The FBI and DOJ were right to take action if the nation’s secrets were at risk. But there’s also good reason to think that seeking to punish Trump to the fullest extent of the law would perversely corrode both the rule of law and democratic standards — while bolstering Trump’s political standing.
To see why, note that Trump has so far used Mar-a-Lago research to shore up his waning GOP support and try to further delegitimize the Justice Department. The episode sucked the oxygen out of those hoping to push Trump’s party and led Republicans to rally around him again. For Republicans who aren’t diehard Trumpists but have also supported him in the past, the criminal charges here are likely to confirm Trump’s lurid claims about the ‘deep state’ and a ‘witch hunt’. . Even though most Trump loyalists are likely to stick with him no matter what, those interested in the trajectory of American democracy should surely pay close attention to Trump’s standing among Republicans and independents in general – something that changes and will change.
It’s also unlikely that a mishandling of documents lawsuit will be enough to restore broad faith in the rule of law, or somehow prevent Trump from running and potentially winning in 2024. A trial and several appeals would likely be a long and circus-like process. This would likely increase, not exhaust, broader support for Trump’s attacks on the rule of law and democracy – thus helping Trump, or a surrogate who could easily run in his place.
Nor is there good reason to be fussy about punishing all federal crimes. Nine out of ten federal criminal cases are resolved by negotiation between the prosecutor and the defendant over the charges. By its nature, plea bargaining leaves uncharged offenses on the table. And given the massive overclassification of federal documents, insisting on accusations of mishandling classified documents — without more — is hardly a sine qua non of the rule of law.
Worse, pursuing the criminal case here would give ammunition to those on the right who have argued that a Republican president should turn the FBI against its political enemies. While this did not happen between 2016 and 2020, we have good reason to fear the downstream harms of renewed pressure on the norm against partisan law enforcement tools. It would be dangerous to the health of any democracy if the loyal opposition were regularly criminally investigated for their political activities in the absence of extraordinary facts.
But, given these risks, what can now minimize the damage to the rule of law and American democracy? Even if the Justice Department concludes that a prosecution is not warranted, Attorney General Merrick Garland has no credible way to commit not to prosecute. But Biden does it: the power of grace. Its judicious use could minimize attacks on the rule of law, while strengthening our democratic standards. While not perfect, it may well be the least bad option for protecting our constitutional democracy.
Biden, to be clear, has absolutely no reason to grant Trump a blanket pardon. Nothing shall be used to excuse treason, or corruption of rank, or actions against the Constitution. But if the facts prove to justify it, he could grant a narrow pardon covering only offenses related to the simple mishandling of classified material, not reaching any other potential crime. Critically, Trump could still be held accountable for his efforts to nullify the 2020 election.
In doing so, Biden could underscore the importance of abstention when it comes to using the criminal law against opposition politicians: he could even cite the GOP’s ‘lock her up’ chants in 2016 to illustrate the type of behavior that is squarely at odds with democratic norms. And he could remind Americans that a pardon doesn’t mean nothing criminal happened. Quite the contrary. It may reflect someone breaking the law while approving of powerful reasons not to punish them.
The President’s power of pardon is clearly broad enough to encompass this decision. It covers all federal offenses, including those at issue in the Mar-a-Lago search, and can be exercised prior to an indictment, trial or criminal conviction. The pardon granted by President Gerald Ford to Richard Nixon and that granted by President George HW Bush to Caspar Weinberger are famous examples of such preventive pardons. Trump himself pardoned Lewis “Scooter” Libby in connection with the leaking of the identity of a CIA agent.
Crucially here, a pardon does not require the consent of the suspect. Nor is Trump one to welcome one. It makes him look helpless and dependent on Biden’s magnanimity.
A laser-targeted pardon also has appealing political logic: a pardon blows away Trump’s claim to martyr status, which has helped him rally the GOP to his side. It also has the benefit of bringing attention back to the grave threat Trump posed to the Democratic transition of power after the 2020 election. President. But Republicans and more traditional independents would likely be more open to accountability, particularly if it came after clemency for a lesser offense. From a purely partisan perspective, removing Mar-a-Lago’s research from the spotlight may also appeal to a White House keen to bring public attention back to abortion rights and its string of legislative successes in the US. approaching the half-terms.
None of this is to say that there would be no costs associated with exercising a pardon for Mar-a-Lago infractions. Last but not least, the White House could be seen as capitulating to the threat of violence from Trump supporters. And sadly, this may well encourage further threats of violence. But there are no options on the table that don’t incur significant costs: the question is which one is less bad. And, to tell the truth, those on the far right who are declaiming the beginning of the new American Civil War need little encouragement to once again cross the line.
Make no mistake: the mishandling of classified documents, especially those containing supposedly sensitive details, should not be acceptable at all. No president can be content to steal confidential national security files after losing. But these are not ordinary times. It is not just the Justice Department but also the President who must act with extraordinary care and keen judgment if American democracy is to thrive again.