President Biden should not issue “preemptive pardons” for the dozens of Donald Trump’s perceived enemies that he has vowed to “go after” when he takes office and has his own Attorney General and FBI Director in place.
It’s tempting to want to protect Liz Cheney, Jack Smith, Merrick Garland, Adam Kinzinger, et al, from vindictive harassment prosecutions, but the institutions that have stood up to Trump’s assaults in the past — the federal and state trial courts — will again demonstrate that meritless criminal prosecutions and civil lawsuits will be dismissed before trial, or if they are allowed to proceed to trial, juries will handily reject them.
The trial courts are the backbone of the American legal system. They are the places where harassment petitions go to die. In the trial courts, prosecutors and civil litigants have “to put up or shut up.” The coin of the realm in trials is evidence, not vituperation. In 2021, the trial courts entertaining the meritless claims of those citizens claiming that the 2020 election had been stolen hastily dismissed those cases in which the plaintiffs made serious claims of fraud but failed to produce hard evidence to back up their assertions.
The aftermath of these unsupported claims has been that the lawyers making unsupported claims have been disciplined by both the courts and state bar licensing authorities, with some of these lawyers disbarred or suspended from practice. Moreover, the newly partisan majority on the US Supreme Court will not resuscitate cases that trial judges and juries have dismissed because the claimants have not been able to produce evidence to back up meritless claims.
Rather than driving Trump’s enemies into confinement or disgrace, vindictive prosecutions will play into the hands of those wishing to delegitimize the second Trump administration from its outset. Trial judges handling these cases will not only dismiss these claims, but will condemn those who have filed them.
A preemptive pardon of multiple anti-Trumpers would also play into Trump’s hands. He has already called for the jailing of all the January 6 Congressional Committee members, without specifying any possible charge. A pardon would let Trump fulminate about their “crimes.” He would spend every available opportunity slamming the committee members as “pardoned criminals” who had engaged in a conspiracy to discredit him. Fully 30-40% of the electorate believe every fantasy he spins, and this outcome would further debase the body politic — all to Trump’s delight and benefit.
Not everyone who voted for the Trump-Vance ticket in 2024 signed up to support the debasement of the American justice system, including Republican Senators and Representatives.
