By Martha Minow
CAMBRIDGE – As someone who often writes about law and forgiveness, I have been receiving many queries lately. Should President-elect Joe Biden pardon President Donald Trump? Should pandemic-era debts be forgiven? Should the United States establish a truth and reconciliation commission to heal national divisions?
These questions do not have obvious answers, especially when such difficult times still lie ahead. But wrestling with them may yield valuable guidance for the near term and beyond.
Let’s start with the basics: In addition to surging COVID-19 infections and the pandemic’s attendant economic hardships, the US is seething with resentment and division. Donald Trump, the lame-duck president, openly speculates about pardoning himself, and has raised vast sums of money on the false claim that Biden owes his victory to widespread electoral fraud. Already, people have sent the Trump campaign more than $200 million to fund his effort to overturn the election result.
And yet, neither 50-plus lawsuits nor investigations by Trump’s own Department of Justice have produced evidence to challenge Biden’s triumph. The responses from judges hearing these cases – even those who were appointed by Trump – have been mostly scathing. At the same time, ordinary Americans, including many who helped to administer the November election, are growing increasingly frightened by threats of violence.
Managing a peaceful transfer of power is only the start of the challenges facing the US. Although this summer’s protests against police violence – ignited by the deaths of Breonna Taylor, George Floyd, and many other African-Americans – have quieted with the arrival of winter, the demands for justice and reform have grown more persistent. Meanwhile, politicians on the right have been appealing even more openly to white resentment, stoking fears about race and crime.
These cynical politicians are right about one thing: Americans are bitterly divided. But this fact raises a difficult question. How can we talk about forgiveness and healing when we don’t know who should be doing the forgiving, or what others should be forgiven for? We cannot agree about what is wrong, or who did what. We don’t even agree about who counts as “we.”
Indeed, the belief that we are divided is perhaps one of the few things that Americans still have in common. We all know in our hearts that we are on the right side, and that those on the other side are wrong, and we resent them for it. Nelson Mandela, who waged a lifelong struggle against apartheid and oversaw its peaceful end, knew better. “Resentment,” he said, “is like drinking a poison and then hoping it will kill your enemies.”
Whatever happens next in the US will depend on which priority wins out in the coming months. While many are issuing righteous demands for justice, others would prefer to start mending societal fissures, while still others want to focus on righting the ship of state.
These options cannot all be pursued at the same time. Should the Biden administration investigate Trump and, if warranted, prosecute him for potential federal crimes? Should the country – or local communities – pursue a South-Africa-style truth-and-reconciliation process to hear grievances and responses? Or should the events of the recent past be put aside so that we can focus squarely on managing the pandemic, delivering vaccines, and addressing economic dislocation – not to mention longer-term challenges such as criminal-justice reform and climate change?
To simplify the choice before us, it should now be clear that resolving the immediate health and economic crisis comes first. In the meantime, there are at least two things that should not happen.
First, Trump should not pardon himself. The US Constitution’s presidential pardon power is notably broad, but it makes an explicit exception for “cases of impeachment,” and it applies to only federal (not state or local) crimes. The Constitution also obliges the president to “take Care that the Laws be faithfully executed,” which is hardly compatible with the legal immunity that a self-pardon would entail.
For hundreds of years, it has been an axiom of justice that “no man should be judge in his own case” (“nemo judex in causa sua”). When President Richard Nixon explored the possibility of pardoning himself over the Watergate scandal, his own Justice Department opined that the presidential pardon power does not extend that far – a position that has not been revised since.
Most important, a self-pardon would vitiate the rule of law, understood as the commitment to restrict the arbitrary exercise of power with well-defined and established rules. The rule of law calls for laws to be promulgated publicly, enforced equally, and judged independently. If Trump were to issue a self-pardon, the distrust that has been eroding US institutions would surge to new heights.
The second thing that should not happen is a further outpouring of scorn toward others. This will not be easy. Whatever one’s political beliefs, we are all capable of contempt for other viewpoints. But insisting on the exclusive rightness of one’s own views is antithetical to freedom and can lead to suppression and violence.
To be sure, allowing for the possibility that I could be wrong may feel like an unthinkable sacrifice of freedom. It may seem like too much to ask in the face of so much that I see as clearly wrong. But the US federal judge and legal philosopher Learned Hand put it well when he argued in 1944 that liberty is not “freedom to do as one likes,” for that leads straight to society’s overthrow. Instead, he explained:
“The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded.”
If Americans genuinely care about liberty, they will have to disarm enough to disagree with civility, if not yet to render justice.
Martha Minow, University Professor at Harvard University, is a former dean of Harvard Law School.