In early August 1975, President Gerald Ford pardoned a polarizing figure whose actions posed a serious threat to American democracy. The man was not Richard Nixon, whom Ford had pardoned eleven months earlier, but General Robert E. Lee. After the Civil War, the prospect of prosecution hung over former Confederate members. In 1865, President Andrew Johnson issued a proclamation pardoning most of them, excluding Confederate leaders and those with property worth more than $20,000, among others. Three years later, Johnson felt it was time to move on, and he issued another proclamation extending the pardons to include those like Lee who had organized and led the rebellion. Still, they were required to swear an oath of allegiance and make a formal petition to regain their rights after renouncing their U.S. citizenship and taking up arms against the government. Lee’s application failed—one theory is that Secretary of State William H. Seward gave Lee’s papers to a friend as a souvenir—and he died in 1870, without a home country.
When Ford restored Lee’s U.S. citizenship, even though he was dead, he exaggerated the facts to the point of prevarication. Lee’s character was “a role model for future generations,” Ford said, making Lee’s reinstatement “an event that every American can be proud of.” Nixon’s pardon was more controversial, but it followed a similar logic. In the late nineties, Ford explained in an interview with Bob Woodward that Watergate had become such a catastrophe that there was no hope of progress on any domestic or foreign policy issue unless it was resolved. According to him, his motivation was to care about the fate of the country, not Nixon’s. He believes it is time for the country to move on, despite the scale and destructive actions of his predecessors.
Late last month, twice-impeached and back-to-back indicted former President Donald Trump arrived in an Atlanta, Georgia courthouse to face charges stemming from his alleged attempt to overturn the results of the 2020 election. By then, the spectacle of a former president being indicted had gone from unprecedented to obsolete phenomenon. In addition to the massive Georgia case, the grand jury has indicted Trump in a commercial fraud case brought by New York District Attorney Alvin Bragg and in two federal cases brought by Justice Department special counsel Jack Smith. The indictments: the first, in Florida, related to the mishandling of classified material; the second, in Washington, D.C., related to election interference. (Trump has pleaded not guilty to all of these charges.) The most serious charges have emerged in election cases involving Trump’s attempts to keep the presidency after being voted out. Of course, those attempts culminated in the Jan. 6 attack on the U.S. Capitol — the biggest threat to the peaceful transition of power since the conflict that stripped Robert E. Lee of his citizenship.
It’s not entirely surprising that Trump’s federal indictment has sparked murmured calls for a preemptive pardon from President Biden. (At the state level, it’s hard to imagine a New York governor issuing a pardon. In Georgia, the governor has no such power.) Marc Thiessen and Danielle Pletka at 6 Writing in the Washington Post after the first federal indictment was filed in January postal“, “Millions of people will think that Trump’s prosecution is illegal and any conviction is unjust. This will further erode public confidence in our justice system and the principle of equality before the law. After the second time, in August, the Miami Journal published an op-ed Herald Arguing that Trump should be pardoned “because of the dire effects that an extended trial and sentencing could have on our democracy.” The senseless slogan that spawned the phrase “too big to fail” during the Great Recession has a contemporary Corollary: too big to convict.
The common theme behind these arguments is that in an already hostile and difficult Trump era, the slow and protracted effort to preserve the rule of law will only deepen the country’s divisions. It is time – let us say in unison –move on for the country.
Foremost among all the reasons for pardoning Trump is that prosecuting political opponents is almost always a hallmark of authoritarian regimes. In most cases, this is true.However, proponents of this argument rarely admit the opposite—that refusing to prosecute someone, or instinctively pardoning that person, is precisely because He is a political opponent, at least as corrosive to democracy. It’s not hard to imagine that the idea of a Nixon pardon appeased members of Trump’s inner circle as they launched a ferocious attack on norms, policies and laws. Perpetuation of lawlessness among those in power is bound to breed more of the same. For example, the Confederacy’s relatively lenient amnesty provisions almost certainly facilitated the rise of violent white militias that disenfranchised blacks throughout the South in the long years after the Civil War.
It’s also worth recalling that Trump entered the White House with an understandable sense of his own impunity. Although tax planning has been going on for years, era, and sexual assault allegations made by more than two dozen women, there is always some reason not to prosecute Donald Trump. He has enjoyed a wealth amnesty all his life—a disconcerting immunity, although unlike current calls for amnesty, it has never been pretended to be something in our collective best interests.
The key problem with “Keep Moving On” is its uncertain direction. where to? Sometimes, despite grave wrongs, it is in a nation’s best interest not to seek justice. South Africa’s Truth and Reconciliation Commission, which presupposes repentance and transparency, is one such example. Trump’s campaign, which claims to have raised $7 million in less than three days after his mugshot was released, insists on the opposite: belligerence and deceit. At seventy-seven, for the first time in his life, he could face real consequences for his actions. In the short term, this will exacerbate divisions and fuel hostility. In the long run, this is the safest course of action for democracies. A pardon would embolden Trump and others like him. It will keep the country going, but into a more dangerous future. ❖