Yesterday, as the news set in that President Trump had pardoned almost everyone involved in the Russia scandal, I saw an editor at one of the big political publications say that with this step President Trump had taken one more step in erasing the Mueller probe. This is wrong. And explaining why it’s wrong gives me another opportunity to reaffirm my belief that knowledge, a public accounting of what happened is far more important than punishment for individual wrongdoers.
What Trump completed was the the cover-up, the pay offs he’d promised, either explicitly or implicitly, in exchange for the silence of his coconspirators. As it happens, only Paul Manafort was even still in prison or serving time. For the rest it was just symbolism. But again, what is important is a public accounting of the facts.
From that perspective, these pardons mean fairly little. I’ve heard some claim that the upside of these pardons is that now the key players can’t plead the fifth. Even narrowly speaking I believe that is not true since most or all could face state jeopardy. But more broadly it’s a fallacy of legal literalism. Sure they can’t plead the fifth. But they can lie. They can claim they don’t remember. And they will. Don’t think this means anyone can be compelled to cooperate.
But in most cases, starting in a month, cooperation becomes less important. Because there are documents. A new President not invested in the cover up changes the equation dramatically. Everything that has been bottled up at the DOJ, in the intelligence services, in the President’s tax returns, in the voluminous records of the US government have been bottled up because of the President’s slow-rolling, mostly spurious claims of executive privilege or simple non-compliance. All that power disappears on January 20th and translates into the hands of Joe Biden. An ex-President has no privileges to claim whatsoever. In the past, incumbent Presidents have deferred to former President’s on claims of privilege. But that is purely a courtesy. All of these documents and records are the property of the United States government and they are under the control of the incumbent President, who will be Joe Biden in 26 days.
What Biden will do with this power, I can’t tell you. But it will be up to him. And there is quite a lot that remained hidden during Trump’s presidency that can now be uncovered.
People talk about whether people should be prosecuted or not. That’s a premature discussion, both practically and ethically. The first thing is to find out what happened. As I’ve argued, that’s really the most important thing. I think it should be prioritized over punishment, to the extent the two things come into conflict. But if punishment is a priority, first you need to find out what happened. Once you do, much will be clarified about where to go from there.
