Democrats For Legal Impunity For (Only) Republican Presidencies leap into action

The campaign from the Democratic side for giving Trump and his collaborators immunity for any and all crimes they may have committed during Trump's Presidency is now under way. The trial balloons for giving Trump and his co´-conspirators a free pass on crimes committed in office has begun:

• Carol Lee et al, Biden hopes to avoid divisive Trump investigations, preferring unity NBC News 11/17/2020
• Michael Conway, Why Biden should pardon Trump - and we Democrats should want him to NBC News 11/17/2020

The law applies to the President of the United States. He is subject to impeachment by the House and conviction by the Senate in order to be removed from office. But the law still applies to the President and to all members of his Administration.

Gerald Ford set a terrible precedent when he issued a blanket pardon to Richard Nixon when Nixon resigned and Ford became President, giving Nixon immunity from prosecution for bad acts committed in office. Bad acts for which numerous senior Nixon officials were convicted and even did prison time. Old Man Bush - George H.W. Bush, the "moderate" Republican - pardoned a variety of defendants in the Iran-Contra crimes, thus ending the Independent Prosecutor's pursuit of charges against them. And, not incidentally, blocking legal inquiries that could have been directly embarrassing for him personally. The Cheney-Bush Administration authorized criminal torture and crassly flouted the law in other ways: Obama became President and declared he wanted to "look forward, not backward," so even those crimes by senior officials were not prosecuted.

These are seriously bad precedents. They flout the rule of law. It's just plain wrong to give government officials impunity for serious crimes.

It's also a real sign of weakness on the part of the Biden team and the Democratic Party that the Biden team is floating this idea while the Republicans led by Trump are trying to nullify the results of the Presidential election. The Republicans can only take this as a sign of weakness on the part of Biden and the Democrats, because it really is a gesture of weakness.

I want to parse the two NBC stories linked above a bit more. Michael Conway - not to be confused with NeverTrumper George Conway, husband of Kellyanne Conway - is not part of the Biden campaign or transition team, so far as I know.

He argues that Biden should pardon Trump, although he notes, "Biden's initial instinct was to oppose granting Trump a pardon. He actually foreclosed this option by pledging last May that, if elected, he would not pardon Trump."  (my emphasis) Whether that "instinct" was simply political positioning to keep Democratic base voters who may not have been enthusiastic for him on board, the position he took was the right one. It's actually a clear statement of how the Justice Department is supposed to work in making independently decisions on investigations and prosecutions based on evidence and without political inference.

The Biden pledge in question was reported by Quint Forgey in Politico, Biden pledges not to pardon Trump 05/15/2020:

The pledge from the presumptive Democratic presidential nominee came during a virtual town hall on MSNBC, when Biden was asked by a voter whether he would be willing to commit “to not pulling a President Ford” and pardoning Trump “under the pretense of healing the nation.”

“Absolutely, yes. I commit,” Biden responded, adding: “It’s hands-off completely. Look, the attorney general of the United States is not the president’s lawyer. It’s the people’s lawyer.”

A possible pardon of Trump by Biden would represent the second such exoneration of a former president by his successor in modern American history. President Gerald Ford famously pardoned Richard Nixon in 1974 after Nixon resigned from the presidency amid the Watergate scandal, facing the imminent threat of impeachment and removal from office. ...

Biden [lamented] how “we never saw anything like the prostitution of [the presidency] like we see it today,” and arguing that “what’s going on is an absolute travesty. A travesty of justice.”

“It is not something the president is entitled to do, to direct either a prosecution and/or decide to drop a case,” he said. “That is not the president’s role, responsibility. And it’s a dereliction of his duty.”

This is the relevant clip, Joe Biden Says He Would Not Pardon President Donald Trump The Last Word MSNBC 11/14/2020:

Michael Conway: a pardon of Trump would be a "healing" gesture with the added political advantage (to Republicans) that the Democratic base would hate it

Conway's argument basically comes down to saying Biden should pardon Trump because Conway just thinks that would be a nice thing to do. He makes the argument that the President should act like a national pastor, who presumably shouldn't do anything about evidence he might have of serious crimes by a previous pastor:

It may seem fair and emotionally fulfilling to treat Trump as he so often threatened to treat his own political opponents. But Biden made the case that he, and the country, ought to be better than that. As unsatisfying as a pardon would sit with many of us, this tough decision would be one good way to begin the healing Biden offered.

Healing? It would mainly be a signal to the Democratic base that Biden and the Democratic establishment weren't at all serious when they talked about Trump being a deadly danger to democracy. And it would be a sign to Congressional Republicans like Mitch McConnell that Biden has no intention of fighting seriously for his own positions. And a signal to the QAnon-ized Republican based that they can demonize Biden in the way they will do regardless of a pardon or not, but emboldened by the knowledge that Biden is weak in opposing rabid Republican foes.

And Conway even says explicitly, citing the example of Jerry Ford's pardon of Nixon, that it would hurt Biden politically with his own base. "Biden’s pardon of Trump would be even more courageous than Ford’s action — though, like Ford, pardoning his predecessor will subject Biden to intense, scathing criticism."

But the NeverTrump Republican pundits on MSNBC' Morning Joe would praise him for it, so there's that...

Because the Beltway Pod Pundits think that The One True Thing David Frum Ever Said is the way that things should be: "while Republican politicians fear their base, Democratic pols hate theirs"; (Gibbs on the Left FrumForum 08/10/2010)

Conway also invokes this argument, which I'm sure we'll hear a lot in the immediate future:

Democrats already know what the mirror image of that looks like. When Trump called for the jailing of his political opponents, he was justly condemned as promoting a vendetta characteristic of a banana republic. Despite the efforts of Trump’s Justice Department, no basis was found to prosecute his political rivals. Trump tried anyway; Biden can, and perhaps should, be better than that.

The answer to this is the one given by Biden himself in May. We have a Justice Department set up with rules, laws, and procedures as internal safeguards to pursue prosecutions on a legal and non-partisan basis. According to Biden's own correct statement on the matter, it would be a dereliction of duty by the President to interfere with that process. Even a Presidential pardon should come only after that process has run its course.

Looking Forward, Not Backward - by letting Republican officials get away with serious crimes in office

The NBC story on the trial-balloon leaks from the Biden campaign does include a restatement, of sorts, of Biden's May position. The story reflects different viewpoints because, well, it's a trial-balloon story to test public and press reaction. The lede is this:

President-elect Joe Biden has privately told advisers that he doesn't want his presidency to be consumed by investigations of his predecessor, according to five people familiar with the discussions, despite pressure from some Democrats who want inquiries into President Donald Trump, his policies and members of his administration.

Biden has raised concerns that investigations would further divide a country he is trying to unite and risk making every day of his presidency about Trump, said the sources, who spoke on background to offer details of private conversations.

They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he "just wants to move on."

Another Biden adviser said, "He's going to be more oriented toward fixing the problems and moving forward than prosecuting them."

Politics is politics. And if Biden allows this statement to stand without his publicly rejecting it in some way, he will be sending a signal to his new Attorney General that he doesn't want crimes committed by the Trump Administration prosecuted. And that's a bad and wrong signal to send for both rule-of-law and political reasons. Maybe not a technical dereliction of duty, but uncomfortably close.

Still, we need to keep our eyes on the ball, which is the independence of the Justice Department investigation and prosecution process from partisan political influence.

After the introductory paragraphs signaling that we want to give the scoundrels and crooks a free pass from prosecution, later paragraphs qualify the message:

"His overarching view is that we need to move the country forward," an adviser said. "But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department." ...

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn't going to tell federal law enforcement officials whom or what to investigate or not to investigate. ...

Biden's team is also reluctant to send any signal to Trump administration officials that the Justice Department wouldn't look into their actions, given that there are still nine weeks until the inauguration, another person briefed about the discussions said.

"While they're not looking for broad criminal indictments, they do want to make sure that people don't think there are no ramifications for any of their actions between now and the new presidency," this person said. [my emphasis]

Not exactly a ringing endorsement of the equal rule of law. But it's right, as far as it goes. That report also explains the uncomfortable complication that, you know, the law is the law:

But it will be difficult for Biden to avoid the issue altogether, given the expected calls for investigations into an array of issues involving Trump — from his administration's child separation policy to his taxes, possible conflicts of interest and potential violations of campaign finance law. The issue could set Biden on a collision course with some of his own supporters, who are eager for a wholesale examination of the Trump presidency.

"There's also a strong school of thought that believes the law's the law," a Biden adviser said, describing the internal debate.

"A strong school of thought." (?!?) By the way, "child separation policy" is a euphemism designed to make a systematic and sadistic policy of kidnapping refugee children from their parents, including literally taking newborn babies from their mothers.

But by presenting this as some kind of fifty-fifty option, Biden's team is definitely reminding us that establishment Democrats have a strong preference to give Republican officials impunity for crimes committed in office, an attitude that is radically different for the Republican Party's strong and loudly expressed preference for "lock her up"-type arbitrary, partisan use of criminal law and their contempt for the equal rule of law:

Still, multiple aides said, Biden is generally not inclined to see his Justice Department investigate Trump.

One of the reasons he has given aides is that he believes investigations would alienate the more than 73 million Americans who voted for Trump, the people familiar with the discussions said. Some Democrats, however, have said Biden should be prioritizing the concerns of his supporters, not those of his detractors.

This is a really sad example of the lazy and often irresponsible way the corporate press treats important matters of public policy as "horse-race" partisan narratives in a Both Sides Do It framing. Biden should be prioritizing fair and honest enforcement of the law. Whether his opponents or supporters support it is really secondary to his duty as President to see that the Justice Department enforces the law fairly.

The two main sides in this argument, which are not at all symmetric in their approach, look like this. One side is composed of Republicans and their corporate Democratic enablers who want Republican officials to be able to act in disregard of the law and suffer no legal consequences for doing so. The other is the side of Democrats, with maybe a few straggling NeverTrump Republicans joining in, who say just what Biden himself clearly said in May: "It is not something the president is entitled to do, to direct either a prosecution and/or decide to drop a case. That is not the president’s role, responsibility. And it’s a dereliction of his duty.”