The published op-ed is here: www.dallasnews.com/opinion/commentary/2024/12/03/biden-should-pardon-trump/
My text follows:
Biden Should Pardon Trump and Associates—and Himself and His Own People
President Joe Biden is preparing to “pardon” a turkey on Thanksgiving at the White House as presidents have done for 77 years. This year President Biden should go further, much further, and pardon President-Elect Donald Trump. The pardon should include Trump’s key people. It should also include Biden himself and his own associates.
As long as he is President, Biden solely holds the pardon power. The U.S. Constitution’s Article II, Section 2, Clause 1 provides the serving president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Neither Congress nor the courts are involved in the pardoning process, and the proposal would not require agreement by or with Trump. This will be up to Biden and Biden alone.
Trump decisively won the 2024 presidential election. In his campaign, he and his team complained of the federal prosecutions of him initiated during Biden’s term and about the other allegations and investigations of criminal conduct on the part of Trump’s associates. Those matters did not prevent Trump’s clear election victory on November 5th, and Special Counsel Jack Smith has already wound down the Washington, D.C., criminal case against Trump for seeking to subvert the 2020 election.
A presidential pardon would do much more. In addition to the President-Elect, the pardon should embrace the core campaigners and advisors plus the spouse, children, and in-laws of the President-Elect.
As for Biden also designating himself as a subject of the group pardon, during the campaign Trump repeatedly announced that his administration would exact revenge by initiating prosecutions and investigations of Biden and the people significantly associated with him and the Democratic Party’s presidential campaign. So in addition to Biden himself, the pardon should reach all of those persons, along with Kamala Harris, and their spouses, children, and in-laws.
A few objections to such a pardon can be anticipated.
First, no specific criminal acts and dates have been articulated against most of the people included in this proposed pardon. But in its 1866 decision Ex parte Garland, the Supreme Court held that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction.” In short, a president can pardon even if no charges have been filed against the recipient.
President Gerald Ford's 1974 pardon of Richard Nixon, against whom no charges were pending, demonstrates this. It was granted “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974 [Nixon's resignation date].” That pardon refocused the American people on the future. The proposed pardon would advance the same purpose.
Second, some believe that acceptance of a pardon is tantamount to admitting guilt. I disagree, but the pardon would not specify any particular crime being pardoned with respect to any person except the particular crimes for which Trump has been indicted. Again, the Nixon pardon was completely vague as to specifics. And any beneficiary of the proposed pardon could reject it.
Third, some contend that a president cannot pardon himself. I disagree. While there is no historical precedent, in any event Biden is also immune to criminal charges for all official acts, according to the July 1, 2024, Supreme Court decision in Trump v. United States.
Last, a presidential pardon cannot affect either civil claims litigation or State officers’ enforcement of their States’ criminal laws.
Using the Nixon pardon as a model, the proposed pardon should cover “all offenses against the United States which the 2024 Republican and Democratic Party presidential and vice-presidential candidates, their respective families, and their associates as specifically identified in this document, have committed or may have committed or taken part in.” The period covered would be from the first inauguration of President Trump, January 20th, 2016, to his second inauguration, the same date in 2025.
The pardon would be unusual, but we have been living through unprecedented times—no presidential candidate before Trump ever made threats, dozens and dozens of times, to investigate, prosecute, imprison, and exile his opponents, Biden and then Harris, and their people.
As a legal historian, I note that every president near the end of his term pardons individuals he selects, and some or other Americans always disagree about their worthiness for clemency. Pardoning himself and his people is, moreover, something that Trump could do at any time after his inauguration. And by going forward now, while he holds the pardon power, Biden would demonstrate his deep religious faith that calls for forgiveness and love of neighbor, rather than retribution.
Further, as a retired lawyer, I see this pardon as very much like a mutual settlement of litigation, balanced, fair, and, in effect, reciprocal. The intent of the pardon would be, similarly, to avoid more vexation as well as to obviate, as much as possible, the acrimony, recriminations, and aspersions that infect and inhibit free public discourse today. It would take a significant step toward wiping the slate. It would help the American people move forward and focus on the specific policies and measures that the President-Elect will be instituting or proposing. Americans of all political stripes can then better discuss those matters, with reduced distraction from the bruiting of allegations of the past in the news and social media.
The proposed pardon should lay out that rationale. Our nation has suffered enough from acrimony and recrimination. President Biden can take this courageous first step toward national healing. If there is to be robust disagreement, then let it be over policy, and the future direction for our nation, and not over past grievances.
Mr. Daniel is a retired lawyer and legal historian. He is writing the biography of Hatton Sumners, who chaired the House Judiciary Committee, 1931-1947.