On January 20, 2017, Donald Trump stood at the Capitol and swore an oath that he would preserve, protect and defend the Constitution of the United States. On January 6, 2021, Donald Trump watched silently as a mob broke into the very same Capitol, threatened to capture and kill members of Congress and the Vice President, and attempted to deny — or even reverse — the certification and legal confirmation of Joe Biden’s victory in the 2020 elections. In January 2017, Donald Trump made a promise to the country; in January 2021, he broke it.
Just days after the attack on the Capitol, Donald Trump was impeached for inciting an insurrection by a bipartisan majority in the House of Representatives. Just weeks later, a bipartisan majority in the Senate concurred that Donald Trump was guilty of inciting an insurrection, 57 to 43. While this majority was not enough to convict Donald Trump under the standards of impeachment, it was the first time since the ratification of the 14th Amendment that majorities in both chambers of Congress found a federal officer guilty of insurrection.
This unambiguous guilt and responsibility for the events of January 6, 2021, an infamous day in our history, has been pushed aside by so many in power. Elected Republicans, the conservative majority on the Supreme Court, prosecutors and judges and an easily swayed political media have all chosen to believe that an election victory has wiped away Donald Trump’s culpability for these sins against the republic. In return, some elected Democrats have offered their own misguided notion of healing: a pardon.
Both Rep. Jim Clyburn (D-SC) and Senator John Fetterman (D-PA) have suggested that President Biden — whose legitimacy was threatened at the hands of a mob — pardon Donald Trump, up to and including expunging his legal responsibility for any crimes committed in the run up and execution of what happened on January 6, 2021. This is — to put it mildly — a catastrophically terrible idea. A pardon makes a mockery of the efforts to hold Trump accountable, further delegitimizes Democratic authority and representation in Congress, suggests that crimes are acceptable if enough of the public can be convinced that it’s okay to break the law, and undermines the Constitution itself as a foundational document. It is, in every way, adding insult to injury after a bruising election season.
But beyond all of the very terrible things that a presidential pardon of Donald Trump represents, it gives away something that Trump should, by all rights, have to earn: forgiveness.
Whether one aligns or diverges with Trump’s political stances, it is undeniable that January 6, 2021 represented a tremendous breach of trust between the Presidency, Congress, and the people who are supposed to rely on the government we enable. To allow Donald Trump to take the oath of office again without a reckoning over his betrayal wouldn’t just be political malpractice, but against the text of the Constitution itself.
The 14th Amendment, Section 3 is clear:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Only Congress can provide true absolution for what happened almost four years ago at the Capitol, and only a supermajority of both chambers can close the breach. This wouldn’t be a partisan or political exercise; it would mean putting forth an amnesty bill to consider whether Donald Trump has demonstrated that he can be trusted to respect the limits, checks, and balances of the Constitution that he has so thoroughly disrespected.
Like the amnesty bills offered and passed after the ratification of the 14th Amendment in July 1868, the legislation for Trump would require acknowledgment of the harms caused by the attack on the Capitol, a true and honest apology for the damage done to the people, the building, and the institutions it represents, and a promise — via a new and additional oath — to never break these boundaries again.
Most importantly, the margins for amnesty to succeed will require true bipartisanship. Trump could not have access to legitimacy without putting in work to do something he has never demonstrated the capacity for: lobbying Democrats. He would have to reach across the aisle and actually show that he has learned from his mistakes. Republicans cannot, by themselves, get him over the finish line. Democrats — and Democrats alone — would have to determine whether he has done enough to deserve mercy.
Of course, Trump has shown during this transition that he is utterly incapable of backing down or acknowledging mistakes. He’s unlikely to do anything other than threaten Democrats or try to get the Supreme Court to intervene on his behalf should amnesty legislation make it from the Senate Judiciary Committee to the floor. But in every act of defiance against Democrats, Trump would demonstrate again why he cannot and should not receive the grace of amnesty. And in his refusal to acknowledge the oath that he broke on January 6, 2021, he will prevent his own legitimacy regardless of the one he will take on January 20, 2025.
Amnesty, not a pardon, is the only true forgiveness Trump deserves. A pardon gives too much away; it is too unilateral, too cleansing. A pardon would wash away all of Trump’s responsibility and culpability and ask for nothing in return. In contrast, Congressional amnesty via Section 3 of the 14th Amendment demands sacrifice and humility. It is a process that requires convincing a supermajority of the people’s representatives in both chambers that Donald Trump has learned his lesson. It needs a recommitment to the Constitution and its limits. It is the ultimate act of restitution, met with the ultimate form of grace our government can give.
Without amnesty, there can be no trust, no hope in the power of the people and the rules we swore to live by. With it, we will know that the vow Donald Trump will take — and the Constitution it protects — is still the law of the land.
