Should Governor Hochul Pardon Donald Trump?

Gerard N. Magliocca

Three years ago, I wrote a post here entitled "Will Andrew Cuomo Have to Pardon Donald Trump?" Of course, New York now has a different Governor, but the question remains. Here is part of what I said then:

What happens if Donald Trump is prosecuted in New York next year (or five years from now) when he is no longer President?

Go and read President Ford's speech defending his pardon of Richard Nixon. Here is a key section: 

[A] former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society. During this long period of delay and potential litigation, ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.

Of course, no President can pardon someone for state criminal charges. Only that state's Governor can do that.

Governor Hochul is not in the same position as President Ford was in 1974. One of Ford's concerns was that a trial of Richard Nixon would make it much harder for him to serve as an effective President. The Trump case, by contrast, will have no impact on Governor Hochul's effectiveness. The question for her is simply whether a pardon is in the best interests of the country.

One way to think about that question is through the longstanding tradition (in Britain and the United States) of giving someone a pardon or commutation after a conviction. The conviction vindicates the rule of law, but the pardon or commutation recognizes that there are other important interests at stake. In this case, though, you might say that the trial itself is the problem that a pardon should address.

I don't know what the right answer is here, but Governor Hochul and (perhaps) Governor Kemp may face this dilemma soon