Current Affairs

Is a blanket pardon for officials on Donald Trump’s hit list a good idea?


Last Wednesday, Politico I mentioned Members of the Biden administration are considering offering pardons to a number of current and former members of the government who may find themselves unfairly prosecuted by the next president. Donald Trump has promised revenge against elected officials and political opponents, along with members of the so-called deep state. He chose Kash Patel, a close ally who has spoken about going after Trump’s enemies, to lead the FBI. This has led people in the White House to question whether a pardon is the only way to protect potential targets, including the former chief medical adviser. Anthony Fauci and former FBI Deputy Director Andrew McCabe.

President Joe Biden sparked backlash last week when he pardoned his son, Hunter, for convictions on tax evasion and gun charges, as well as for any potential crimes spanning the past decade — a so-called blanket pardon. Several Republicans, including Trump, have threatened to go after Hunter in the same way they threatened Fauci and others, but Hunter remains the only known figure Biden has pardoned so far.

To talk about the benefits and drawbacks of pardons for people Trump targets, I recently spoke by phone with Rachel Barkow, a professor at New York University School of Law and an expert on criminal law and mass incarceration. During our conversation, which has been edited for length and clarity, we also discussed the practical difficulties of trying to protect people from Trump, whether blanket pardons are constitutional, and whether pardon power makes sense in 2024.

What do you think of the idea of ​​a blanket pardon for people whom Trump has targeted for some form of punishment?

Well, that wouldn’t be my top priority for clemency. There have been a lot of people who have petitioned the Biden administration, who have followed all the rules, who have filled out all the paperwork. They have been waiting for years and are in line, and it has a very low grant rate for these people. These are the people who I think should get his priority attention right now.

But this is clearly unusual. We have no examples of such blanket pardons, except for President Nixon and now for Hunter. It’s not like there’s a long history of doing something like this, but we live in a strange time. We have also not seen any instance of the incoming administration threatening to engage in retaliatory political investigations and potential prosecutions of people. I think these strange times would be the only reason you would consider doing something like this.

What negatives do you see?

The first is to make sure that you really have a comprehensive list, because if you’re going to designate certain people to protect and miss others, the people you’re missing will be the people that the next administration will target. Suppose the current administration pardons twenty or thirty people. It’s not as if there aren’t others who also worked on congressional investigations into Trump, or were part of the January 6th trials, or were members of Mueller’s team — whoever is on Trump’s list.

If you’re not comprehensive in terms of the list of people you’re protecting, I suspect what the next administration will do is just go ahead and find the rest of them and prosecute them. Because doing so still enables it to do what it aims to do, which is to embarrass people, turning it into a political sideshow. It turns out that you won’t benefit from avoiding all these really terrible investigations.

Then, the other issue is the fact that it might be better to have a public investigation into some of these ridiculous claims so that people can see that there’s nothing there for them, and they can see how the government actually works, and realize that there’s nothing there. There are some benefits to conducting investigations when someone’s name is cleared, whereas if you offer a blanket, preemptive pardon, there’s always that question of why they need it. Was something really bad going to happen? If you keep things open and transparent, you avoid any kind of contamination or suspicion that someone was actually involved in something problematic.

True, but this seems almost quaint in the sense that if there was going to be a trial for Anthony Fauci on trumped-up charges, most people would have already made up their minds about that. I’m not sure how important it is to publish evidence.

I think everyone will weigh those pros and cons differently, but I think that’s still a potential downside to it. There are some people who would rather clear the air, would rather not have something like a shield for something when they feel like they haven’t done anything wrong. It will be up to any individual to decide whether they want to accept the pardon and use it to avoid investigation and prosecution.

But then there’s one supposed downside that I don’t agree with, but I know other people have brought up, which is that I don’t think what Biden decides to do will in any way affect what Trump decides to do when he becomes president. I don’t see that, if Biden does this, that somehow sets a precedent, so Trump would do it. I think Trump will do what Trump will do, regardless of what Biden does. To me, that’s a downside that doesn’t really exist, because I don’t think every side plays by the same rules anyway.

I’m glad to hear you say that, because I feel like one of the arguments against impeaching Trump in the first place was, it would set a precedent that presidents could be impeached, and then Trump might impeach Biden or Hillary. Clinton or Barack Obama. Looks like he would if he wanted to do it.

I totally agree. I think it should just be a question for Biden, do I think this is the right thing to do? Is this the right thing to do for these people now? I’m really concerned about the list not being comprehensive enough, and I think it creates this appearance of something hidden, which for people who have already made up their minds, who are already on one tribal side or the other, it won’t matter, but I think there are a lot of people in Countries who do not pay much attention to this type of issue. It is not set all the time. You also have to really focus on the overall messages you’re sending to people like that.

I want to ask about the other potential downside of pardoning these people, which is whether it expresses a lack of confidence in the system outside of Trump appointees if you do that. Maybe Trump can convince Cash Patel, or whoever runs the FBI, to go after someone, but you still need a grand jury indictment, which I know is very easy to get, and you still need a judge to prosecute. And you still need a jury to convict.

I would say, to some extent, this process is punishment, and if you’re facing a federal investigation, it’s a scary process. Even if everything goes well, and in the end, you are acquitted and not charged and everything is fine, you will spend an enormous amount of time, money, and worry before that outcome occurs. There’s no shame in finding yourself the target of a federal investigation. Even if you have faith in the process, I think it’s a big problem.

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