Harry Litman - How to think about protective pardons

The whispers about possible pardons by Biden as preemptive moves against reprisal prosecutions by the incoming administration have quieted over the last few weeks. That could indicate that the topic is no longer being debated in the Oval Office, which has its way of generating gossip on the ground. I hope that’s not the case. The pardons present a complicated set of considerations for Biden and the White House, and I think that they’re one of the trickiest issues that remain on his plate. But on balance and based on the most important principles in play with the advent of Trump 2.0, I think it’s very important for him to execute on them.

Let’s start with the gravity of the issue. Trump has been blathering for years about prosecuting his enemies, by which he means basically any prominent person that pointed out his obvious guilt for the most serious crimes against the Constitution by a President in our history. His announced targets include, for starters, Joe Biden (whom he has called “the most corrupt president in the history of the United States”), Kamala Harris, Liz Cheney, and Adam Schiff (“a sleazebag and a traitor [who] should be prosecuted for the damage he has done to our country”). The list doesn’t remotely stop there: at different points, he has suggested prosecutions are in order for various CIA and FBI officials and the former chair of the Joint Chiefs of Staff; prosecutors in cases involving him, including Letitia James, Alvin Bragg, and Fani Willis; and journalists and media organizations, including Mark Zuckerberg and Google.

Trump’s signature move is to keep opponents off balance with a series of outrageous suggestions. He is doing the same here, where he is unlikely to follow through on many or most of the highest profile targets. However, some such prosecutions, however idiotic and sordid, can’t be discounted, particularly with his base baying for it.

The graver indications of an actual set of reprisal investigations and prosecutions emerges from Trump’s selection to head the FBI, Kash Patel. Patel notoriously compounded a list of 60 persons who participated in investigations of Trump or were otherwise antagonistic and therefore need to be punished. The list is so broad and scattershot as to be laughable, but I doubt anyone on it considers it funny. And in fact, I know people on it—who it goes without saying but we should repeat again and again, have done nothing remotely wrong or criminal—who already are planning for the exhausting and hugely expensive prospect of responding to a bogus investigation.

https://harrylitman.substack.com/p/how-to-think-about-protective-pardons