Last week, NBC News anchor Hallie Jackson asked Vice President Kamala Harris whether she will pardon former President Donald Trump if she wins the election. Trump faces federal criminal charges in Washington arising from the 2021 Capitol riot, and in Florida, based on classified documents found at his Mar-a-Lago residence.
Harris understands that some people will pressure her to pardon Trump, and that staking out a position now, days before the election, could be politically damaging. So she responded with a non-response: “I’m not going to get into those hypotheticals. I’m focused on the next 14 days.”
“But do you believe,” Jackson persisted, “that a pardon could help bring America together, could help you unify the country and move them, move on?” Harris replied, “Let me tell you what’s going to help us move on. If I get elected president of the United States.”
Whether to pardon Trump should prove to be an easy question for Harris. The answer is no, for several reasons.
First, Trump has not demonstrated that he deserves a pardon on the merits. As Chief Justice John Marshall wrote in 1833, “a pardon is an act of grace, proceeding from the power entrusted with the execution of the laws.” It derives from the English monarch’s royal prerogative to bestow mercy on deserving subjects.
The Justice Department has criteria for pardons, although the president is not bound by them. They include a requirement that five years have passed from an individual’s release from prison or, absent a sentence, the date of conviction. The pardon application guidelines also direct applicants to “bear in mind that a presidential pardon is ordinarily a sign of forgiveness and is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction.” Trump continues to spread lies about the 2020 election and has only ratcheted up his violent rhetoric since Jan. 6. He is simply ineligible for a pardon under the Justice Department’s clemency standards.
Second, even if Harris were to pardon Trump, it’s hard to imagine it accomplishing the national healing that such “amnesty” pardons are designed to promote. In 1795, George Washington issued the first ever presidential pardon to two men sentenced to hang for treason based on their participation in the Whiskey Rebellion, a Pennsylvania uprising over a tax on farmer distillers. Thomas Jefferson pardoned citizens convicted under the Alien and Sedition Acts, which had restricted speech critical of John Adams’s administration. Both Abraham Lincoln and Andrew Johnson pardoned former Confederate soldiers, including the president of the Confederacy, Jefferson Davis. In 1978, Jimmy Carter posthumously restored Davis’s rights of citizenship; Carter pardoned Vietnam draft evaders a year earlier.
Although controversial at the time, these historical amnesty pardons were aimed at helping America recover from a conflict or from political repression on the assumption that moving the nation towards healing was remotely possible.
Yet Trump’s vitriolic refusal to accept any responsibility for his role in causing the Capitol riot — as well as Republican Party leaders’ cowardly enabling of the his lies about a stolen election — has only grown. Trump is now promising to deploy the military against citizens, round up and deport millions of immigrants, abandon America’s foreign allies, instruct the Justice Department to prosecute his critics and greenlight vigilante and police violence to disincentivize domestic crime. He is in no position to trigger national healing. Without a change of heart from Trump, Harris would be on historically shaky ground pardoning him for splintering the nation after his 2020 loss.
In any event, Trump remains under indictment in Georgia and was convicted on 34 criminal counts in Manhattan this year. A presidential pardon, which can only be granted for federal crimes, would not touch those cases.
Third, pardoning Trump would destroy all that is left (if anything) of the rule of law for presidents, who wield unparalleled power over the military, federal law enforcement and the sprawling executive branch — and are thus uniquely positioned to commit harrowing crimes. The threat of a criminal president is especially severe following the Supreme Court’s creation of presidential criminal immunity in Trump v. U.S.
At the end of Trump’s first term, the various constitutional guardrails that exist to stave off abuses of presidential power had all but failed, with the exception of a possible criminal indictment. Four such indictments followed. But the Supreme Court, instead of upholding the rule of law, obliterated that check on presidential power in June. After all of this, a Trump pardon would only further public distrust in the law at a time when Americans are overwhelmingly disillusioned by the legal system — with many legitimately fearing that the system could fall to a full-blown dictatorship.
Fourth, Gerald Ford’s pardon of Richard Nixon should give Harris political pause. In pardoning Nixon for his Watergate crimes, Ford’s public rationale focused on national healing. “I cannot prolong the bad dreams that continue to reopen a chapter that is closed,” he wrote. “My conscience tells me that only I, as president, have the constitutional power to firmly shut and seal this book.”
But the public saw the pardon differently. While two-thirds of Americans had supported Nixon’s resignation, the same percentage believed that the pardon was wrong. They felt that Nixon had evaded justice by securing a preemptive pardon, which essentially prevented the justice system itself from operating. The press was also livid, and swiftly turned on Ford. Researchers later found that “Ford’s pardon of Nixon was more highly correlated with the drop in political trust than were any of the previous events of Watergate.”
If Harris were to pardon Trump, the public would see through the excuses and the backlash would be to her, not him. Worse, the Constitution itself would suffer unfathomable damage — and it can hardly take any more.
Kimberly Wehle is author of the new book “Pardon Power: How the Pardon System Works — and Why.”
