Dem counsel: Biden should pardon Trump as soon as possible

Pardon Donald Trump … for what? Former House Judiciary counsel Michael Conway argues that Joe Biden should follow the example of Gerald Ford in issuing a broad pardon to his predecessor “to heal the nation and foreclose the possibility of an ongoing cycle of retribution[.]” What Conway actually wants, however, is a Donald Trump confession:

First and foremost, Trump’s acceptance of a pardon — under the 1915 Supreme Court opinion in Burdick v United States — is an admission that he was guilty of the crimes for which he has been pardoned. Pardoning him may be the only way that Trump even implicitly concedes he did anything wrong.

Shouldn’t there be an actual crime alleged first? That’s the difference between 1974 and 2020; Richard Nixon stood accused of actual crimes, for which substantial evidence had emerged, primarily the White House tapes. Even the House couldn’t establish an actual federal crime in its impeachment of Trump, only abuse of power and obstruction of Congress, both “crimes” whose adjudication lies solely with Congress. A two-year independent counsel probe resulted in no charges at all against Trump, and only process crimes against a couple of others. Paul Manafort and Rick Gates got prosecuted mainly on a case the Department of Justice built in 2014 and which Robert Mueller picked up as leverage.

Conway’s argument suffers from Orange Man Bad Syndrome, where just the invocation of the name “Trump” is enough to infer criminality. Unfortunately for Conway, he notably doesn’t list a single crime in his argument, let alone offer any evidence of guilt. Why would Trump accept a pardon without any credible evidence that a crime has been committed, let alone evidence of his guilt in it?

Furthermore, the only current legal risks Trump faces are in New York state court, where a federal pardon won’t matter, as Conway admits:

So, a presidential pardon would not bar Manhattan District Attorney Cyrus Vance from investigating and potentially prosecuting Trump and his company for crimes under state law. And his investigation already led to a Supreme Court ruling this summer rejecting Trump’s claim of immunity from criminal investigation while president.

About the best that it might do is get Trump off the hook in his perpetual IRS audits. Even that, though, is much more likely to result in civil action rather than criminal charges, even assuming the audits establish any failure to pay legitimate taxes.

Conway may have inadvertently made a good argument for presidential immunity, but that’s for Congress to take up, not Joe Biden:

But the justification for a pardon can also be grounded in a higher purpose. The 73 million Americans who voted to re-elect Trump two weeks ago will be just as angry about a good faith federal investigation of Trump after he has left office as Democrats were angry about Trump’s baseless chant to lock up his former political opponents.

Right now, even after the Trump presidency that Americans believe was divisive, polls suggest that enormous numbers of Americans still believe that we have more in common with one another than what separates us. There is an opportunity to rediscover our common ground with one another — and the way forward does not involve relitigating the last four years in federal criminal court.

That argument can be made in any contentious transition of administrations. It could certainly be made on behalf of the Obama-era officials which cooked up the Russiagate nonsense that tied up this country for almost three years. It might make some sense, too, if partisan politics continue to seep into law enforcement and politicizes it as it has done over the last several years. That, however, shouldn’t be an arbitrary application of clemency authority but a deliberate choice by Congress to apply qualified immunity to the presidency. And it’s arguably supportable too by establishing Congress’ primacy in keeping presidents in check rather than executive-branch agencies or — God help us — roving prosecutors with perjury-trap strategies.

If that’s what Conway wants, let him argue for that. But arguing for a pardon without a crime is essentially a plea for a way for new presidents to smear their predecessors.

Besides, that’s not the biggest question about pardons in the post-Trump world. This is:

Don’t tell me that there’s no one at the Daily Mail who blamed a fart on classmates in adolescence? Or the dog? Let those who have never played “tree frog” cast the first cheese, or something. Full pardon warranted, Mr. Biden.

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