Biden’s dilemma: prosecute Trump... or pardon him?

Biden’s dilemma: prosecute Trump... or pardon him?

 When he takes office in January, Joe Biden will face a difficult dilemma, said Jonathan Mahler in The New York Times Magazine: how to deal with Donald Trump’s “flagrant and relentless subversion of the rule of law”. Presidents have traditionally resisted taking legal action against previous administrations – witness George H.W. Bush pardoning Reagan officials involved in the Iran-Contra scandal, or Barack Obama opting not to prosecute members of George W. Bush’s administration who authorised torture. 

The stakes of an indictment of Trump would be high and, because a president’s authority under the constitution is so broad, the odds of a conviction low. But from campaign finance violations to blatant self-enrichment to the obstruction of justice, “no president has ever left office with so much potential criminal liability”. Without a legal reckoning for this unprecedented defiance, how does the US maintain the rule of law? Biden reportedly fears that investigating Trump would further divide the nation, said Renée Graham in The Boston Globe. But to ignore four years of “scandals and corruption” on this scale would set a “dangerous precedent”. It would only invite fur venality, agreed Jeet Heer in The Nation. It’s time to end the culture of “elite impunity” which has long held sway, from Gerald Ford pardoning Richard Nixon after Watergate, to Trump’s recent pardon of his former national security adviser Michael Flynn. Biden must break with history and hold Trump accountable. Biden has “higher priorities”, said Jim Geraghty in National Review. His administration can drag Trump into court for a spectacle that would make O.J. Simpson’s trial look “quiet, obscure and dignified”, or he can focus on getting his agenda through Congress. 

He can’t do both. Prosecution would make Trump a martyr, inflame the partisan divide and “lead to civil unrest”, said Michael Conway on NBCNews.com. Instead, Biden should do the unthinkable and grant Trump a pardon. Because it would only apply to federal crimes, Trump would still have to answer for possible tax and financial crimes now under investigation in New York (as he would if, as he has suggested, he were to pardon himself). Besides, don’t forget that accepting a pardon does amount to an admission of guilt. “Pardoning him may be the only way that Trump even implicitly concedes he did anything wrong.”

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