We know now what potential offenses the Justice Department listed on the Mar-a-Lago search warrant: removing or destroying government records, obstructing justice and violating the Espionage Act. But we still don’t know exactly what former President Donald Trump did: Was he looking to profit from our nuclear secrets? Or was it just the latest instance of his reckless defiance of legal rules that bind everyone else?
The difference matters. If Trump or anyone else was aiming to seriously damage our national security, there is little reason for the government to go easy on them. But what if the underlying conduct “just” involves negligent mishandling of the materials: Should a prosecution go forward? And, as important, should President Joe Biden flex his pardon power before a trial happens?
At first blush, the idea of a Biden pardon for Trump seems crazy. Liberal commentators argue that Trump should be prosecuted, whatever his ultimate rationale, because his ability to get away with lawless conduct in the past has strengthened him, and that his followers shouldn’t have a violent heckler’s veto over proper law enforcement. At the same time, Trump is already using the incident to build support among his followers and within the broader Republican coalition. Both poles of the political spectrum seem on board with further escalation of the criminal law here.
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