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Four years ago, January 6 joined 9/11 and December 7, 1941, as one of the darkest days in our history.
The next date to watch will be January 20. That day, amid pomp and fanfare, Donald Trump will swear to “preserve, protect, and defend the Constitution.” And that may be the day that he commits the first abuse of power in his new presidency.
Trump has pledged to pardon many of the insurrectionists who assaulted the Capitol in his name. “It’s going to start in the first hour,” he told Time magazine. “Maybe the first nine minutes.”
This would be extraordinary, an unprecedented abuse of presidential authority, the culmination of a cover-up. The vaunted guardrails failed, mocking the very idea of accountability.
It started with the senators who voted to acquit Trump in his second impeachment trial, an act that would have prevented him from running for a second term in office. Sen. Mitch McConnell (R-KY), who had fled for his life from the insurrectionist mob, refused to convict Trump. “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one,” he said.
Then there was the Justice Department, inexplicably slow to get the January 6 prosecution going.
And finally there was the Supreme Court. First it stalled, only hearing Trump’s claim that he was immune from prosecution in the very last hour of the last day of the term. It was an easy case, and the justices should have quickly ruled to allow a trial to go forward.
Instead, the Court issued one of the worst decisions in the country’s history. Trump v. United States held that former presidents enjoy vast immunity from prosecution if they can claim that their crimes were committed as part of “official acts.” It gave the lie to McConnell’s vote to acquit Trump. And it amounted to an instruction manual for lawbreaking presidents: Make sure that if you commit a crime, your coconspirators also draw a taxpayer paycheck. Then you’re off the hook.
Trump did not face constitutional accountability through impeachment. He did not face legal accountability through the courts. Now he will compound the damage with a mass pardon aiming to beatify the attackers who left four people dead and 150 police officers injured.
Joyce Vance, a former federal prosecutor and senior fellow at the Brennan Center, explains it well: “If Trump pardons January 6 rioters, he would be using the pardon power to erase an attack on Constitution and country. The purpose of that attack was his personal benefit — if it had succeeded, it could have permitted him to stay in power after losing the election, contrary to every principle of American democracy. An exercise of the pardon power along those lines would have no resemblance to what the Founding Fathers intended.”
The pardon power is in the Constitution. It has been used sparingly, and rarely at the beginning of a term. When Gerald Ford pardoned Richard Nixon one month into his presidency, Ford faced a congressional investigation and enough public outrage that it doomed his reelection. Jimmy Carter pardoned those who had evaded the Vietnam War draft, a broadly popular bid to heal a divided country.
Trump’s pardon of January 6 rioters would divide, not unify, the country. A recent Washington Post poll showed that two-thirds of the public opposed such pardons. Trump’s claims that the rioters are “political prisoners” has hardened partisan attitudes. In a poll last month, two out of three Republican respondents supported mass pardons.
And the lies about election fraud live on. Claims of a rigged election vanished once Trump won. But false claims of noncitizen voting are the rationale for the Save Act, which would essentially require Americans to produce a passport or a birth certificate in order to register to vote. Millions of citizens do not have ready access to those papers. This bid to suppress votes is 1 of 12 bills set to receive fast-track treatment under the new rules adopted by the House of Representatives.
What is left for all of us? A cynical shrug is not enough. We should demand that Trump pull back from his threat to issue mass pardons to the insurrectionists. We should insist that members of Congress speak out. We should shout from the rooftops.
Will this matter? Unlikely. But Trump has an audacious goal: to reinterpret one of the most public crimes in history, to wrap it in the gauze of patriotism. A public outcry over his pardons would achieve its own result: to remind the public that Trump tried to overthrow the Constitution. Whatever else happens in his presidential term, it would be marred from the beginning.
