Donald Trump says that he’s our retribution. As president, Trump says that he’ll have the government prosecute anyone who had the nerve to make trouble for Trump, or to criticize him, or otherwise to make him feel uncomfortable.Joe Biden could forestall Trump’s efforts at retribution by pardoning the people that Trump says he’s likely to prosecute. Those people might include, for example, Adam Schiff, a vocal Trump opponent in Congress. Or Liz Cheney and Adam Kinzinger, the Republicans on the January 6 Committee. Or Anthony Fauci, loathed by MAGA for his role in the COVID response. Or Mark Milley, the former chairman of the Joint Chiefs of Staff, who supposedly committed “treason” near the end of Trump’s first term in office.
Jack Smith, the special counsel who prosecuted Trump, and Smith’s staff are probably safe. Federal prosecutors have broad immunity for actions taken in their prosecutorial roles. And I assume that Alvin Bragg, the New York state prosecutor, and Fani Willis, the Georgia prosecutor, are also safe. But Biden might choose to pardon these people anyway. These folks can’t be charged for anything having to do with their prosecutions of Trump but, in the words of Stalin’s head of the secret police, “Show me the man, and I’ll show you the crime.” Who knows what a politicized FBI and Department of Justice intent on prosecuting people might dig up as alleged crimes committed by Smith and the others? Pardons would avoid that possibility.
Even beyond that, there are plenty of other possible targets for Trump. Couldn’t the Department of Justice gin up charges against E. Jean Carroll, who sued Trump twice for defamation and has recovered judgments worth a little more than $88 million (plus interest)? Or Joe Scarborough? Or Mika Brzezinski? Or hundreds of other folks who have said nasty things about Trump?
For purposes of this column, the question is whether Biden should pardon Rachel Maddow. That’s just an example, of course. The real question is whether Biden should pardon any, or all, of the folks at risk of Trump’s retribution.
When I say retribution, I mean that Trump, who will be at the helm of the Department of Justice on January 20, could order the DOJ to investigate and file criminal charges against people. Trump could also do lesser things, such as ordering the IRS to audit his political enemies, but let’s focus on the big one — criminal charges.
Maddow (and the like) have of course done nothing criminal. Maddow’s well within her rights to criticize Trump; many would say that Maddow’s criticisms are correct, and Trump merits criticism. But that’s really beside the point. If the DOJ were simply to open an investigation of Maddow, issuing a subpoena compelling Maddow to appear before a grand jury, Maddow would incur expenses. If Trump were to convince the DOJ to commence a criminal case against Maddow, she would be forced to spend tens of thousands of dollars defending herself, even if she were able to get the case dismissed at an early stage. And if Trump ordered the DOJ to file the case against Maddow in a deep red state, with many Trump appointees serving as judges, a judge might not dismiss the charges at an early stage, which would force Maddow to spend hundreds of thousands of dollars defending herself at trial, despite the case being ridiculous from the start. Lastly, of course, once a case goes to trial, there’s always a chance that a red-state jury might convict, no matter how silly the charges.
Maddow is worth a lot of money, so she could afford to defend herself.
But Cheney, or Schiff, or Milley don’t have that kind of money.
Trump’s decision simply to start an investigation of those people would be burdensome. The DOJ’s pursuit of a criminal case could bankrupt these folks.
And Biden could preempt all these things, simply by granting pardons. Should he?
This is actually a pretty tough question.
On the one hand, Biden could pardon Maddow (and the like). Maddow would have the right to decline the pardon, leaving herself at risk. Or she could accept the pardon, avoiding the possibility that she would be investigated or charged.
If Maddow (and the like) accepted a pardon, the right-wing media would immediately have a field day: “Maddow (and Cheney, and Milley, and the like) is obviously guilty as sin! Think what she must have done to have Biden issue, and then have Maddow accept, a pardon! Criminality among these radical left lunatics is rampant! The only way they could avoid jail is by having the president issue pardons! Maddow belongs in jail! The pardon proves it! Scum.”
Hmmm. That’s not so good.
So Biden could do the opposite: He could choose not to issue pardons.
That would avoid having the right-wing media scream that folks on the left had plainly committed crimes.
And if Trump is just bluffing, and doesn’t actually seek retribution against his political enemies, there will be no criticism of anyone. The problem will have disappeared.
But it could turn out that Trump is not bluffing. He might actually order the DOJ to investigate, and charge, hundreds of his political enemies. Those folks would incur the huge expense and risk that I’ve just outlined, even though they had done nothing wrong.
Pundits on the left would criticize Biden mercilessly for his choice not to issue pardons: “How could Biden have been such a fool? Trump announced in advance that he was out for retribution. He appointed loyalists to every key position in the Department of Justice. Biden knew full well that all these people were going to be prosecuted. He had the power to forestall this, simply by issuing pardons. And he didn’t do it! What a fool! The guy must be senile, after all!”
Biden has a choice to make.
It is not at all an easy choice. He’ll be criticized either way — unless Biden chooses not to pardon, and Trump then chooses not to pursue his enemies, which is a huge gamble for Biden to take.
By January, we’ll know which route Biden chose. If he issues pardons, the reaction on the right will be immediate and loud. If he doesn’t issue pardons, and Trump in fact orders the DOJ to investigate and prosecute, the response will start once the fact of the investigations become public. The response from the left will thus come a little bit later, but it will nonetheless be fierce.
Whichever way it plays out, you can watch with both interest and dread, because you saw it coming.
Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].