Now Trump has lost the election, Pence could pardon him — but it’s Biden who should

It’s the lonely path, but it’s the right one

Joe Biden wins election - live results: 46th president declared after tight race against Trump to White House
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“My fellow Americans, our long national nightmare is over.” So spoke President Gerald Ford when he was given the impossible task of taking over the Oval Office after Richard Nixon’s resignation, in the wake of the Watergate scandal in 1974

Ford’s remarks upon taking the oath of office as the nation’s 38th president are notable today. “Our Constitution works; our great Republic is a government of laws and not of men,” he said. “Here the people rule. But there is a higher power, by whatever name we honor him, who ordains not only righteousness but love, not only justice but mercy.”

And it is an act of mercy – a presidential pardon for a corrupt former commander-in-chief – that Biden will likely invoke shortly after assuming office on January 20th, 2021. Like Ford, Biden has taken on the presidency from an incumbent who was mired in scandal, corruption, hatred, and bigotry. And no matter what he decides to do now, he will surely make enemies.

It is considered settled law that a sitting US president cannot face criminal charges, but it is important to bear in mind that they can face charges once they leave office. That was the risk Nixon faced when he resigned. And justice is always a balancing act.

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If criminal charges against Trump are officially brought — say, for tax fraud, campaign finance violations, bribery, obstruction of justice, or even negligent homicide — he could resign before election day and receive a pardon from his current vice president, Mike Pence. It’s something his former personal attorney Michael Cohen has predicted will happen. But will Pence feel as beholden to the president as he did before he saw the results of the election? He’d certainly have to think carefully about his position in the history books if he did so. More likely is that he will leave the decision to the courts and to President-elect Biden, who will then face two options.

On the one hand, Biden could allow the traditional justice system to take its course. This could put Trump in front of the news cameras for the next four years, battling potential criminal and civil charges. It could also give him a platform to continue to stoke the conspiracy theories and rallying cries that fuel his militant, white supremacist base.

On the other hand, Biden could grant Trump a blanket presidential pardon, like Ford did for Nixon. Trump wouldn’t face criminal charges and could hopefully disappear into the gaudy corridors of Mar-A-Lago for the rest of his life, whining about how he was wronged by the Dems to anyone willing to lend an ear.

In other words, Biden faces an incredibly uncomfortable choice. He can either appease Trump’s enemies and let a whole new set of Trump-related headlines overshadow his own presidency. Or he can make enemies within his own party by pardoning Trump but use his time in the White House to the fullest, passing progressive legislation and beginning to rectify some of the damage done during the last administration.

Either way, Biden faces what Ford described as “the lonely burdens of the White House”. And as a man who ran for president three times, I very much doubt that Biden will let Trump steal his limelight for four more years.

There is also a lesson to be learned for how we judge Biden going forward. Ford’s decision to pardon Nixon led to much blowback in the Seventies – just ask White House press secretary Jerald terHorst, who resigned in protest. But years later, some have revised their views on Ford’s decision. Those people include none other than Bob Woodward, one of the journalists who broke the Watergate scandal for The Washington Post, who in 2014 characterized Ford’s move as an act of courage. Woodward would go on to write an entire book — Rage — about Donald Trump.

Biden is likely to suffer a similar fate to Ford in order to own his own presidency and to unite the American people. He might be reminded of Ford’s words, who in 1974 said: “There is no way we can go forward except together and no way anybody can win except by serving the people's urgent needs. We cannot stand still or slip backwards.... As we bind up the internal wounds of Watergate, more painful and more poisonous than those of foreign wars, let us restore the golden rule to our political process, and let brotherly love purge our hearts of suspicion and of hate.”

The American people must go forward together. We must bind up our internal wounds and purge our hearts of suspicion and hate. We must drain our government of the corruption, bigotry, white supremacist rhetoric, and violence left in the wake of the Trump administration’s oppressive siege of ignorance and hatred, greed and insularity.

The only way to do that is to keep Trump out of the limelight and thus out of prison. It is the lonely path, but it is the only path forward.

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