The former FBI director famously fired by Donald Trump doesn’t argue for a potential pardon on the basis of a legal defense. In fact, James Comey told the BBC that he personally thinks the outgoing president “belongs in jail,” but doesn’t think that will serve the best interests of the nation. Comey suggests that Joe Biden take a page from Gerald Ford and force a closure to the last chapter of American life in order to more firmly open the new one.
Comey also wants Trump to accept a pardon for more personal reasons, though:
“Donald Trump belongs in jail.”
Ex-FBI Director @Comey says while he “obviously believes” the president should be in jail, he doesn’t think “pursuing that is in the best interests of the American people”, adding Joe Biden should "consider" pardoning Donald Trump#Newsnight pic.twitter.com/RUghKyq5nW
— BBC Newsnight (@BBCNewsnight) January 13, 2021
Former FBI Director James Comey suggested President-elect Biden should consider pardoning President Trump if he faces criminal prosecution after leaving office.
“I don’t know, he should at least consider it,” Comey said during an interview with BBC Newsnight. “Donald Trump, he’s not a genius, but he might figure out that if he accepts a pardon, that’s an omission of guilt, the United States Supreme Court has said, so I don’t know that he would accept a pardon.”
Comey said that a potential pardon from Biden would help “as part of healing the country and getting us to a place where we can focus on things that are going to matter over the next four years.”
“I think Joe Biden is going to have to at least consider it,” he added.
Comey actually said “admission of guilt”; the Beeb mistranscribed it, and The Hill obviously just picked it up from the captions. That’s a point that would get made ad infinitum if Biden offered a pardon and Trump accepted it, of course. Trump could certainly argue that he didn’t intend it as an admission of guilt, and the lack of a resignation (as in the Ford pardon of Nixon) would make that an easier position to defend, but it does carry the stigma of admission to some degree.
Would Biden offer such a pardon, even if he followed the rest of Comey’s advice and offered full transparency for it? The only reason for Biden to do that would be to offer a reset to Republicans in Congress in exchange for a fair hearing on his agenda. Biden didn’t seem inclined toward that idea yesterday, when he appeared to tacitly endorse an impeachment trial in the first few days of his administration:
In a statement following the vote on the single article of impeachment, Mr. Biden stressed that in addition to grappling with the violence that occurred at the U.S. Capitol on January 6, which left four rioters and a Capitol Police officer dead, the nation also remains in the throes of the ongoing coronavirus pandemic and facing an ailing economy.
“I hope that the Senate leadership will find a way to deal with their Constitutional responsibilities on impeachment while also working on the other urgent business of this nation,” Mr. Biden said.
That’s not exactly enthusiastic cheerleading for a trial, but it’s also not Biden’s call either. The Constitution expressly notes that presidential pardons have no authority over Congress’ impeachment process anyway. That might have been Biden’s gentle push at Chuck Schumer to remember what the priorities should be.
However, a Biden pardon would almost certainly take the steam out of a Senate trial. It also would push Trump out of the national headlines to some extent, a move that could only redound to Biden’s benefit in his honeymoon phase. It would anger progressives who want Trump in prison, but it wouldn’t necessarily preclude those possibilities either. Trump faces some serious risk of prosecution in New York in a state-level criminal probe, as Nancy Pelosi pointed out in the context of a potential Trump self-pardon.
Of course, Biden could achieve the same end by simply instructing his Attorney General not to go after Trump, but that creates a couple of problems. First, although Biden has that authority under the unitary-executive principle, it still looks like political interference in law enforcement, a bad look which both parties really need to stop amplifying. Second, it’s simply not as beneficial to Biden, since that would stretch out quietly for months or even years as Biden’s base kept demanding action against Trump. If Biden’s inclined at all to give Trump a pass, a pardon rips that bandage off in one quick action, and that gives Biden the chance to benefit from it.
Politically, it would almost certainly boost Biden regardless of the anger it might momentarily generate from the Left. The pardon of Nixon cost Ford the next presidential election, but that was because it looked like an inside deal between two Republicans. If Biden pardoned Trump and framed it as an olive branch for national reconciliation, he might actually get a lot of mileage out of it. And for sure the national media would treat it much better than it treated Ford in 1974.
Biden might be inclined to follow this advice. The question then shifts to whether Trump would accept it — and I’d bet dollars to donuts that answer would be yes.