President Joe Biden said that, in order to preserve respect for the law, he had granted pardons to innocent persons candidate Donald Trump said should be prosecuted. Biden rightly reasoned that Congressman Bennie Thompson and former Congresswoman Liz Cheney had performed a laudable public service when they led the January 6 committee. Biden said they should not have to defend that service in court even though they would surely prevail if a prosecution were attempted.
But the Biden pardons establish a disastrous precedent. They greatly weaken any ability a future prosecutor might have to challenge criminal actions by a sitting president. In effect, they give a “get out of jail free” card to those who might help him. In fact, it is now very difficult to see any legal restraints on the actions of a president who chooses to ignore the law.
In theory, our constitutional system should give a president multiple reasons not to commit crimes. Congress can impeach him and remove him from office. The courts can enjoin actions that violate the law. If he is voted out of office, future administrations can prosecute him and those who help him and put them in jail.
But there is every reason to believe that none of those restraints will be sufficient to deter President Donald Trump.
To begin with, not just his political party but also his political MAGA faction controls Congress, or has sufficient control to prevent an impeachment, which requires a two-thirds Senate vote. They are cowed by the threat presidential ally and multi-billionaire Elon Musk has made to contribute $1 million to the opponent of anyone who votes against legislation Trump supports. That is in effect a form of reverse bribery, but there is nothing illegal about it. And the current silence in the face of Trump’s pardons of the January 6 rioters confirms the Congress’ lack of interest in impeachment. Those pardons confirm his approval of a conspiracy to overthrow the government by use of violence, an approval he avoided in the past. If ever there was an impeachable “high crime,” that is it.
Nor are the courts likely to be much help. A majority of the Supreme Court sided with Trump in their ruling that the Trump’s participation in the 2021 insurrection was not enough to keep him out of office, even though the 14th Amendment expressly bars insurrectionists from office. And some influential lower court judges may be willing to twist their decisions in Trump’s favor in the hope that signaling their loyalty will earn them appointment to that court should there be a vacancy.
And even if a Supreme Court majority should want to enjoin Trump misconduct, there is every reason to believe he would ignore the ruling. After all, for more than four years he has openly expressed his contempt for the rulings of the more than 60 federal and state courts that found that he lost the 2020 election, fair and square. The Supreme Court has no way to enforce its rulings if the President chooses to ignore them, something President Andrew Jackson is said to have done when he forced eastern Indian tribes to march to reservations in Oklahoma.
Now that same court has said that Trump, contrary to all presidents before him, runs no risk of future criminal prosecution for his “official” acts. That radical and unprecedented decision has no support in the text of the constitution and is not supported by any established legal precedent. Those who run the other branches of government, the Congress and the judiciary, can be prosecuted if they commit a crime in office. It is not at all clear why the president should be treated differently. The Supreme Court dissenters said the ruling now means the president cannot be prosecuted even for taking a bribe, if the bribe is for the performance of an official act. The majority opinion does not dispute that statement.
That leaves one remaining hope for those who would hope for a presidential administration that follows the law: The risk that those who help the president commit a crime could be prosecuted by a subsequent administration for their illegal conduct. Admittedly the pardons of the January 6 rioters signal that the risk may be small. Those pardons are in tune with Trump’s 2020 pardon of his ally Roger Stone who had been sent to jail for lying to Congress.
But the Biden pardons make the risk even smaller. There has been a belief that a pardon could only be granted after a conviction, or that at the least, the person pardoned would have to admit the commission of a crime. But there are no such restrictions on the Biden pardons. He has pardoned those he fully believes to be innocent. That will make it harder to place any limits on future Trump pardons. It is a terrible precedent.
The Biden pardons also eliminate a chance for the Trump administration to display a partisan cruelty that might, perhaps, hurt it politically. On the other hand, cruelty is a popular feature of the World Wrestling Entertainment broadcasts President Trump admires, so maybe there will be some benefit in eliminating one opportunity for him to display it.
Luther Munford is a Northsider.
