A narrow pardon for Trump?

But, with these risks in view, what now can minimize damage to the rule of law and American democracy? Even if the Justice Department concludes that prosecution isn’t warranted, Attorney General Merrick Garland doesn’t have a credible way of committing not to prosecute. But Biden does: the pardon power. Its judicious use might minimize damage to the rule of law, while shoring up our democratic norms. While hardly perfect, it might well be the least bad option to protect our constitutional democracy.

Biden, to be clear, has absolutely no reason to issue a blanket pardon of Trump. Nothing should be used to excuse treason, or rank corruption, or actions against the Constitution. But if the facts turn out to justify it, he could issue a narrow pardon covering only offenses related to the simple mishandling of classified material, reaching no other potential crimes. Critically, Trump could still be held accountable for his efforts to overturn the 2020 election.

In so doing, Biden could underscore the importance of forbearance when it comes to using criminal law against opposition politicians: He might even cite the GOP’s 2016 “lock her up” chants to illustrate the kind of behavior that’s flatly at odds with democratic norms. And he could remind Americans that a pardon doesn’t imply nothing criminal happened. Quite the contrary. It can reflect the fact that someone broke the law while endorsing powerful reasons for not punishing them.