spell “contrite.” The Manhattan judge who’s overseeing his case is receiving death threats; biographies of staffers in Bragg’s office have been scrubbed from the DA’s website for similar reasons. Everyone who makes real trouble for Trump ends up fearing for their lives, no doubt just as the man himself intends it. He’s the least sympathetic defendant imaginable. By what right should he, and not more deserving convicts, be pardoned?

You can’t have “unity and healing” with a movement like his. You’d be a sucker to even try.

Another thing. Assuming that Biden pardoned Trump only for the campaign finance offense in Manhattan and not for any crimes committed in connection with January 6 or concealing classified documents at Mar-a-Lago, how would he justify that? If the point of granting clemency is to promote “unity and healing” by wiping the proverbial slate of the Trump era clean, logically Biden would need to pardon him for all potential federal offenses. He can’t pick and choose.

There are ways to justify doing so, I suppose. “Trump’s actions as president are worthy of scrutiny,” Biden might say, “but we shouldn’t waste public resources investigating him for something he did before he took office.” Okay, but … why? The payoff to Stormy Daniels was, to all appearances, designed to help Trump win the 2016 election. It wasn’t a purely private matter; it too bore directly on his presidency.

To make matters really strange, because Bragg’s indictment is so vague, it’s not clear that pardoning Trump for violating the federal limit on campaign contributions would actually expunge the “second crime” alluded to in the indictment. My friend Patrick Frey, a prosecutor in California, has argued that the “second crime” in this case isn’t something that Trump did, it’s what Michael Cohen did when he admitted to numerous federal offenses in connection with the case. New York’s statute makes it a felony to keep false records with “intent to commit another crime or to aid or conceal the commission thereof.” If Bragg is alleging that Trump aided Cohen’s crimes, not a second crime of his own, then presumably Biden would need to pardon Cohen to destroy the predicate for convicting Trump of a felony.

Asking him to pardon Trump is asking a lot. Asking him to pardon an already convicted Trump crony in order to execute a bank-shot pardon of Trump is asking … hoo boy.

See why I call this a hot take? It’s not going to happen.

***

It’s not going to happen as long as Joe Biden is president, I should say.

But there’s a not unlikely scenario in which a Republican has replaced him by 2025. If Trump hasn’t yet stood trial by Inauguration Day, what are the odds that our new Republican president will try to short-circuit Bragg’s prosecution by pardoning him?

Gotta be 100 percent, I think. Especially now that Ramaswamy has thrown down the gauntlet.

That’s a vintage example of a no-shot candidate feeling thirsty for attention and doing something bold to make a splash with his party’s base. But you know how the GOP works: Now that one candidate has pandered to populists by proposing a new litmus test, other candidates will have to pass that test to prove their own populist mettle. Eventually Ron DeSantis will be asked whether, as president, he’ll try to intervene in New York’s prosecution of Trump by issuing a pardon.

Is there any doubt what he’ll say?

If there was, the last shred of it was erased last week when he vowed to ignore the U.S. Constitution if New York made an extradition request of Florida for Trump’s return. If he’s willing to break the law to protect Trump in the name of ingratiating himself to populists, he’s surely willing to use the pardon power in a dubious but lawful way to the same end.

DeSantis could even offer his own version of a conditional pardon to Trump behind the scenes if he wins the nomination. “I’ll pardon you from all federal crimes if you endorse me and encourage your fans to turn out for me in November.”

But I doubt Trump would take that deal. Once again, revenge—on DeSantis this time—motivates him more than his own liberty does, I suspect. And realistically, DeSantis would have no leverage on him. One can imagine Trump’s counteroffer: “I’m not endorsing you. And if you win, you’re going to drop all the federal charges against me anyway because our base will hate you if you don’t.”

And he’ll be right. 

It’s a moot question, though, since DeSantis will have already publicly promised to pardon Trump before clinching the nomination, knowing that grassroots Republicans would hold it against him if he didn’t. And that’s apt to be the way this issue matters most in the coming campaign: Having been boxed in by the unpopular desires of the GOP base, the party will be stuck defending a controversial position in the general election that will alienate most of the rest of the country. That’s how it is with strict abortion bans, that’s how it’ll be if Trump himself is on the ballot, and that’s how it’s destined to be once “pardon Trump!” becomes a rallying cry in the primary.

A rational party wouldn’t engage in such foolishness. But, well, you know.