Benjamin Kleinerman is the Editor of The Constitutionalist and Professor of Political Science at Baylor University. Read more about Kleinerman on the Masthead.
There will be lots of talk over the next several weeks over who Trump should pardon, who he will pardon, and, especially, whether he can pardon himself. Regardless of how those questions are answered, I want to suggest that Biden should pardon Donald Trump, as one of the very first things he does as President. In Federalist 74, Alexander Hamilton makes a political case for the necessity of the President’s pardon power:
“But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”Alexander Hamilton, Federalist 74
In other words, presidential pardons can serve important political purposes that follow from the president’s critical role in maintaining order and preserving stability. That is, independent of considerations of justice or mercy that Carrington wrote about in his recent article, the pardon power is the only clear “prerogative” power given to the President by the Constitution. It is a prerogative power because it exists outside the confines of the law as a way to achieve the common good. It is outside the law because, although the Constitution gives presidents the pardon power, there are no legal specifications about when and how they can use it. The very nature of the authority cannot be specified in advance. When the enforcement of the law by the prosecution of criminals gets in the way of the common good, the pardon power gives presidents a way of circumventing this prosecution. Although the law might demand prosecution, the Constitution allows presidents to decide that political prudence requires the law’s circumvention. The classic example of this is Washington’s decision to offer the rebels in the Whiskey rebellion a pardon. Whereas subduing the rebellion and then prosecuting them for having undertaken it would have continued the acrimony between the rebels and the federal government, Washington’s pardons sought to settle the issue and achieve peace—even if it was at the expense of some justice. The law demanded their prosecution; Washington circumvented the law for the sake of the common good. Washington’s pardon navigated the tension between justice and the common good. Moreover, precisely because the rebellion had already been subdued, the pardon looked like strength rather than weakness. The federal government was strong enough to let its enemies off the hook for their crimes.
This example of the Whiskey Rebellion isn’t meant to compare Donald Trump and his supporters to the rebels in Western Pennsylvania trying to destroy the federal government. Instead, it exemplifies the essential function the pardon plays in our constitutional regime. The founders would have been surprised by our relative lack of dangerous political exigencies that threaten the foundations of the regime itself. These Trump protestations and the accompanying vague threat of violence are the closest we have gotten in a long time to the kind of fomentation that threatens “the tranquility of the commonwealth.” When people start saying that elections were entirely stolen and thus that the sitting President has absolutely no legitimacy, it’s hard to see why they will respect the sovereignty of a regime presided over by a “false prince.” It’s one step (maybe not as big as we partisans of tranquility might wish) from that idea to the idea that you must kill the false prince and to destroy the regime that chose to accept him. An election compels both sides to admit and accept the legitimacy of the other. Though they might not be happy with the result, they agree to struggle to win the next one. The Democrats claimed in 2016 that Trump’s victory was illegitimate because it had been fueled by a foreign power. Trump and his Republican allies now claim that Joe Biden won the 2020 election through fraud, stuffing the ballot boxes with fake ballots. The losing party will accept the winner’s legitimacy only if they imagine that it was won fairly. As Hamilton emphasizes in Federalist 1, the Constitution aims to replace the “accident and force” of past republics with “reflection and choice.” Past republics were notorious for manufacturing election results. The Medicis always made sure their preferred candidates won the “republican” elections in Florence. As a result, no one accepted the legitimacy of the “winning” candidate. Violence became acceptable because manufacturing election results is the political equivalent of a violent coup. By establishing a regular process, the Constitution seeks to avoid the chaos of past republics in which elections were always contested, both before and after they occurred. To the extent that his supporters deny the regularity of the 2020 election’s processes, they will be tempted to resort to violence. This isn’t to say that they will resort to violence. I’m only suggesting that the perceptions of electoral irregularity and the illegitimacy implied by it invite the possibility of violent recourse. That possibility becomes even greater if we continue reminding everyone of those perceived irregularities by pardoning Trump.
Of course, at this point the skeptical reader might be saying: “His supporters are just wrong. There’s no evidence of fraud in this election. We should continue to proceed and insist upon the fact that these fraud claims are simply lies. We should investigate and prosecute Trump both because he has done truly illegal things and because he propagates lies like this. Justice demands that we follow the truth and put a stop to this madness.” Of course, this argument would make sense if perfect justice were always politically possible. Publius suggests, however, that complete justice and tranquility are sometimes at odds. We must sometimes sacrifice our hope for complete justice because it can roil a society too much. If we pursue justice by continuing the investigations and potential prosecutions of Donald Trump, we run the risk of tipping the balance from tranquility toward his aggrieved supporters becoming violent. It might seem just and perhaps even necessary to pursue justice by holding him accountable. Even this will be difficult, however, because he could only be prosecuted after it became clear that he did something wrong. And that could only happen after more investigations. But this kind of pursuit of justice might only be possible in a fully stable regime. The continued investigations of Trump assume the permanence of this stability. But, if the last year of the Trump presidency and then his contestation of the results after the election tell us anything, it is that stability can’t simply be assumed. American stability sits on the precipice of one Trump rally or one “woke” march spilling over into even more extensive violence. Or one angry Trump mob grabbing for guns to attack the “woke” mobs that are already upsetting our tranquility. After all, we have already seen continued, third-world-like/Weimar republic-ish, violence in the streets of Portland and elsewhere. That is, we saw how quickly order can descend into disorder in some places and how much the governmental response to that violence can depart from the rule of law. Authoritarianism is typically a reaction to, while also being a cause of, the street-level violence we have witnessed in the last several months. Instability begets the search for stability; the excesses of the search for stability beget newly aggrieved mobs that create even more instability.
Of course, the notion of roving mobs at war with one another and with an increasingly authoritarian state sounds more like the stuff of novels or science-fiction movies than it does like something that could happen in our democracy. But the founders were much less sanguine than we are about the fate of democracies. Hamilton writes in Federalist 9: “It is impossible to read the history of the petty republics of Greece and Italy, without feeling sensations of horror and disgust at the distractions with which they were kept perpetually vibrating between the extremes of tyranny and anarchy.” Although we assume stability, the baseline for the founders was democratic insecurity or, again quoting Hamilton, “the tempestuous waves of sedition and party rage.”
The founders oppose this democratic instability with a Constitution which creates regular processes and norms of democratic government such that “party rage” can always be channeled into the next election and sedition always looks dangerous to the people, because it is the people’s own Constitution that is being subverted. Popular riots in the streets are replaced by voting and direct representation. The remaining excesses of the people are tamed by indirectly elected institutions like the senate and the presidency.
But the “tempestuous waves” of democracy always remain lurking under the surface. We cannot assume that they have gone away simply because we can no longer see them. The Trump presidency has brought these waves to the surface, or, at least, just below the surface. By questioning so aggressively the legitimacy of the election that took him out of power, Trump has undermined the constitutional processes intended to contain the wave of sedition and party rage. For that reason, we should have even less confidence that the waves will remain under control.
Given all of this, it would be tremendously imprudent to continue bringing those waves to the surface by continuing the investigation of the man most capable of making them spill over. Further, those advocating for things like “truth and reconciliation” commissions, which would, it seems, investigate not just Trump but his supporters, are much too confident in the ability of our regime to control the waves. We shouldn’t expect his vast numbers of supporters to be willing to submit to the humiliation of their leader and, by extension, their own humiliation. Just as the losers should be respectful in their loss, so too the victors should be gracious in their victory.
In other words, even if Trump truly did illegal things and even if, or perhaps precisely because, his supporters seem crazed in their unflinching support of him, Biden should pardon him. He should pardon him not because it’s just but because it’s prudent. Democratic politics must sometimes sacrifice justice for the sake of tranquility. We don’t have much experience with this sacrifice because we’ve almost always had the stability in which we could freely pursue justice. But, without that stability, the unflinching pursuit of justice can become dangerous. As odd as it sounds in the United States to say, Biden should pardon Trump because it profits no one if we descend into the violence to which democracies have always been prone.
A Biden pardon would provide real evidence that he intends his presidency to help to reconcile the vast gulf that now exists between red and blue America. Mere words about reconciliation will not achieve much, especially as blue America continues to prosecute red America’s hero. A pardon would be the most presidential act Biden could take, indicating the tone of his presidency from the very beginning. Some in red America would call a Biden pardon condescending, an “olive branch” which, if accepted by Trump, would indicate that he actually did something wrong. Still, although red America might call it condescension, they’re still much less likely to resort to violence than if their hero is on the stand. Moreover, a pardon would commit Biden to a policy of moderation that tempers blue America’s dangerous desire to destroy the other side. When the two sides of America are as opposed to one another as they are right now, we need something dramatic to begin closing the gap.