It’s anyone’s guess how the federal investigations around Donald Trump will intersect with the former president’s political ambitions. It’s possible no indictment will be filed and Trump won’t run again. It’s also possible he will be indicted on charges related to the 2020 election, the handling of government documents, or both; that he will mount a third presidential campaign, and that America’s 2024 election will be clouded by the incumbent administration’s novel prosecution of a rival candidate of a major party.
There’s an endgame that would avert that destabilizing prospect: If Attorney General Merrick Garland’s Justice Department indicts Trump, President Biden could intervene with the exercise of his pardon power.
Hear me out. I’m not naive enough to think modern politicians are in the habit of sacrificing their own political interests to reduce polarization or strengthen “norms.” But it isn’t clear that pardoning Trump would hurt Biden politically. On the contrary, making such a startling move could put the weary president back in the center of the political universe, scramble political alignments and make his former rival — if he accepts the humbling offer — appear small and weak.
Put to one side the grave criminal scenarios in which Trump was using classified material for blackmail or some other sinister purpose, or secretly directing rioters to assault police at the Capitol on Jan. 6, 2021, and assume the indictment is based largely on what is already known. Biden would announce, after reviewing the charges in detail, that he has nothing but contempt for Trump and that he is offering a pardon precisely because he has no doubt about his (or another Democratic nominee’s) ability to rout the former president in an election, if it comes to that.
But Biden would express his concern, as the ultimate custodian of America’s national interest, about the precedent set by an election-year prosecution that rests in part on untested legal theories about obstruction or document classification by a sitting president. Trump’s acceptance of the pardon would enable Biden’s allies to make political hay of the (dubious) claim that this amounts to a recognition of guilt.
There’s no guarantee, after all, that a prosecution would prevent Trump from mounting a credible campaign for president in 2024 — and it might even help him win the Republican nomination, putting a second term within reach.
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. A pardon would partially preempt this claim, while a grinding prosecution would produce unending news cycles that Trump could use to dominate a primary.
Derived from medieval English kings, the president’s vast constitutional power to pardon is one of the most monarchical that he exercises. The 18th-century English jurist William Blackstone observed that the king’s pardon power functioned because he “acts in a superior sphere” from the rest of the body politic. Biden’s offer of mercy to an opponent would temporarily situate him above America’s warring partisan fiefdoms — dramatically displaying his power to call off, at least for the time being, his own party’s ultras.
Of course, the regal roots of the pardon power mean it sits uneasily alongside the small-d democratic verity that “no one is above the law.” But it speaks to the fact that even in a representative government, political judgment and statesmanship are necessary to sustaining the law’s operation.
Biden takes pride in the independence of his Justice Department, but Garland is not the head of a separate branch of government. In indicting Trump, the department’s prosecutors would be making a political decision of great consequence — but one that Biden has delegated to them and that he has final authority to void.
No matter what Garland decides, close to half of the country might have its faith in the Justice Department shaken by the Trump probe — either because it ends in prosecution or because it does not. A Biden reprieve of Trump (once Garland’s investigation is finished) would pull the Justice Department out of this political vise, helping to sustain its reputation. Progressive dismay would be redirected from the Justice Department as an institution and toward the political process.
This progressive dismay, of course, is one reason a pardon is such a remote possibility. The Biden White House is not one for daring gestures, and it might not care that an indictment helps Trump if Democrats see him as the easiest candidate to beat in a general election. But depending on the charges and context, a pardon could also diminish Trump in a primary, deflating his grievances and making him appear in debt to the magnanimity of his successor.
At the very least, this thought experiment should underscore that if Trump is indicted, the line separating the nation’s legal and political institutions will crumble. As head of the executive branch, Biden sits at the nexus of the two. He could have a unique opportunity to exploit that position to the country’s advantage — and his own.