When Donald Trump has probed the American political system for weaknesses that would allow him to subvert its democratic character, the tool he has returned to again and again is the presidential pardon. The pardon is the ultimate constitutional wormhole. It allows the chief executive to solicit almost any crime, a power which, in turn, destroys whatever protections are offered by the rest of the framework designed by the Founders to restrain the office.
Trump returned to that power at his rally last night. “If I run and I win, we will treat those people from January 6 fairly,” he said at a Texas rally. “We will treat them fairly, and if it requires pardons, we will give them pardons because they are being treated so unfairly.”
During his term in office, Trump’s polling was quickly (and we now realize, inaccurately) dismal. Republican elites expected he would lose, the party would undergo a course correction, and future success would come to those Republicans who had the patience to keep their distance from his grossest excesses.
The January 6 insurrection was led by a militant radical vanguard acting on a plan that aligned closely with Trump’s own scheme to secure an unelected second term. The plot failed because it lacked broader party support: On that day, even the likes of Donald Trump Jr. and Sean Hannity blanched at the spectacle of a violent seizure of power.
But Trump himself never flinched. Instead he calculated, correctly, that he could force the party to move toward his own position. In the months that followed the insurrection, Republicans drew and then erased a series of red lines. First they would demand Trump’s resignation. When he refused to resign, they vowed to impeach him; they decided impeachment was unnecessary because Trump would vanish on his own; when he refused to vanish, they promised to support an investigation into the attack; then they decided to oppose the investigation as well.
These decisions have set off a vicious cycle within the party. As elite Republican resistance to Trump’s lies about the election disintegrated, the party’s rank and file came to support them, which in turn has made it all the more difficult for any Republican official to resist any element of his alt-narrative.
The party’s moving stance on the insurrection can be observed on both its ends. On the right wing, Trump’s loyalists have turned the insurrectionists into martyrs and developed new conspiracy theories to deny the crime. On its left side (“left” being defined here as simply demanding adherence to written laws), critics of the insurrection like Adam Kinzinger, Anthony Gonzales, and Liz Cheney are being hunted to extinction.
Republican officials have learned that defying Trump is not an investment in their future, but a near-guarantee of their own defeat. This context will shape the choices Trump’s loyalists will make during and after his next campaign, should he run.
As shambolic as Trump’s efforts to undermine the election may have been, the pardon power is a proven weapon to undermine the rule of law. He dangled and then issued pardons to Paul Manafort and Roger Stone, his campaign back channels to, respectively, the country that hacked his opponents’ emails and the organ that leaked them. Because Manafort and Stone both refused to cooperate with investigators, the ultimate extent of their culpability remains unprovable. As a result, however, the entire Republican Party and even many outside observers concluded he has therefore been proven innocent.
Just consider the matter from Trump’s perspective. A few years ago, his own lawyers were advising him not to pardon Manafort. Such an act was considered potentially impeachable, and at minimum would make him look extremely guilty. Instead, to most of the world, it made him look innocent. Trump has little reason to see any danger of backlash by using this tool to reward his allies. And he has made clear that he views all the insurrectionists — including Ashli Babbitt, who tried to smash through one of the last lines of defense where Congress was hiding — as allies.
The danger of his latest promise of pardons is not retrospective, it is prospective. The MAGA movement understands they have Trump’s full permission to secure his victory by any means necessary. Should he win, all their crimes will be pardoned. The only legal risk they face will come if they fail.