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"Breaking the law is not a political difference."
This very long New York Times article can inform our discussions about post-pardon trumpism. (small t trumpism) It's important and worth the read.
https://www.nytimes.com/2020/11/17/magazine/trump-investigations-criminal-prosecutions.html
In September, two former executive-branch lawyers, Bob Bauer (who served under Obama) and Jack Goldsmith (who served under George W. Bush) published an entire book, “After Trump,” addressing the subject of how to reform the presidency. They identified the many open doors that Trump had charged through and offered some 50 suggestions on how to close them, whether that meant rewriting existing laws or passing new ones. Among other things, they proposed requiring campaigns to report any contact with foreign governments and clarifying the obstruction statute to eliminate ambiguity about when the president has violated it. The one subject on which Bauer and Goldsmith couldn’t agree was what to do with Trump; they divided that chapter in half, with Bauer advocating for a full investigation and Goldsmith urging caution.
Even as I write this, Trump’s subversion of democratic norms continues. He still has not conceded, and Barr has overruled the head of the Justice Department’s Election Crimes department to approve investigations into “vote tabulation irregularities.” These legal maneuvers may be less about Trump trying to overturn the results of the election than they are about him trying to gain leverage to limit his liability when he leaves office. Even though Biden pledged during the campaign not to pardon him, Trump could still try to trade his concession for the promise of leniency. He could also try to pardon himself, though this has never been done before and may not hold up in court. (Another, probably more far-fetched scenario has Trump resigning so President Pence can pardon him.)
The nation may desire healing. But there is also the matter of justice, and there is no guarantee that what feels right now will look right through the longer lens of history. Ford was widely assailed for pardoning Nixon. But one of his most outspoken critics at the time, Senator Edward M. Kennedy of Massachusetts, later honored Ford with a Profile in Courage award, explaining that he’d been moved to rethink his views after witnessing the sprawling and protracted investigation into President Clinton by the independent counsel Ken Starr. It may be time to rethink Ford’s decision once more; it’s hard not to wonder if a Trump presidency would have been possible if Nixon had been criminally prosecuted rather than pardoned.
In that sense, the problem that Trump poses for Biden may also present an opportunity, a chance to repair more than just the damage of the last four years. To begin with, this may require recognizing that when a president brazenly flouts the law, electoral defeat might not be enough of a punishment. “There’s a mind-set that we need to reset,” Stephen Vladeck, a constitutional law professor at the University of Texas, told me. “Breaking the law is not a political difference.” It might also require recognizing that to really move on from Trump, “healing” may have to mean something fundamentally different from what it has in the past — and that without accountability, it may in fact be impossible.
Even as I write this, Trump’s subversion of democratic norms continues. He still has not conceded, and Barr has overruled the head of the Justice Department’s Election Crimes department to approve investigations into “vote tabulation irregularities.” These legal maneuvers may be less about Trump trying to overturn the results of the election than they are about him trying to gain leverage to limit his liability when he leaves office. Even though Biden pledged during the campaign not to pardon him, Trump could still try to trade his concession for the promise of leniency. He could also try to pardon himself, though this has never been done before and may not hold up in court. (Another, probably more far-fetched scenario has Trump resigning so President Pence can pardon him.)
The nation may desire healing. But there is also the matter of justice, and there is no guarantee that what feels right now will look right through the longer lens of history. Ford was widely assailed for pardoning Nixon. But one of his most outspoken critics at the time, Senator Edward M. Kennedy of Massachusetts, later honored Ford with a Profile in Courage award, explaining that he’d been moved to rethink his views after witnessing the sprawling and protracted investigation into President Clinton by the independent counsel Ken Starr. It may be time to rethink Ford’s decision once more; it’s hard not to wonder if a Trump presidency would have been possible if Nixon had been criminally prosecuted rather than pardoned.
In that sense, the problem that Trump poses for Biden may also present an opportunity, a chance to repair more than just the damage of the last four years. To begin with, this may require recognizing that when a president brazenly flouts the law, electoral defeat might not be enough of a punishment. “There’s a mind-set that we need to reset,” Stephen Vladeck, a constitutional law professor at the University of Texas, told me. “Breaking the law is not a political difference.” It might also require recognizing that to really move on from Trump, “healing” may have to mean something fundamentally different from what it has in the past — and that without accountability, it may in fact be impossible.
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