Should Biden Pardon Trump’s Critics? Former G.W. Bush Official Makes the Case

BIANNA GOLODRYGA, ANCHOR: Well, when January 6th shook America, former Homeland Security official Paul Rosenzweig spoke to Christiane about the, quote, “authoritarian impulse” that Donald Trump unleashed and its consequences. Well, now, nearly four years on, Trump is returning to the White House as the next president and has vowed to go after political rivals. This could include those who have spoken out against him. And a piece for The Atlantic, Rosenzweig argues that President Biden has an obligation to protect them from Trump’s revenge. And he joins Michel Martin to discuss his concerns.

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MICHEL MARTIN, CONTRIBUTOR: Thanks, Bianna. Paul Rosenzweig, thank you so much for joining us.

PAUL ROSENZWEIG, FORMER DEPUTY ASSISTANT SECRETARY, HOMELAND SECURITY DEPARTMENT: Thanks for having me.

MARTIN: So, let’s cut to the chase. In your Atlantic piece, you say that Biden — President Biden has unfettered power to issue pardons and he should use it liberally, no pun intended. Why do you say that?

ROSENZWEIG: Well, at a narrow tactical level, the reason is simple. There are a large number of people who opposed President Trump’s re-election against whom the president-elect has threatened legal vengeance. He has threatened to unleash the Department of Justice to investigate and prosecute his enemies. He’s accused some of them of treason. He’s accused many others of them of breaking the law, and even though those sorts of prosecutions are unlikely, in the long run, to be successful in the courts, the expense and pressure of being under investigation is itself a significant cost. And so, President Biden ought to consider granting pardons liberally to those of his supporters who are in the crosshairs of Donald Trump’s vengeance campaign.

MARTIN: You said he should pardon all of Trump’s most prominent critics. You’re talking about people like Liz Cheney, the former GOP congresswoman, military critics like the former chairman of the Joint Chiefs, General Milley, his former chief of staff, John Kelly, writers like Bill Kristol. Do you have a number in mind of how many people you think that he should consider?

ROSENZWEIG: I don’t think it’s a huge number. You’ve named some of the most prominent Trump critics who he has explicitly threatened. I would probably limit it to that. I mean, he’s never threatened me. So, I don’t think I need a pardon, for example. But I do think that he has expressed a willingness to use the legal system against not just Republicans, but even some of his Democratic opponents, like Nancy Pelosi and Adam Schiff, whom he has called criminals and has threatened to bring to justice. And his — obviously, his nomination of Matt Gaetz as the enforcer in chief attorney general kind of gives one a sense that he means it most seriously.

MARTIN: Some people who’ve analyzed him say that people in the legacy media and people who are kind of outside of his realm say they take him literally but not seriously. But your argument is that this should be taken both seriously and literally.

ROSENZWEIG: Well, I think that Donald Trump’s history over the last eight years gives us evidence of that. I mean, the same people who said, don’t take him seriously, said that about his calls on January 6th for wild behavior. And yet, it became both literal and serious and an assault on the Capitol. He said — yes, when he said, I’m going to give RFK Jr. carte blanche over the healthcare of the United States, people said, oh, that’s not serious. It’s not literal. And yet, he’s announced his intention to nominate RFK Jr. to be head of HHS. He’s announced his intention to nominate a number of cabinet members, none of whom should be taken seriously, except that they will seriously have these responsibilities. Matt Gaetz has said that he intends to figuratively break heads, I think was the quote, at the Department of Justice. That’s — you know, at some point, you have to accept that what Trump says he means is what he actually intends to do.

MARTIN: You say the Democrats, in particular, have treated Trump as, quote, “an aberration and not a phenomenon.” Can you explain what you mean by this and why you think the shift in thinking needs to take place?

ROSENZWEIG: Well, I am of the view that Trump’s critics, and I include myself amongst them, have made a strategic error. When he first came on the scene, we thought he was just an aberration. That is a Black Swan phenomenon that would come and then pass away. And if you think that’s what somebody is or some phenomena is, then you don’t change your behavior. You think this too shall pass and we should maintain standards, maintain our fidelity to norms of behavior. This is what Michelle Obama meant when she said, when they go low, we go high. You know, they’re going down in the mud, we’re going to stay up here and treat America like America. But what has become clear over the last eight years, to me at least, and most saliently, of course, with Trump’s re-election earlier this month, is that he is not an aberration. He’s a phenomenon. He’s a movement. And his movement engages in norm breaking behavior. You know, nominating people manifestly unqualified to lead the government, not because he really wants them to lead the government, but because he wants them to break the government. And if you think that’s who he is, if you think that’s what Trump is about, then you have to change how you respond in kind. You have to start using all of your counter levers of power as aggressively as you reasonably can within the bounds of law, even if it is not normal behavior as we would have thought of it 10 years ago.

MARTIN: Is there a moment that made you think that way, that you felt that bolder measures are needed to counteract this phenomenon, that made you think, OK, this is it?

ROSENZWEIG: Well, for me it was January 6th, right? Before that, I was of the view, for example, that it was really a bad idea prudentially to prosecute a former president. That even though you could do so, we shouldn’t because we didn’t want to become like other countries where every turn of the political wheel resulted in the prosecution of the former office holder. January 6th made it clear to me, or — and I think to much of the country, though apparently not a majority, that Donald Trump was intent upon breaking the system, as much as he was intent upon about upholding it. And that if the system was going to sustain itself, it had to respond in kind. And so, for me, that moment made me change that particular aspect of my belief and support the subsequent prosecutions of Trump, particularly the ones for violating — for the actions on January 6th. And, you know, for other people, it might be different times, but I think, for example, a number of my friends see his nomination of Tulsi Gabbard, a Russian apologist, if you will, to the Intelligence Community as one of those breaking the paradigm moments that calls for breaking your own response paradigm.

MARTIN: You’ve also written that it has become painfully self-evident that Democratic self-restraint is a form of unilateral disarmament. Can you say more about why you think this self-restraint has hindered Democrats and others who find Trump’s behavior objectionable, not just objectionable, but dangerous?

ROSENZWEIG: Well, I mean, consider the arc of the Biden presidency. When President Biden took office, he had two paths he could take. One was the normal path of legislating around traditional democratic priorities, expanding health care, inflation reduction acts, you know, the bipartisan infrastructure act, or he could have treated this as a critical moment in which the legislative priorities should have been — could have been strengthening the electoral guardrails against Trump, limiting the possibilities for an executive to exercise unilateral power. He chose the former of those paths, as did the Democratic majority for the first two years of his presidency. And that was, I think, in large part because they couldn’t bring themselves to believe, and again, to be fair, nor could I, they couldn’t bring themselves to believe that the American people would return to the aberration of Donald Trump and make him a phenomenon. So, they self-edited. They didn’t do things that would have strengthened their ability to resist Trumpian excess, things like limiting executive powers, things like insulating the military against what Trump has now proposed, which is a wholesale firing of disloyal generals. Again, you know, adopting law proposals to bring in two more states that would have given them four more Democratic senators. All those would have been extreme things that we would have thought unnecessary up until a few years ago. But now, in the face of Donald Trump’s promises, seem palpably essential.

MARTIN: You said the Democrats need to consider unprecedented legal tactics at this point. So, the train — you know, so, the train has left the station when it comes to some of the things that they could have done when the Democrats had not only the White House, but they also, you know, had the Senate. They don’t have any of those things now. So, now what should they do? And when you say responding in kind, you know, what does that mean?

ROSENZWEIG: Well, there’s a host of things ranging from large to small. A small example. I think that President Biden should consider not attending Donald Trump’s inauguration. Because doing so sends a symbolic message of normalizing Trump, and he shouldn’t be normalized. That’s a small thing. It’s a norm breaker. It’s not a huge lift. The Biden administration, in the time that is left to, it should consider every — doing everything it possibly can to strengthen the Ukrainian hand, because we know that the first thing that Trump will do when he takes office is sell that poor country out to Vladimir Putin. Going forward, you know, I think that some of the things that we are already starting to see, like with Governor Newsom and Governor Pritzker in California and Illinois of strengthening state laws as resistors to federal activity, that’s not something that we would’ve ever thought should be done, that a state should pass laws resisting the federal government and trying to undermine federal authority. But now it seems a reasonable step to take in order to erect as many barriers as possible to, for example Trump’s threat to use the National Guard to deport illegal immigrants. State law, for example, prohibiting any state’s National Guard from being federalized for that purpose would be an extreme step, but one that may — there will be considered necessary.

MARTIN: What do you say to people who say that, look, if the Democrats and other people who criticize Donald Trump engage in that conduct, then our civic space is further corrupted? What do you say to that?

ROSENZWEIG: I say they’re right. And I was with them, you know, at the start. The very first article I ever wrote about Donald Trump was entitled, “Defending Norms by Defending Norms.” And it was arguing for the style of thinking that I characterized as the original strategic error. And I say that they’re right, that if we transgress norms on our side — on my side of the argument, the world is — we’re going to coarsen the debate. But it strikes me as highly likely that Donald Trump’s project is to literally break America’s governance. He wants to break the Senate’s advice and consent. But if the Senate doesn’t fight back, as much and as strongly as it can, it will lose its power, and we’ll be in a place in two years where it’s just a rubber stamp. It seems to me that it’s a risky move. I admit that completely. But it seems almost essential at this point, because if we don’t do it, you know, the House will burn down.

MARTIN: You’ve pointed to — going back to the issue of pardons, historical precedents, like Ford’s pardon of Nixon. We talked about that. And Carter’s pardon of people who avoided the draft. There are those who see it as kind of a gesture toward national reconciliation. I just wonder if you see by — your argument to the Biden administration that they should embrace this, do you see it in that realm or do you see it as something else?

ROSENZWEIG: Well, I see it partially in that realm. I mean, the idea of pardons to bring national peace has a long history. Washington — George Washington pardoned the Whiskey rebels in the Whiskey Rebellion. In the aftermath of the Civil War, Andrew Johnson pardoned the Confederate soldiers, not the leadership, but the soldiers. He even pardoned Samuel Mudd, who had given — who had treated John Wilkes Booth after Booth assassinated Lincoln. And then, of course, you mentioned the Carter pardons after the Vietnam War and Ford’s pardon. So, to some degree, I think it — this is an effort to make peace. But to another degree, I think it’s slightly different. It’s the pardon to do justice in response to unjust actions by the government, by the prosecuting authorities, right? We have a history of that as well. For example, Jack Johnson, the African American boxer was prosecuted under the Mann Act for crossing state lines with his wife, who happened to be white. We pardoned him, to do justice to him individually. This will also partake, I think, if Biden does what I recommend, which I’m guessing he won’t do, but we’ll see. But if he does what I do, it will have that aspect of doing justice by preventing Liz Cheney, Mark Miley from William Kristol, George Conway, the whole — Adam Schiff, Nancy Pelosi from being improperly and unjustly targeted with the full might of the federal government.

MARTIN: You don’t really think he’s going to do it, but you have said, look, this is the time — this is not the time to hold back. This is the time to take bold action. I’m just wondering if you feel at all surprised by your own point of view on this. I mean, you were speaking with me and all, you’re sort of appropriately lawyerly restraint, but what you are suggesting is, in fact, a very radical thing for at least establishment Washington to consider. And I just wonder if there’s any part of you that’s surprised that you think that.

ROSENZWEIG: Oh, all of it. All of it. You know, I am not only a Washington lawyer and a traditional lawyer, I am a traditional conservative Washington lawyer. I worked for President George W. Bush. as a political appointee in the Department of Homeland Security. In 1983, I joined the Federalist Society, the — you know, Society of Conservative Lawyers. This is not who I ever thought I would be. It is not who I have considered myself to be still. But at the same time, it seems to me impossible not to recognize that the facts on the ground has changed. We’re not arguing about, you know, what the right tax policy is, or whether or not the EPA over regulates benzene emissions, or, you know, anything like that anymore. What is clear to me is — well, you know, frankly, the same thing that became clear to people like me like Liz Cheney, that Donald Trump is transgressive in his nature. He is a mold breaker. And it’s irresponsible not to see him as what he truly is, an existential threat to the very foundations of democracy. Now, people will say that’s extreme, and I hope, like heck, that I am overstating it, overstating the threat. But I think that the course of the last eight years says not. And the course of the last two weeks, super says not, you know, as Trump begins to roll out his initiatives for the next administration. And with that in mind, if you think that democracy is important, you have to stand up and defend it. You can’t obey in advance. You have to stand up and stand out.

MARTIN: Paul Rosenzweig, thank you so much for speaking with us.

ROSENZWEIG: Thank you very much for having me on.