Why Biden should pardon everyone on Trump’s enemies list

When President Joe Biden pardoned his son Hunter, most of the pundits were outraged. Conservative commentators, of course, accused Biden of hypocrisy and took the pardon as proof that the “Biden crime family” had been real all along. But moderates and liberals also had complaints: Pardoning a family member undermines the rule of law, they said, and sets a bad precedent for Donald Trump to do the same, and so on.

These experts were wrong – and now the stakes are much higher.

Seam Political and New York Times has reported, the Biden White House is considering preemptive pardons for several individuals on Donald Trump’s (and FBI-designate Kash Patel’s) “enemies list” to spare them the ordeal of baseless harassment and prosecution.

This is exactly what Biden should do. Let’s first look at the positive case for pardons and then respond to the objections some have raised in the press.

First, Trump, Patel and others have made it clear that they intend to use the Justice Department, and the FBI more specifically, to go after their political enemies, although they have not pointed to any specific laws that their opponents have broken . That’s because there are no laws have been in pieces. Yes, various public officials and journalists have defied, prosecuted or insulted Trump — an offense he will soon have the power to punish.

This is obviously new territory for the United States. No president in American history has ever promised to do this. That’s because it goes against everything American democracy stands for. This is what so-called banana republics and authoritarian regimes do. But that’s what the president-elect has promised to do, time and time again.

Now, if Trump’s enemies are innocent, what do they have to fear? Plenty.

They will be arrested. Your home will be searched. Your privacy will be violated. They will face legal bills that can easily run into the hundreds of thousands of dollars and will have to spend months defending themselves in court instead of living their lives freely. And they will be harassed, threatened and trolled by the swarms of zealous partisans on Elon Musk’s propaganda platform. (This happened to me recently. You probably have no idea how disgusting and disturbing it can be – especially if you’re a parent like me.)

Consider the story of Dr. Steven Hatfillwho was falsely accused of sending envelopes containing anthrax to prominent people in 2001. We now know he didn’t. But the FBI ruined his life, raided his home and office and leaked information to the press. Helicopters hovered overhead and agents followed him everywhere. Eventually he lost his job and had to go into hiding. And he was never even charged.

Will any of this happen to the people on Trump’s “enemies list”? Given how often Trump himself made the threats on the campaign trail, why would we assume it wouldn’t? As a private citizen, Trump filed legal proceedings all the time for scare anyone who crossed him, and as president-elect, he has appointed loyalists whose only qualification seems to be their willingness to do as they are told. I can’t think of a single reason why Trump would not live up to this promise.

And who is on the list? At the very least, Trump has mentioned or threatened former Rep. Liz Cheney, Dr. Anthony Fauci, Special Counsel Jack Smith, Senator-elect Adam Schiff, New York Attorney General Letitia James, Fulton County District Attorney Fani Willis and U.S. Attorney General. Merrick Garland; and New York Judge Arthur Engoron. Patel’s list also includes former US Attorney General Bill Barr, Trump’s former UN ambassador John Bolton, FBI Director Christopher Wray and 50 other members of the alleged “deep state”. Not to mention that Trump has called reporters “enemies of the people” and Patel has said he will “come after” them.

One person on the list is former Justice Department official Sarah Isgur, who wrote this week in The New York Times that she does not want a pardon because she believes she will be acquitted in a court of law and vindicated in the court of public opinion. “Once the Americans begin to see his lack of evidence, Mr. Patel will look ridiculous,” Isgur wrote. But is it true? Didn’t Donald Trump just get elected despite being a convicted felon (and under indictment for many more crimes)? Innocence and guilt clearly do not generate as much outrage as one might hope.

We may be facing the largest mass disruption in American history. Preemptive pardoning of those Trump has threatened is a necessary countermeasure to unprecedented threats, both for the targets of Trump’s revenge and for the integrity of the justice system as a whole.

Now let’s look at the negative case, specifically the objections of experts and legal experts.

The most compelling objection I’ve seen is that broad, preemptive pardons may be unconstitutional. In the Constitution, the pardon power is absolute: It cannot be revised, and pardons can be issued for any reason, or none at all. However, some have argued that pardons should be for specific past convictions, not potential future ones, and should be issued in good faith. But that will be a question for the Supreme Court to decide on. Biden should do his part to protect the innocent and hope that Supreme Court justices do theirs responsibly. Pardons are not like the Court’s recent invention of presidential immunity, as Isgur suggested. They are an existing part of the constitutional system.

Others have rightly noted that a wave of preemptive pardons would be unprecedented. President George W. Bush pardoned a number of Iran-Contra figures, and Trump himself pardoned several of his former aides. But it is also true that the scope and preventive nature of these proposed pardons are new. However, they are only unprecedented because the nature of the threat is equally unprecedented. As Professor Frank Bowman told the Times“if we had anybody but Trump coming in, I’d think it’s unforgivable. But I don’t know, man. We’re kind of playing by different rules here.”

A third claim warns of, essentially, moral hazard, reasoning that if Biden plays fast and loose with the pardon power, Trump will too — or that pardons can validate “deep state” conspiracy theories. However, such claims assume that Trump worries about any of this, which he does not. He will spread the conspiracy theories he wants to spread regardless of what Biden does. And he has already promised sweeping pardons 547 people convicted or charged with crimes related to the uprising on January 6, 2021. Those who still rely on norms and precedent as guardrails ignore the overwhelming evidence that Trump simply does not care about them. What Biden does is irrelevant.

Fourth, in the wake of the Hunter Biden pardon, several columnists believed that Biden tarnished his legacy. Poppy. First, Biden leaves a legacy of (temporary) normalization of the US government, passing on the most comprehensive efforts to address global climate disruptions, restoring respect for America abroad, and a host of other achievements. Of course, he also had plenty of failures, but the pardon hardly undermines his successes. And as for accusations of nepotism, as White House press secretary Karine Jean-Pierre saidthe only reason his son was investigated in the first place (indicted for tax offenses, no less) was because his last name was Biden.

A pardon for public servants and journalists is even less ethically problematic. No one can accuse Biden of favoritism or insulting the rule of law. On the contrary, pardons will protect the rule of law from abuse by a vengeful demagogue. The real danger to our judicial institutions is to allow Trump’s campaign of revenge to continue without using the levers of power that the Bidens currently wield.

In any case, people can refuse to be pardoned. Besides Isgur, Schiff has also said he doesn’t want one. It’s a brave choice – and who knows, potentially a politically wise one – but the choice should be theirs to make.

Finally, some have expressed concern that such pardons could be interpreted as admissions of guilt. I’m sure Republican politicians and the right-wing media will howl that it is, but Democrats cannot let fear of bad faith Republican spin dictate their actions; that’s not how politics works. Rather, it will be up to Democrats and responsible voices in the press to argue that protecting people from baseless harassment is not the same as admitting guilt.

In sum, these well-intentioned objections to Biden’s use of the pardon power have the situation completely backwards. Knocking down Trump’s vindictive plans will protect the rule of law, not undermine it, and of course it will also protect dozens of innocent people. The time to act is now – before it’s too late.