The Weekly Sift

I can imagine showing Trump mercy, but only if he changes his behavior,
which I don’t expect him to do.

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It shouldn’t be surprising that many Republican presidential candidates are promising (or at least considering) a pardon for Donald Trump if the electorate entrusts them with that power. Some Republicans go so far as to suggest that Biden should pardon Trump in order to “heal the country”. But what is surprising, at least to me, is that apparently a significant fraction of Democrats agree. [1]

So let’s think this through. There are two standards you might use to judge a pardon: justice and the national interest. They don’t necessarily point in the same direction: You might imagine that even if Trump is guilty as sin, the United States will be a better place in the long run if he gets off. (Or you might not.)

Justice. To me, it’s pretty clear that sending Trump to jail would be just. He has broken numerous laws over his lifetime, and has manipulated the justice system to escape accountability again and again.

He was proven guilty in both of his impeachment trials, even though Republican senators decided to stand by him for political reasons. When he defrauded the Trump University students, he got off by writing a check. He has cheated on his taxes for decades. The Trump Foundation was a scam, but again he escaped with merely financial consequences. The Trump Organization was criminally convicted in a tax-avoidance scheme, but not Trump personally. A jury ruled that he sexually abused E. Jean Carroll, but that’s a civil lawsuit. The New York Attorney General has made a sweeping case of “numerous acts of fraud and misrepresentations” over 20 years, but again, it’s a financial lawsuit that won’t send him to jail.

He’s currently facing two criminal indictments: 34 counts of falsifying business records in New York state court (arising out of the Stormy Daniels hush-money payment that Michael Cohen went to jail for), and the 37-count federal indictment relating to the Mar-a-Lago documents.

In both of the criminal cases, it’s worth observing that almost none of Trump’s defenders are challenging the fact of his guilt: The 34 business records in the New York case really are false, he really did violate the Espionage Act, and he really did obstruct the government’s attempt to recover the documents he stole.

Defenses of Trump are either technical (the New York charges should be misdemeanors and the statute of limitations should have run out) or diversionary (what about Hillary Clinton? what about Hunter Biden? isn’t this all political?).

But the bottom line is that he did the things he’s been charged with. Everyone knows it.

And then we get to the indictments still pending, which most likely will cover even worse behavior: Later this summer, Georgia is likely to indict him for his fake-elector scheme and his attempt to pressure Georgia officials into cheating for him in the 2020 election. And Jack Smith is still investigating the larger conspiracy the fake-elector scheme was part of: Trump lost the 2020 election, knew he had lost, but schemed to stay in power through illegal means, including inciting violence against Congress. [2]

That was undeniably the worst breech of faith any American president has ever committed. If he had succeeded, all future elections would be meaningless, and the American experiment in democracy would be over.

So does he deserve to be in jail? Does he deserve to stay there until he dies?

Yes. Unquestionably.

The Trump distortion field. That said, we need to be careful not to get caught in the Trump distortion field. In Trump’s mind, everything is about him. There is no right or wrong, just for-him or against-him. No one has principles, they just love him or hate him. [3]

What we saw for four years was the nation being run in his personal interest. The Covid pandemic, for example, was bad for his image, and a lockdown would slow the economy and hurt his reelection chances. So he told the country Covid was no big deal. It was just another flu; there weren’t that many cases; it would all clear up on its own; and so on.

The result was that the US government was slow to react, and probably hundreds of thousands of Americans died unnecessarily. (If we had the same death rate as Canada, about 700,000 dead Americans would still be alive. An opinion piece in Scientific American labeled Trump’s response to the pandemic “incompetent and malevolent”. ) But so what? Minimizing the pandemic was good for Trump, and what else matters?

If you stand too close to Trump, or let your eyes fix on him for too long, you can get caught in the same mindset: All that matters is what happens to him. If you like him, he should be president again, probably forever. If you don’t, he should die in jail.

In order to think about the national interest, you need to consciously wrench your mind out of that distortion field: It’s not all about him. It’s about us. It’s about the country. What’s best for the United States of America?

I just said I think he deserves to die in jail. But personally, I don’t need to see that happen. He did terrible things to this country and set terrible forces in motion. But our top priority should be to stop those forces. What happens to him is secondary.

The national interest. So what’s the national-interest case for Biden to pardon Trump? In the Washington Post, American Enterprise Institute fellows Marc Thiessen and Danielle Pletka claim that such a pardon would “heal the country”, “spare the country the ordeal of a trial”, and make Biden “a true statesman”.

The central problem, they claim, is that the public is not convinced of Trump’s guilt or that the law is being applied fairly to him.

Selective prosecution is not a defense in a court of law, but the court of public opinion is another matter. Millions will see Trump’s prosecution as illegitimate, and any conviction as unjust. That will further erode public confidence in our judicial system and the principle of equal justice under law.

In addition, prosecuting a political rival sets a bad precedent. It “opens Pandora’s box”.

A Trump trial would be one of the most divisive events in the history of our republic. It would set a new precedent — and create enormous pressure on the next Republican president to go after President Biden, his family and other Democrats.

Let’s take these points one by one.

Pandora’s box. Biden did not open this box and nothing he can do will shut it.

If using the government’s power to investigate the president’s political opponents is “Pandora’s box”, it was opened when Trump tried to extort Ukraine into investigating Joe and Hunter Biden, which was the subject of his first impeachment. Or maybe it was already open when Michael Flynn encouraged a chant of “Lock her up!” at the 2016 Republican convention.

If Trump becomes president again, does anyone really believe he won’t abuse his power in the same ways he did last time? Will Biden’s pardon fill him with gratitude? Will he slap his forehead and say, “Oh, now I get it. I’m supposed to use my power in the country’s interest!”?

Of course not. Whether he is pardoned or not, if he has a second term President Trump will seek revenge on everyone who has crossed him. Someone like Jeffrey Clark will be his attorney general, and then we’ll learn what a weaponized Justice Department really looks like.

If some other MAGA-friendly Republican is elected, we can expect him or her to abuse power in whatever ways present themselves, independent of what Biden does now. [4] The MAGA base will expect no less.

The second problem with the Pandora’s-box point is that it ignores the difference between guilt and innocence. Remember: Trump is guilty of the things he’s been charged with. That matters.

If Biden is actually committing crimes — as Trump did and does and will do in the future — then by all means the next administration should prosecute him. But if he isn’t, then he shouldn’t be prosecuted.

Is that really so hard to understand?

Apparently it is, because we’re already seeing House Republicans abuse their impeachment power. Trump was impeached twice because he committed impeachable offenses. MAGA Republicans are now seeking to impeach Biden because … well, it’s tit-for-tat. They have nothing on him, but they want revenge for Trump’s impeachments. [5]

Public opinion. Back when I was in high school, one of my friends was paranoid. He was sure the rest of us were talking behind his back and making plans we didn’t tell him about. Almost anything could set him off and derail what would otherwise be a fun event. So avoiding any appearance of conspiracy became an important part of any plan.

In short, his paranoia caused us to talk behind his back and work out strategies for handling him. In retrospect, that probably wasn’t the best response.

It’s not the best response here either.

The idea that Trump is a victim of selective prosecution, and that the charges against him are unjust and illegitimate — those notions didn’t arise spontaneously. They’ve been carefully cultivated by the right-wing media and by Trump himself. [6]

If the Biden administration gives in to that point of view by reading the polls and letting Trump walk, then it winds up doing precisely what Trump is accusing it of doing: selectively enforcing the law to satisfy political considerations.

In the long run, the best way to maintain the appearance of justice is to act justly. It’s not a perfect solution — people can still lie about you or view you through the lens of paranoia — but at least you can defend yourself with integrity.

The ordeal of a trial. For the moment, let’s grant the assumption that Trump’s multiple trials will be national ordeals, and may even result in riots, shootings, bomb threats, and other political violence from the same kind of people who have been violent in his name in the past.

How should the nation avoid that trauma? Thiessen and Pletka put the onus on Biden: He should preempt a federal trial by pardoning Trump. (However, there’s not much Biden can do about the New York or potential Georgia prosecutions.)

But Steve Benen points out that there’s another way to avoid a trial: Trump could plead guilty. In the wake of the Hunter Biden plea, it would be hard for the government not to offer him a pretty sweet deal. Maybe he gets a year or two of house arrest at Mar-a-Lago, where he can continue to host parties and work on his golf game.

And I could be OK with that. As I said above: He may deserve to die in jail, but I don’t need to see it happen. I could accept compromising on justice if it accomplishes something for the nation.

And what would a Trump plea deal acquire for the nation? Resolution.

The two realities. Political polarization is indeed a serious national problem. But it arises out of a deeper problem: Trump’s supporters have created their own reality, which they work hard to maintain.

In MAGA reality (which Rachel Maddow has dubbed “Earth-2“, following a trope from the DC superhero universe), Trump has done nothing wrong, but is being persecuted by the Deep State, which is afraid that he will “drain the swamp” if he returns to power. This is all nonsense, but it is very persistent nonsense that can justify any level of political shenanigans, including violence.

The problem with a Thiessen/Pletka unconditional pardon is that it does nothing to resolve the gap between Earth-1 and Earth-2. They admit as much: “Trump wouldn’t have to admit he did anything wrong.”

Quite the opposite, in fact. It’s pretty easy to predict how Trump would crow: His immense popularity and the weakness of the government’s case had forced Biden to back down. On Earth-2, compromise is a sign of weakness, and that’s how they’d frame it: Trump is strong; Biden is weak.

Rather than depolarize the situation, a pardon would ramp up pressure to also release the other “political prisoners” — those convicted of January 6 offenses. After all, Biden would have admitted his prosecution of Trump was all political. So weren’t the prosecutions of Trump’s supporters political too?

An unconditional pardon would encourage a larger political trend on the Right: the belief that laws should not apply to them. For example, look at Texas Governor Greg Abbott’s support for pardoning convicted murderer Daniel Perry. Perry murdered a man protesting police brutality in Austin; the stand-your-ground argument Abbott favors was offered by Perry’s defense and rejected by the jury.

But Perry is a right-winger who killed a left-winger, so let him go. Ditto for Kyle Rittenhouse, who didn’t just get off — he’s become a hero because he killed a couple leftists. Go team!

This is how the Weimar Republic fell; it gradually lost the will to defend itself against right-wing violence. The Beer Hall Putsch of 1923 had no chance of overthrowing the government. Much like January 6, it was an almost comical collection of errors and exaggerated expectations. For his leading role in the putsch, an obscure and funny-looking politician named Adolf Hitler was found guilty of treason. He was leniently sentenced to a mere five years in prison, and then let go after nine months, which he had spent writing Mein Kampf.

As we all remember, he and his followers were so grateful for the government’s mercy that they never caused a problem again.

What should happen. The virtue of a Trump plea deal is that the case reaches resolution: Trump admits he committed crimes. To that extent at least, Earth-2 rejoins Earth-1, where the rest of us live.

But suppose he doesn’t want to do that — which I’m sure he doesn’t. [7] Well, then, there’s still something to be resolved, and that’s what trials are for.

At the conclusion of the trial, maybe some MAGA fanatic will ignore the evidence and hang the jury, but for the moment let’s assume not. Then there’s a result: not a he-said/she-said, but a verdict. Trump is guilty.

What then? Again, there’s a chance for mercy — a light sentence — but only if Trump accepts the verdict. On the other hand, if he stays his course, if he denounces the judge, the jury, and the entire American justice system, then he needs to go to jail.

If he wants to keep maintaining his alternate reality — and encouraging his followers to join him there — no one can stop him. But showing him mercy in that situation accomplishes nothing for the nation. As far as I’m concerned, in that scenario he can stay in prison until he dies. It’s only just.

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[1] 30% of Democrats in one poll, though I find myself suspicious. A number of the questions in the poll frame issues in a Trump-friendly way — like asking people if they think Joe Biden or Hillary Clinton also mishandled classified documents before asking their opinion of the Trump indictment. So I wonder if the poll didn’t so much measure public opinion as talk people into something, a technique known as “push polling“.

I’ll bet if you pushed in the other direction, preceding the pardon question with ones framing the situation against Trump (“Should former presidents be above the law?”), you’d get very different results.

Nonetheless, I’m sure the number of Democrats supporting a pardon is not zero, because I know one personally.

[2] Ordinarily, I would wait to see the indictment and hear his potential defenses before I declared him guilty. But we all saw the January 6 hearings, where nearly all the witnesses were Republicans, including many from his own administration; he fought to keep as many of them as possible from testifying; and the people most loyal to him either defied subpoenas or repeatedly pleaded the Fifth Amendment rather than try to clear him. He’s guilty.

[3] That’s why he keeps getting surprised by the people he appoints to office. Jeff Sessions, John Kelly, Bill Barr, Pat Cipollone — they were on his side, so why did they stop doing what he asked them to do? Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett — they were supposed to be Trump-lovers, so why didn’t they give him the presidency after he lost the 2020 election? How did they become Trump-haters so quickly?

[4] Ron DeSantis is already auditioning for this role by abusing his power against Disney and passing laws targeting trans people that have no chance in the courts because they’re obviously unconstitutional.

[5] The two parties are not the same in this regard. Republicans “opened Pandora’s box” by impeaching President Clinton on flimsy grounds, and Democrats could have fired back by targeting his successor (George W. Bush) for his torture policies (which would not have been so flimsy). But the day after the 2006 election that made her speaker, Nancy Pelosi announced that impeachment was “off the table”.

[6] There’s an echo here of the Big Lie. On January 6, when Ted Cruz argued against Congress certifying Biden’s election, he called for appointing an electoral commission “to conduct a 10-day emergency audit, consider the evidence, and resolve the claims [of fraud]”. (It’s a mystery to me what he thought could be accomplished in those ten days. If the commission came back and said, “We haven’t found any evidence of fraud, so Biden won”, would Trump have said “Well, OK then”?)

In his argument for delaying certification, Cruz did not point to any evidence of fraud, but to polls that said large numbers of Americans believed there might be fraud.

Recent polling shows that 39% of Americans believe the election that just occurred, “was rigged.” You may not agree with that assessment. But it is nonetheless a reality for nearly half the country. … Tens of millions of Americans will see a vote against the objection as a statement that voter fraud doesn’t matter, isn’t real and shouldn’t be taken seriously.

Why did “tens of millions of Americans” believe the 2020 election was rigged? Because Trump and his supporters had lied to them. Delaying certification would have rewarded Trump for lying so successfully.

Same thing here. Trump’s done a very good job of fooling his supporters into thinking he’s being persecuted. But he isn’t; he’s being prosecuted because he committed crimes. The government should deal with reality rather than shadow-box with the effects of Trump’s lies.

[7] No one ever argues that Trump should do something he doesn’t want to do because it would be good for the country. Such considerations only apply to Biden.