Joe Biden's Options for Dealing with Donald Trump Are Worse than Watergate

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Biden would prefer to focus on his legislative agenda but some Democrats are pushing hard for the new administration to pursue legal action against Trump. Joshua Roberts/Getty

You can only be noncommittal about the crucial question of accountability for Donald Trump so long, especially when you are the next president of the United States. And for Joe Biden, with mere days left before he takes the oath of office on January 20, that time is just about up.

The 78-year-old Democrat, more comfortable preaching the politics of unity and reconciliation than backing a fire-and-brimstone approach, has not publicly—or privately, advisers say—backed impeachment or pushed for conviction in the Senate, even as a groundswell for justice has emerged in the wake of the Capitol riot. He hasn't weighed in on whether he wants to pursue criminal investigations into Trump's behavior—such as allegedly inciting the violent mob that stormed the Capitol and pressuring state officials to change the outcome of the election—but instead says he'll leave that decision to the Justice Department and his Attorney General-designate Merrick Garland. And, alternatively, for anyone hoping for a grand gesture to help heal the country, along the lines of, say, Gerald Ford's pardon of Richard Nixon to move America past Watergate, Biden has stated for months that that's not the way he plans to end this particular long national nightmare.

Yet Biden saying little to nothing about how he will tackle the deep polarization within the country and mounting pressure to hold Donal Trump accountable for his actions will no longer be a viable option either.

That Biden inherits a traumatically riven nation will be readily apparent as he takes to the steps of the Capitol to be sworn in this week. For the first time since 1869, the outgoing president won't even be there. Biden will stand in the shadow of the same building where two weeks ago a violent mob went on a deadly rampage out of anger over perceived but unfounded election fraud claims and where one week earlier Trump was impeached for the second time in little over a year for his alleged role in fomenting that attack. The audience will be considerably smaller than usual too, partly because of the uncontrolled pandemic but also to protect attendees from threats of further violence.

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The fervor of the pro-Trump forces whipped up by the outgoing president, here at a rally in Georgia, could prove problematic for incoming President Joe Biden as he seeks to unite a divided nation. ANDREW CABALLERO-REYNOLDS/AFP/Getty

What's more, few on Biden's side are in a conciliatory mood, as factions of the Democratic Party press aggressively to ensure there are consequences for Trump's possibly illegal actions while in office—partly to punish the president but also to bolster the rule of law and send a message to future leaders that such behavior will not be tolerated. Time and again during the January 13 debate prior to the vote to re-impeach Trump, Democratic members of Congress labeled the president and some of his supporters as "traitors," using words like "sedition" and "armed insurrection," who were promulgating a white nationalist ideology that needed to be ripped from the American body politic and tossed on history's ash heap.

"It's Joe Biden's job to be a moral leader and to morally repudiate what Donald Trump has done," says Cliff Schecter, co-founder of the D.C.-based political consultancy BlueAmp Strategies that created ads for the Biden campaign. "Reach out to our better angels, sure, but also point out that you're not going to do it the way that Donald Trump did it. He needs to clearly speak out about the damage Trump has done to our country."

Biden, then, must try to wedge himself between a seemingly unstoppable force (Trump supporters) and an immovable object (Democrats wanting action against Trump) and lead both. He will, aides say, reject the binary choice between "healing" and "justice" in favor of a combination in which he, in the role of kindly elder statesman, focuses on reconciliation while allowing Garland and prosecutors on the state and local levels to follow the evidence to whatever charges and trials may come.

Biden underscored his approach in a speech outlining his proposal for a $1.9 trillion stimulus package: "Unity is not some pie-in-the-sky dream. It's a practical step to get any of the things we have to get done as a country, get done together."

To the new president, what becomes of Trump is much less important than what becomes of Trump supporters. Within Biden circles, the oft-stated goal as dictated by the man himself is to move the United States "away from the Jerry Springer presidency to a Mr. Rogers presidency" in which messages of comity and neighborly Americana are so constant and frequent that they come across as both corny and heart-felt.

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Donald Trump walks by supporters outside the White House on January 12, 2021 in Washington,DC before his departure to Alamo, Texas. BRENDAN SMIALOWSKI/AFP/Getty

It's a tricky transition, when factions of the country are at an emotional boiling point and attention on what to do about Trump could prove a giant distraction that might undermine the ambitious legislation Biden hopes to pass.

Setting the Agenda

The solution, according to Biden insiders: Focus on what the new president can control—including the messaging around the initiatives he will propose. Framing the reasoning behind and benefits of proposed legislation in a way that speaks to the concerns of Trump voters as well as his Democratic base is critical.

"Whether Trump can run again in 2024 and whether he can tweet or make noise in some other way aren't things [Biden] can do anything about," says a transition official involved in guiding Garland's confirmation. If Trump is convicted in the Senate, he could be barred from running for office again, but Biden sees that as a matter for Republicans, 17 of whom would have to vote to convict him, to decide.

"What he can do," the official says, "is highlight an agenda that speaks to the frustrations of Trump voters in hopes that if their lives improve, their anger will abate."

Bidenites believe much of the agenda—another round of stimulus checks, major infrastructure spending that creates jobs, funding to build training programs to give coal and steel workers skills needed for green-energy enterprises—can soothe the white working-class anxiety that led many to support Trump. While there is no plan to re-examine the 2020 election for the non-existent widespread fraud alleged by Trumpists, Biden is open to a "holistic effort to delve into election practices" that would include funding to help localities beef up cybersecurity as well as measures to protect the voting rights of people of color, the Garland aide says.

That's not to say Biden plans to ignore the rifts in American society, especially on matters of race. There will be a reckoning of some sort, but the president himself will be only tangentially involved to the extent that he "will make the right kinds of signals, the overtures to the Trumpers that he wants to govern them, too, but also condemn white supremacy and support efforts to return it to the fringes of society again," another Biden adviser explains.

Yet it could be more complicated than that. Arie Kruglanski, a University of Maryland psychologist who studies deradicalization, believes Biden and other Democratic leaders must try to avoid embarrassing or humiliating Trump followers.

"The first thing that needs to be done is to cool the rhetoric and reduce vindictiveness in all shapes and forms," says Kruglanski, co-author of The Radical's Journey: How German Neo-Nazis Voyaged to the Edge and Back. "That means not demonizing Trump voters including the StopTheSteal-ers, because offending them is unlikely to bring them back into the fold. This is something Biden seems well-equipped to do given his track of working across the aisle."

A Big Gesture

To pardon or not, is that a question?

Historians struggle to identify a precedent that comes close to the circumstances Biden faces or similar to Trump's norm-busting presidency and populist movement. Senator Joe McCarthy, a Republican from Wisconsin, whipped up an anti-Communist furor in the 1950s that included spreading lies about political enemies with false accusations that ruined lives and careers, but he never amassed the sort of power Trump has, says University of Texas presidential historian Shannon O'Brien, author of Donald Trump and the Kayfabe Presidency.

"McCarthy was a senator who was one of 96 and who had a structure above him inside that system that contained him," O'Brien says. "In Trump, we have somebody who is at the top of the executive branch and who is only contained by the Constitution and the checks and balances by the other branches."

The only analog to what Biden confronts, O'Brien says, is the "long national nightmare" that was Watergate when it became clear that President Richard Nixon had been personally involved in a coverup of a break-in at the Democratic National Committee's offices. In 1974, President Gerald Ford granted a blanket pardon "for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in" during Nixon's entire White House tenure. A Gallup poll in the immediate aftermath found 53 percent of Americans opposed the pardon, and pundits have long believed it helped Jimmy Carter defeat Ford in 1976. But by 1986, sentiment had flipped: 54 percent of Americans felt Ford had done the right thing in enabling the country to move forward.

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The only other U.S. president to get a pardon: Richard Nixon (left), who was exonerated pre-emptively of crimes by his successor Gerald Ford (right). Bettmann/Getty

Biden, who was a freshman senator from Delaware at the time, "will probably look at that through his own perception of history to make choices to avoid the hatred that Ford got and the mistrust and the cynicism Ford created with that decision," O'Brien says.

Indeed, in Trump's case, Biden has already foreclosed that prospect. Asked point-blank about clemency for Trump in May, long before Trump's election misinformation campaign, the Capitol riot and the second impeachment but amid speculation of possible investigations into Trump's financial conduct as president, Biden would not bite. He told MSNBC's Lawrence O'Donnell: "It's hands off completely. The attorney general is not the president's lawyer. It's the people's lawyer. We never saw anything like the prostitution of that office like we see it today."

Precious few observers have seriously floated the idea at all since the Capitol riot. One exception is former FBI Director James Comey, whose firing by Trump in 2017 led to the appointment of special prosecutor Robert Mueller and his years-long probe into foreign interference in the 2016 election. Comey told the BBC the day after Trump's re-impeachment that Biden should "at least consider" a Trump pardon "as part of healing the country." The backlash on social media against his suggestion was withering, a preview of what Biden might face if he took that advice.

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Former FBI Director James Comey (right) has suggested Biden should consider pardoning Trump. Alex Kraus/Bloomberg/Getty

University of Baltimore law professor Ken Lasson, a conservative, also stepped into the line of fire with an essay in the Jan. 10 Baltimore Sun positing that Biden could "largely avoid the quagmire of political turmoil he's about to inherit" by offering Trump and "any potentially culpable Cabinet or staff members" full pardons for "misdeeds they may have committed while in government service." Lasson, who tells Newsweek in an interview that he wrote the essay prior to the riot, nonetheless stands by the message. "The country is so polarized now that I think a pardon would serve to dampen that," he says. "Biden is gonna get attacked no matter what he does."

Still, the Nixon pardon has come under fire in recent years as a precedent that enabled other presidential malfeasance by depriving the nation of a proper reckoning regarding Nixon's conduct. "The country could have withstood a trial, and there's no reason why Nixon should have escaped justice while everybody else who was involved helping him with his crimes didn't," says Jeff Timmer, a co-founder of the Lincoln Project, an anti-Trump PAC made of former Republicans. "If I could transport back to 1974 and advise Ford, I'd say don't pardon him."

Democratic consultant Cliff Schecter goes further, suggesting that President Barack Obama also relied on the Ford rationale of wanting to move the country forward when he directed his Justice Department not to pursue investigations into President George W. Bush's tenure related to how the U.S. got into the Iraq War as well as the use of torture in that conflict. Schecter says, "Neither time was the disincentive provided that might have kept Trump from doing some of the damage he did."

"If you tell people in power that you are going to not prosecute when they break laws in unbelievable ways, then they might as well go for it if they're the type of people who will," says Schecter, co-host of the UnPresidented podcast. "Do we need to heal? Absolutely. But not at the price of our nation's soul. There's no point in healing if healing is saying you can get away with whatever crimes you commit so you just go ahead and commit them and we'll just hope for the best and we'll all sing Kumbaya. That's the way you end up with a fascist government. That's what you end up with autocracy."

One event that could force Biden to take a stand on the pardon question is if Trump tries to pardon himself in the final days of his presidency. Several legal experts have reportedly warned Trump that it is probably not constitutional—no president has ever tried so it's untested—but Trump seems eager to defy that advice and give it a try.

"If he tries to pardon himself, it almost requires a strong reaction by Biden and makes it much less likely that there's a positive ending for President Trump," says Duquesne University President Ken Gormley, a legal historian who interviewed Ford at length about the Nixon pardon. "This would mean that any future president could sell the most sensitive state secrets, including the nuclear codes, to a foreign adversary for $1 billion in cash, and then pardon himself and walk out the door and there'd be no consequences. A future president could decide to actually plant a bomb in the middle of the Capitol and blow it up to get retribution against adversaries and then pardon himself. It is impossible that this can be the rule."

Two more reasons Biden probably won't bother to offer a pardon: Supreme Court precedent dictates that Trump would have to accept legal responsibility to accept it, and it would only cover alleged crimes on the federal level anyway. Trump has yet to acknowledge any responsibility for any of his myriad scandals in the White House or prior to taking office.

Then too, absolving him of federal crimes wouldn't address his potential culpability in New York, where Trump is under state- and city-level investigations for issues related to his business dealings and tax filings. Nor would it help in Georgia, where the Fulton County district attorney is weighing whether to look into the legality of the president's January 2 call to Secretary of State Brad Raffensperger to "find" him the precise number of votes to give his victory in the state.

"It takes two for this to work," Gormley says. "It cannot be that Biden would extend a pardon and President Trump would accept it and then deny any responsibility for anything and continue to create issues for Biden. There's no advantage to him in taking that rather dramatic step that will certainly upset members of his own party."

Pardon, self-pardon or nothing, Trump will "spend the rest of his life in court because of the New York cases and God knows what civil litigation will come up," says John Pitney, a political science professor at Claremont McKenna College in California who voted Democratic for president in 2020 for his first time. "Every ambitious Democratic prosecutor in America is going to try to find some way to get at him."

Trumpism's Strong Hold

The legal morass ahead won't help Biden win over Trumpists so invested in the anti-establishment disruption Trump triggered. But realistically there's little that will given how intense emotions are and how unshakably polarized the nation remains.

Even after the deadly storming of the Capitol, two-thirds of Republicans still believe Trump has made the party better, according to a new Axios/Ipsos poll—including 96 percent of those who identify as Trump Republicans. And more than half of them want him to run again in 2024. What happens within this Republican Party, says Timmer, is well beyond the new Democratic president's control.

"I don't see much changing over the next four years," he says. "Trumpists still control the apparatus of the party, they control the money. Trump is still a free man who is going to be running a shadow presidency. Whether he openly declares a candidacy or not, he's frozen the field for 2024."

Even the shift among some Republican politicians to finally disavow Trump after the Capitol riot won't make much of a difference, Timmer says. After all, while many denounced the president's behavior, in the end, only 10 GOP Representatives voted for impeachment, or less than 5 percent of the Republican membership of the House. And at least one of those members, Wyoming's Liz Cheney, the No. 3 Republican leader in the House, now faces calls for her resignation as a result. (Minority Leader Kevin McCarthy, who voted against impeachment but said Trump "bears responsibility" for the riot, defended Cheney and rejected calls for her ouster the day after the vote.)

"We're not going to suddenly see the establishment wing of the Republican Party assert its dominance," Timmer says. "It's not dominant. It's been subsumed. The Republican Party is going to look however Trump wants it to look for the foreseeable future."

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Republicans like Wyoming’s Liz Cheney, who voted for impeachment in January, have taken a lot of heat for their actions. Bill Clark/CQ Roll Call/Getty

That makes the likelihood slim that many Republicans will be receptive to outreach by Biden. "Trumpism is the view that only Trump's supporters are properly American," notes Robert Talisse, a Vanderbilt University philosophy professor and author of several books on political polarization. "In a lot of these cases, the very idea of 'partisan division' is not quite apt because some of these opponents don't sit on the same spectrum of partisanship as Biden does. It is something that has to burn out."

Effective change likely needs to come from within the GOP, not outside of it, Talisse suggests. "We can't approach this as if the burden for healing the country and fixing these deep fissures in the body politic falls strictly to Biden and the Biden administration," he says. "The real rot in all of this is in the Republican Party. The Lincoln Project knows this and even Mitch McConnell is starting to realize this. Republicans have to do something to recognize their own role in this."

What's more, with the FBI bracing for several waves of demonstrations and possible violence in the run-up to Biden's inauguration and beyond, Democratic activists says Biden must combat Trumpism through an agenda that investigates and roots out white supremacist ideology.

"They're telling us they're coming back, they're going to continue to be disruptive and we have to take them seriously when they make that threat," says Margaret Huang, CEO of the hate-group watchdog nonprofit the Southern Poverty Law Center, of racist groups involved in the Capitol siege. "We have to anticipate that [they] are recruiting, mobilizing and spurring others to join them. We have to anticipate that there are going to be other efforts at the state level and national level. We need to anticipate that this is going to continue for a while."

Walking a Fine Line

That's why Huang and others hope Biden, far from being overly accommodating to Trumpists, pushes forward a comprehensive agenda on racial justice and other economic and social imperatives that "goes a little beyond reconciliation." That is, they want to make sure that while he's reaching out a hand to Americans who opposed him, he doesn't forget the ones who elected him.

For Huang, this would include appointing a senior adviser on racial justice under his incoming domestic policy chief Susan Rice and establishing a National Truth, Racial Healing and Transformation Commission as proposed by Democratic Senator Cory Booker of New Jersey. And while Biden will be hands-off—mum, in fact—on whether Attorney General Garland, assuming he is confirmed, investigates Trump or Trump administration figures, those close to the discussions say Biden does want the Department of Justice to step up surveillance of white supremacist hate groups that Trump's DoJ demoted as a priority.

Kruglanski, the psychologist, agrees that such a reckoning is necessary but worries that executing it poorly could inflame divisions even further. White people who have glommed onto Trump's messages were ripe for it because they fear dramatic societal changes—new technology that is killing jobs, the country's increasing multi-ethnic population, changes in social mores around gender and sexual orientation—are "divesting them of their significance, of their dignity, their respect."

"Impeaching the president and removing him from office or entangling him in prosecution after he's departed from the presidency is going to have certain effects that need to be weighed against the unintended consequences that would enlarge suffering and that would consolidate or unify the populist movement that he was leading," he warns. "It might deter some but others will see Trump as a hero and a martyr of the movement, a kind of icon that would be remembered forever. His suffering is going to be a rallying cry for continuing the fight."

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House Speaker Nancy Pelosi, flanked by other Democratic Representatives, signs the article of impeachment against Donald Trump on January 13, making him the only president in U.S. history to be impeached twice. BRENDAN SMIALOWSKI/AFP/Getty

Timmer thinks Biden has managed his precarious circumstance well so far and that he will try to work across in as bipartisan a fashion as possible. "I give him an A++ in the way he's conducted himself since the election and the signals he's sending and the strength he's showing and choosing with his words, the calculating method by which he's choosing to speak and the times he's chosen to address things," says Timmer, a former chair of the Michigan Republican Party. "He's a canny enough, successful enough politician and has a decent enough character that he recognizes the position he's in and the signals he can send by trying to forge some level of bipartisan consensus."

Huang, too, believes Biden can soothe the nation and begin a process toward a calmer future. "I honestly, truly believe that we will overcome all of this and the country will come out in a better space because we're going to have to deal with and reckon with this violence," she says. "I'm optimistic because we have a record number of people voting to say we want a different world. I think we can get there. But we're going to need leadership and effort from the incoming administration."

Steve Friess is a Newsweek contributor based in Ann Arbor, Michigan. Follow him on Twitter at @SteveFriess.