Excuse me, Mr. President. As the country awaits a decision on the imprisonment of a former president, would you consider using the presidential power to pardon?
Leaders seldom show magnanimity toward political rivals. Romulus killed Remus, Brutus stabbed Casear, Henry the VIII murdered Thomas More, Stalin poisoned Trotsky. In recent years, Argentina, Brazil, Egypt, Israel, South Korea and 10 other countries have jailed a former leader for reasons good, bad or some combination thereof.
Yet in modern times no western European democracy has put a former leader in prison (though the French put one under house arrest and Italians sentenced Silvio Berlusconi to three years of public service). The United States has never convicted a former president, much less issued a jail sentence.
Donald Trump may well deserve a jail term. Some of my closest friends hold that heart-felt belief. I do not seek to dissuade them. But a pardon is neither an exoneration nor a finding of innocence. It is an act of mercy. In Portia’s words, “it falleth like the gentle rain from heaven on the place beneath.”
The place beneath is not Mar-a-Lago, but the breadth and width of the United States of America. This nation, for its own political health, must lean over backwards before adding jail sentences to its political repertoire. President Gerald Ford, pardoned Richard Nixon not because the former president was innocent but because he believed it was in the best interests of the country and concluded that the matter “could go on and on and on, or someone must write the end to it. …Only I can do that.”
Mr. President, you, of course, can only pardon crimes committed against the federal government. But as you pardon Trump for offenses being tried in federal courts, you could simultaneously ask Gov. Kathy Hochul (D) to do the same for his conviction in New York.
The constitutional punishment for “high crimes and misdemeanors” is presidential impeachment. The House of Representatives impeached President Clinton, but the Senate refused to convict, rightfully deciding that his affair, however sordid, was of minor public significance.
Trump, too, was impeached but not convicted, once again a sign the alleged crime was not perceived a grave public matter. Nixon’s involvement in the cover up of the burglary of the Democratic National Committee headquarters was quite another matter. Had he not resigned, he would have been convicted by the Senate. Yet even Nixon was not placed in the dock, much to the relief of historians who take the long view.
Your pardon, Mr. President, would be historic. Your action would come close to matching President Lincoln’s use of the pardon to save 265 of the 304 members of the Sioux and Winnebago tribes from the hangman, or his and Union General Ulysses S. Grant’s decision to allow Confederate officers and men to return to their homes after General Robert E. Lee’s surrender at Appomattox.
You may win this election and see Trump off to jail. But what are the political consequences? The opposition party will seethe with a self-righteousness not seen since an allegedly “corrupt bargain” denied Andrew Jackson the presidency in 1824. Republicans could easily win in 2028, maybe overwhelmingly. It is hard to imagine the next government refraining from exacting revenge on those perceived to have stolen the election. A vicious cycle is put into play.
Even worse, you may lose this election, just as the gamblers are predicting. Trump says he does not know whether he will go after bad people or not. Those are not comforting words — either to your friends or to those who worry about a nation that Lincoln once called the “hope of the earth.”
Our country’s judicial institutions may be strong enough to withstand reckless partisanship either now or in the future, but an intensifying partisan divide is already visible within courtrooms on almost any given day. We cannot expect the courts to repeatedly restrain partisans with a thirst for revenge that goes beyond merely defeating their opponents. A constitutional democracy that has endured for two and one-half centuries seems suddenly at risk.
Some within your party will insist Trump must be punished for trying to destroy democracy. Yet polls show the wider American public remain unconvinced. Your own pro-democracy platform is being turned against you.
Trump will claim he needs no pardon, but you will utterly destroy his claim that he is being persecuted. Trumpsters will say the pardon proves you’re weak, but only a strong leader has the audacity to be generous. The Romney Republicans will cheer the decision; some will cross party lines.
In short, a pardon shakes the presidential race in ways no other last-minute event can. Abortion, inflation, the border, Gaza, as political issues, are all baked into the current political stalemate. An unexpected pardon will impress independents, double-haters, undecideds, the tuned out and the turned off. The public will be relieved to know they have a president who brings people together, puts country above party and lives up to the biblical injunction, “Love thy enemies.”
Mr. President, there is one final consideration. If you don’t take this step, your opponent could listen to Portia and capture the high ground. He could promise, if elected, to pardon Hunter Biden.
Paul E. Peterson is a senior fellow at the Hoover Institution and a professor of government at Harvard University.