Who gains from a presidential pardon?

On targets of Trump’s promised retribution.

There is more than one way to think about the incoming Trump administration’s talk of retribution against political enemies.

President Biden’s administration is reportedly considering preemptive pardons for apparent targets of revenge, as Biden pardoned his son Hunter.

Some of Trump’s critics say something else: that they did nothing wrong and any effort to turn the justice system against them would be illegal and unconstitutional.

Consider the case of Liz Cheney. On NBC, President-elect Trump talked of investigating Cheney and other members of the January 6 committee, which gathered and publicized evidence of Trump’s bid to overturn his 2020 election defeat. From NBC:

Members of the House committee that examined the Jan. 6 attack on the U.S. Capitol were “political thugs and, you know, creeps,” committing offenses in going about their work, he said.

“For what they did, honestly, they should go to jail,” Trump said.

Asked if he would direct the Justice Department and FBI to punish them, Trump said, “No, not at all. I think that they’ll have to look at that, but I’m not going to — I’m going to focus on drill, baby, drill” — a reference to tapping more oil supplies.

Trump’s statement was open to interpretation and left his options open. It sounded like he expected his aides to act without being told (“they’ll have to look at that”) but not how far they would push it.

In response, Cheney dismissed Trump’s claim that the lawmakers had somehow destroyed evidence; the committee published its evidence. “There is no conceivably appropriate factual or constitutional basis for what Donald Trump is suggesting — a Justice Department investigation of the work of a congressional committee — and any lawyer who attempts to pursue that course would quickly find themselves engaged in sanctionable conduct,” Cheney said in a statement.

By referring to “sanctionable conduct,”Cheney suggested it was Justice Department lawyers, not she, who would be in trouble for abusing the legal system. Some lawyers—Rudy Giuliani among them—lost their law licenses for joining Trump’s bid to overturn his election defeat.

Cheney didn’t comment on whether she wants a pardon. But in the absence of one, she would effectively be daring the new president to spend his time and political capital breaking the law.

This would challenge the new administration to do its job, which is to “faithfully execute the laws,” according to the Constitution. Any unlawful prosecution would challenge the courts to do their job, regardless of which presidents appointed them. And it would challenge the Senate, which holds the power of advise and consent regarding Trump’s nominees, to do their job. They can decide if they are comfortable with Kash Patel, Trump’s nominee to run the FBI, or Pam Bondi, Trump’s second nominee for attorney general. And they can question them under oath about their intentions.

Needless to say, lawmakers could look the other way for a president of their party, but they would do so knowing that FBI agents might take an interest in them next.

An unpardoned Liz Cheney demands that the president, the Justice Department, Congress and the courts all fill their constitutional roles. A pardoned Liz Cheney frees them of that responsibility.

Trump is in a hurry to cement his legacy. Less than two years remain before a midterm election, when the party in power is nearly always on the defensive. He talks of a dramatic transformation of the government and the economy. It would be his decision whether to spend his time instead on investigations and prosecutions, and his aides’ decision whether they want to participate. It would be his decision whether he thinks the cases would be legally or politically successful. When the Justice Department prosecuted him, the effort turned out to be neither.