Column: Why does Biden have to hope that Trump will pardon himself

As the days run through Jan. 20, President Trump, who has rarely seen a norm he couldn’t break, can try to break one more – and forgive himself before leaving office if he is later prosecuted for federal crimes. .

If he does, he will react with much American outrage.

But Trump’s self-pardon, strange as it may seem, could also be an obvious gift to elected president Joe Biden by immediately relieving pressure from the new administration to evaporate in the former president’s divisive legal persecution.

Biden faces a real dilemma. The cornerstone of American democracy is that no one is above the law, not even the president. But if Biden were to go to court quickly against the one he had just beaten in an election – a man who shows all the signs of a rescheduling plan – it would be the result of a guerrilla battle that would end Biden’s hope of restoring a kind of bipartisan involvement in Washington. .

But federal prosecutors in New York and other countries have long been investigating illegal contributions to Trump’s 2017 inauguration and other financial irregularities. Robert S. Mueller III. His former assistant prosecutor said the president was guilty of obstructing justice by interfering in their investigation.

“I think that [federal prosecutors] he has no choice, ”said Kamala Harris, the elected vice president in 2019.“ The president is not above the law. “

Still, for the Biden Department of Justice, Trump’s report would pose a lot of problems.

Quite or not, it seems to be the “justice of the winner”. Democrats condemned Trump, who urged followers to “lock up” Hillary Clinton; It would be hard to justify his “closure” as a substitute, no matter how much Trump deserves it.

Trump’s investigation would continue the vicious circle during which the Trump administration continued to investigate former President Obama and his helpers for alleged espionage of Trump’s 2016 campaign (never substantiated allegations).

If the Biden administration prosecutes Trump, Congressional Republicans will compete in its defense, if only to maintain the support of loyal Trump voters.

And it would be a divisive, all-encompassing spectacle that would get in Biden’s way as he seeks to legislate and implement his agenda.

“The arguments of both parties are extremely powerful – and inconsistent,” Donald B. Ayer, former senior official in the Department of Justice, President George HW Bush, told me. “Can Biden move forward on his agenda if the whole country focuses on the persecution of Donald Trump?”

Biden carefully avoided the choice.

“I don’t think anyone is going beyond the law,” he told reporters in August.

On the other hand, he says “probably not very good … for democracy when it comes to prosecuting former presidents.”

So, he said, leaving the decision to the Department of Justice. “As for‘ I think the president broke the law … he’s going to court, ’I’m not going to do that,” he said. – This is for the Attorney General to decide if he wants to continue.

A pre-pardoned Trump can help Biden navigate the dilemma as it makes it harder for the prosecution to continue.

While it is not clear whether self-mercy would be valid – this has never happened before and runs counter to the cornerstone principle that no one can serve as a judge in their own case – the move would guarantee that things would be messy. For any prosecutor, the first step would be to defeat the former president’s claim that he is inviolable to the federal prosecutor’s office.

And that’s the question, ”says Norman Eisen, a former councilor for the House Democrats who pursued Trump’s Democratic Treaty, who is now a fellow at the Brookings Institute,“ would go to the Supreme Court pretty quickly ”.

That would be the Supreme Court, in which Trump had just deployed a 6-3 conservative majority.

Eisen’s advice: “Let the states go first. Their investigations are already underway. And federal pardon does not cover prosecutions by state or local prosecutors.

Biden may be able to completely avoid the divisive decision on criminal prosecution by letting New York go ahead, say. In any case, Trump seems to be in greater danger there than federal prosecutors.

The Manhattan district attorney is investigating the family and real estate services firm Trump Organization on charges of banking and insurance fraud. And the state’s attorney general is investigating whether he demanded irregularly inflated deductions from state tax returns.

Trump also faces potential civil rights issues. He owes millions of dollars to the banks that held him back to sue him while he was in the White House.

The cost of an unresolved federal tax audit could exceed $ 100 million. Tax cases are, at least initially, conducted in civil courts and not in criminal cases; grace does not relieve you of your obligations to the Revenue Service.

Congressional committees remain free to examine him.

In short, Trump’s retirement is unlikely to be very comfortable, even if he faces a federal charge.

So go ahead, Mr. President, and have mercy on yourself. Secure your place in history as one of two presidents who felt they needed pardon because of potential criminal proceedings. Sooner or later, we will probably meet the same way in court.