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OPINION | PHILIP MARTIN: Biden should pardon Trump

by Philip Martin | January 17, 2021 at 8:11 a.m.

If I'm Joe Biden, the first thing I do after I'm inaugurated is offer to pardon Donald Trump.

There are good reasons for doing this, the first being that any federal investigation, indictment and/or trial of Donald Trump is going to be a time- and attention-sucking circus that will divert energy and resources from more profitable and grown-up endeavors.

It will be, as all things Trump turn out to be, a tawdry and unworthy spectacle that will make everyone exposed to it feel dirty and dumb. We have better things to do than spend more time with Le Grande Orange.

Another reason for offering the pardon is that if Trump accepts it, he essentially admits, for the first time as far as I can tell, that his actions have been less than perfect and appropriate. To accept a pardon is to admit legal guilt, though it's not hard to understand why a person who believes himself innocent might accept anyway, pragmatically agreeing to plead guilty to a lesser offense to avoid the risk of being tried for a more serious one.

Trump could accept the pardon and still whine about how unfair the world has been to him. Some might still pay attention to him. He might always command the fealty of a disenchanted few. No decree or statute can strip him of this birthright; some are still expecting the Trump Restoration any minute now. He cannot be dishonored enough for them to lose their faith.

And consider that Trump would not have to accept Biden's pardon. Precedent was set in the 19th century when a highwayman named George Wilson was sentenced to death for the robbery of a postal carrier in Pennsylvania. Wilson apparently had friends in high places, for they prevailed upon President Andrew Jackson to pardon him.

But Jackson didn't pardon Wilson for all his crimes, just for the component that made the robbery a capital offense: threatening the life of the postal worker. Wilson was spared the noose, but still was looking at a 20-year sentence.

Then Wilson refused the pardon. This was unheard of and angered Jackson, who insisted that he accept it. Nope, Wilson said. So Jackson--actually the U.S. government--sued to try to make him accept the pardon. The case made its way to the Supreme Court, where the justices decided that a pardon was like any other gift. It could be refused.

"A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws ...," Chief Justice John Marshall wrote, "[but] delivery is not completed without acceptance. It may then be rejected by the person to whom it is tendered ... we have no power in a court to force it on him."

Wilson won. They hanged him.

So if Trump refuses the pardon, Biden can shrug, say he gave it a shot, and let the wheels of the Department of Justice grind away. After all, the Trump administration is going to be investigated whether Trump is pardoned or not; his pardon would not cover those who abetted, enabled and co-conspired. But it would be better for all of us if he'd just accept it.

Biden said he wasn't going to offer Trump a pardon, but that was way back in May when it seemed Trump might have a viable path forward as a figure of influence, before he lost an election, inspired a riot in the Capitol and got impeached for a second time. Trump still has his hard-core cult, but he's done as a significant political figure. His influence will evaporate when he's out of office.

As has often been noted, 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. (Vance's investigation has already led to a Supreme Court ruling striking down Trump's theory that he is immune to prosecution for anything he did while he was president.)

Once Trump is out of office, he'll be too occupied with trying to cobble together a subsistence grift to do more than scream his noxious opinions at the clouds. He'll be bankrupt and in legal jeopardy for years. I doubt he'll be able to keep all his golf courses. His lifestyle brand was all but dead when he became president anyway.

He probably won't recede entirely from the spotlight, but he'll be marginalized. We'll see the Alex Jones-ization of Donald Trump. In five years, he'll be a Nixonian figure. It will be hard to find anyone who ever supported him.

Five years isn't such a long time. These days most car loans last longer.

In the long run, the entire history of the constitutional federal republic will be just a blip. We might find solace in the idea that in the history books of the future--if there are history books of the future--the Trump era will be boiled down to a few paragraphs. Something along the lines of how a failed businessman and reality TV star rode a wave of nativist anxiety to a fluky electoral win, resulting in a chaotic administration that ended in an inglorious failed putsch, the fallout from which resulted in the splintering of the Republican Party.

Maybe there's no need to make a federal case out of it. Donald Trump will be punished sufficiently by the rush of post-presidential life, by lawsuits great and petty, by banks that will call in his paper, by local and state authorities whose criminal statutes he has violated.

Worst of all, he must endure being Trump, a sad and unfocused avatar of white male rage who lies most thoroughly and often to himself. Trump sometimes presents as giddy but never fulfilled or genuinely happy; his laugh is hollow and cruel. He lives without joy, without music or poetry, untouchable by art or generosity. He reads kindness and thoughtfulness as weakness and most admires the savage certainty of brute force.

Trump lives beyond our society, an outlier immune to grace, alienated from even his own loneliness. He is the king of a dwindling and unhappy tribe he relies upon for tribute, and he hates them for their low-class ways.

Although he will never be held completely accountable for his transgressions, I believe he suffers. He probably won't do it, but Joe Biden should pardon Donald Trump.

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