I wrote a couple of weeks ago that there was a good argument for Biden pardoning Donald Trump. I no longer think he should be pardoned. I was making an argument there on the basis of prudence. The prudential question was: how much justice are you sacrificing relative to how much security you’d be gaining? The scales have now tipped further in the direction of justice and less in the direction of security. Impeaching, removing, and then prosecuting a seditionist seems worth it even if it risks some violence. Trump’s excesses of irresponsibility and disrespect for both the law and our basic constitutional traditions can’t go unpunished. Instead of letting it go, we need a national moment where we all, even his supporters, might realize that none of this was okay. None of this was acceptable. That national moment is now more important than settling down his seditionist supporters. I argued for the pardon so as to avoid what happened yesterday. It happened and they failed. The argument no longer applies. You only get one chance at a coup. If you fail; it’s very unlikely that you try again, so security is no longer the same concern. Having failed at their coup, we ought to “throw the book” at both the seditionists and their leader.
The scales were already tipped in favor of the common good. A pardon was never prudentially justified, in my view. The notion that the supporters of Trump like those who stormed the Capitol would have been mollified, reconciled or in some other good way affected by a pardon was always naive and remains naive.
I should add another important point: whether to pardon is a different prudential judgment from whether and when to prosecute. When and whether to prosecute is still an open question.
Yes. I agree. I would say further that impeachment is intentionally differentiated from prosecution. He could be impeached and not prosecuted or prosecuted but not impeached. He could also be both impeached and prosecuted. They’re constitutionally independent of one another.