Begging one's pardon

The issue that will split the presidential candidate field, but could maybe get Trump to bow out

Let me just put it out there that I do not have a law degree and do not consider myself a legal expert. But Jack Smith’s 37-count indictment of Donald Trump reads quite plainly and sounds really bad for Trump. More importantly, people who are legal experts seem to feel this way, too. A good tell is the fact that almost none of Donald Trump’s ardent defenders are saying he’s innocent; they’re saying that he shouldn’t be prosecuted unless Hillary Clinton and Joe Biden are, too. I guess that’s fine as a talking point, but it doesn’t strike me as a persuasive legal argument.

All of which means, there’s a decent chance Trump is convicted on at least some these rather serious felony charges, which carry prospects for significant prison time. Would this happen soon? Would this happen once he’s the Republican presidential nominee? Could he plea to a lesser offense and avoid imprisonment? Could he flee the country? Look, I just don’t know.

But it seems clear that the next big issue for the presidential candidates not named Donald Trump is whether they would issue a general pardon for him upon taking office.

Despite what can seem at times like a pretty ideologically uniform field of candidates, there are some significant policy differences among them. There’s Ukraine, for example. Some, like Mike Pence and Nikki Haley, have talked about the need to defend Ukraine from Russian aggression, while others, including Trump, seem more inclined to take Russia’s side. There’s also the question of abortion — is it enough that Roe v. Wade was overturned and now the states get to figure out what reproductive services are allowed, or should there be a nationwide ban? These issues are important and don’t always break down easily or obviously along moderate/conservative lines.

But those issues do not have the immediacy of the central question for the candidate field: How supportive are you of Donald Trump as your party’s leader?

Vivek Ramaswamy jumped into this fray recently, vowing to pardon Trump and challenging his fellow candidates to make the same pledge. Asa Hutchinson took the opposite side, saying, “It is simply wrong for a candidate to use the pardon power of the United States of the president in order to curry votes and in order to get an applause line.”

Nikki Haley, for her part, has tried to find a middle position in all this, saying that Trump was “incredibly reckless with our national security” and may have put “all of our military men and women in danger.” However, she added, a pardon “is less about guilt and more about what’s good for the country. And I think it would be terrible for the country to have a former president in prison for years because of a documents case. So I would be inclined in favor of a pardon.” So, maybe a pardon but with a signing statement?

To my knowledge, other candidates haven’t weighed in on a pardon yet, but it wouldn’t surprise me if they’re getting a lot of questions from reporters about it. And I can only assume it will be a prominent question at the first presidential candidate debate in August.

But a few points on pardon politics:

1. We have one really important precedent where a president pardoned his predecessor. Gerald Ford did it just a month into his presidency to avoid what he saw as a likely very divisive trial of Richard Nixon, and it was dearly costly to Ford. His approval rating quickly plummeted by roughly 20 points and never recovered; his party got wiped out in the midterms that fall, and Democrats took the presidency two years later.

   

   A pardon in today’s far more polarized environment would probably not be quite so costly, but it would still hurt. Trump is not particularly popular with the country at large, and the idea of keeping him out of prison “for the good of the country” would not have a great deal of traction outside the Republican Party.

2. Promising to pardon Trump is a relatively cheap and easy signal for a candidate to broadcast that will at least keep them in somewhat good standing for a very active and vocal portion of the party’s voters. That is, the chance for any given candidate to actually become the nominee and become president is fairly low, so they probably won’t have to follow through with the pledge, while it gives them a chance to reach out to Trump’s supporters now pretty effectively. One can even be free to say other things critical of Trump as long as that person has vowed to pardon him.

3. Most of the Republicans running for president right now have no chance of becoming the nominee in this environment and they know it. Trump is far ahead in endorsements, in polling, in fame, etc. And they’re not going to change that by coming up with just the right set of words to criticize him in a debate, ad, or speech. Rather, they’re running to win in a different environment — one in which Trump has been forced out of the contest by a conviction, by a need to focus on his trial, etc. This is why most of the candidates have been running the way they’ve been running — challenging Trump without saying anything negative about him. They know they can’t pull him down, but they could inherit some of his supporters if he drops out.

4. I don’t know if Trump is receptive to this argument or if there’s anyone in the Republican Party who could credibly make it to him, but it strikes me as the right argument to make: A Republican nominee who has promised to pardon Trump has a better chance of becoming president than Trump does. That is, if Trump really does not want to spend the rest of his days in a penitentiary, stepping aside to let another Republican challenge Biden might be his smartest long term move. Of course, then he needs to decide whether it’s more important to him to be a free man or a martyr, and I honestly don’t know which he’d choose.

One final issue to consider is whether Biden, who was in the US Senate when Ford issued his pardon of Nixon, would consider doing the same for Trump. I rather seriously doubt Biden would do this; he’s good at reading his party and there’s very little support for such an idea there, and he knows he’d get hammered for it. But he’s also one of the few remaining people in office for whom the concept of “the good of the country” still has some truck. Again, I think the odds of this are very low, but I wouldn’t put them at zero.