Make Trump get blood on his hands

It's the only way to sap his power

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Two stories that broke over the last month seem to me to be connected in ways that much of the media is not realizing. The first is the news that the Biden administration is considering pre-emptive pardons for people who might be subject to political persecution when Donald Trump returns to office. The second is that FBI director Christopher Wray will resign rather than force Trump to fire him, even though it’s not clear that Trump’s pick for the job, Kash Patel, is going to get confirmed by the Senate (for more on Patel, read this deep dive into his worldview that I wrote a few weeks ago).

At face value, both of these things might seem reasonable. Trump has publicly mulled nakedly political prosecutions of Democratic Party officials and donors as well as media figures. Those prosecutions would be very unpleasant for the people on the receiving end of them. Even if they were unsuccessful, they could damage people’s careers and cost them a fortune in legal fees. Pre-emptive pardons would spare them having to go through it.

Meanwhile, Trump has made it perfectly clear that he intends to replace Wray with an FBI director who will be willing to go along with this campaign of retribution. So what does it matter if Wray spares himself the indignity of being fired and just resigns in advance?

Unfortunately, in both cases, the cure is worse than the disease.

Blanket pardons, blanket impunity - for Trump

A blanket pre-emptive pardon is a type of pardon that covers unspecified criminal activity. It basically allows the president to say “If this person committed any crime between X and Y dates, they cannot be prosecuted for it”. It’s the type of pardon that Joe Biden just issued to his son Hunter, but previously in American history it’s only been granted to one person - Richard Nixon, by his successor Gerald Ford.

Because this type of pardon covers any crime, it’s easy to see its appeal as a tool to protect against Trump’s retribution. It’s not clear exactly what charges the MAGA FBI might cook up against Anthony Fauci, who is hated on the right for helping coordinate the nation’s response to the pandemic, or General Mark Milley, the former chairman of the Joint Chiefs of Staff who called Trump a “fascist”. Precisely because their persecution is a political vendetta with no real legal basis, conceivably any charges could be invented to justify it. So a blanket pardon spares them from any possible prosecution.

But whatever personal protection the pardons might give certain people, they also bring a lot of problems.

The first is that they create the appearance that the individuals pardoned actually did something wrong - that the “Deep State” of right-wing fantasy actually exists and has been up to its eyeballs in criminality all along. At a stroke, one of Trump’s most potent political narratives - built entirely on a lie - would be vindicated.

Secondly, pre-emptive pardons would deny those granted them the chance to defend themselves in open court - and, more importantly, to vindicate the rule of law in the process.

Even the MAGA FBI is going to have tremendous difficulty actually securing prosecutions and convictions against Trump’s political enemies given the checks and balances which still exist in the American justice system. At a minimum, no prosecution can succeed without civil servants, grand juries, lawyers, judges, higher courts, actual juries, and appellate judges all having their say on it. Each of these can act to prevent a baseless investigation from resulting in a conviction, and there’s no magic button that even Kash Patel can push to make them all go away. To be targeted in a political prosecution will no doubt be unpleasant, but the chance of it ending in a conviction is actually fairly remote.

On the other hand, forcing Trump to actually attempt to carry out his charade of “justice” - and failing - would sap his power.