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Student Loan Forgiveness 2: Fairness

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While people will be angry if student loans are cancelled and might believe this anger proves this would be unfair, this sort of “reasoning” has it backwards. While people should be angry at unfairness, anger does not prove that something is unfair. People can, obviously enough, be angry about things that are fair and even things that are unfair in ways advantageous to them—yet not as unfair in their favor as they might wish. As such, as was discussed in the previous essay, it is no surprise that arguments from anger against student loan cancellation are flawed.

People also use the concepts of fair and unfair when engaged in moral masking. This is a rhetorical technique in which a person uses moral language to create the appearance that they are making moral claims or arguments when they are not. In most cases, those using this technique are concealing their own self-interest, desires, or feelings about the matter behind a mask of morality. The rhetorical advantage is that the person seems to have more laudable motivations or reasons than simple expressions of their wants and feelings. To illustrate saying “I would resent it if other people had their student loans cancelled” is probably less persuasive than saying “student loan cancellation would be unfair.”

Being a professional philosopher, I would be remiss if I did not mention that there are philosophical theories in which moral claims are expressions of emotions or preferences. While this oversimplifies things, on such views saying, “student loan cancellation is unfair” would be means something like “I don’t like student loan cancellation” or even “student loan cancellation yuck!” Crudely put, there would be nothing more to ethics than these feelings or preferences. Fortunately, even if these views of ethics are correct, we could still have a meaningful debate about whether student loan forgiveness is fair in terms of considering the quality of the arguments advanced in favor of the various positions. There are also some sophisticated theories of emotion or preference-based ethics that do allow for meaningful moral debate about which feelings or preferences are more apt. But let us set aside these rather theoretical meta-ethical concerns and get into the debate over fairness and student loan cancellation.

While people tend to think they know what is fair (and hence unfair), they usually do not even have a well-considered concept of fairness. So, a sensible place to begin is with some discussion of the notion of fairness. Perhaps the simplest version of fairness is that everyone gets the same treatment. This view does have considerable appeal and is one I use when teaching. For example, students will sometimes ask for individual extra credit. My response is always that allowing this would be unfair to the other students. While this oversimplifies things, a fair class treats the students the same.

On this view of fairness, student loan cancellation would clearly be unfair. Those who happened to have unpaid student loans right now would receive a benefit that no one else would. Those who paid off their loans, especially those who did so soon before the forgiveness, would be denied this government largesse because they were responsible and probably made sacrifices to repay their loans. Many people who never took out student loans could contend that the debts they have are just as deserving of cancellation as student loans. Since everyone is not getting the same treatment, student loan cancellation is wrong and should not be done. This can be presented as an argument from fairness:

 

Premise 1: Government student loan debt cancellation would not treat people the same.

Premise 2: The government not treating people the same is unfair.

Premise 3: Treating people unfairly is wrong.

Conclusion: Student loan debt cancellation is wrong.

 

While this is certainly a viable moral position, it runs directly into the fact that the government routinely treats people differently. For example, business owners and corporations receive subsidies (agricultural subsidies are a common example) that other people do not receive. As another example, the wealthy and corporations enjoy the advantages of tax laws and policies that allow some of them to pay no taxes despite being greatly benefited by the state.  As such, if someone uses this sort of fairness argument against student loan debt cancellation, then they would be inconsistent if they failed to apply it to other cases in which the government does not treat people the same—which is most cases.

There are two main approaches to having the government treat people the same. One is for the government not to do things—this would treat people the same because the government would not be doing anything for anyone. For example, not providing any form of relief or benefits (such as student loan cancellation or tax cuts) would treat people the same. Taking this to the extreme would result in anarchism (the elimination of the coercive state) or a return to the state of nature (the possible fictional state without any governments). While there are those who advocate anarchism and even those who favor the state of nature, these would be a long way to go just to avoid cancelling student loan debt.

The other approach is for the government to do things but ensure that each person receives the same treatment. That is, each person would get the same services and benefits from the state. For example, if one person received subsidies, then everyone would. If one person got a 10% tax cut, then everyone would. If one person had $50,000 in debt cancelled, then everyone would (perhaps getting a voucher for future debt). Taken to the extreme, this would resemble a common straw-person version of socialism in which everyone is treated exactly the same by the state.  While this might have some initial appeal, some reflection shows that it would be absurd—everyone does not have the same needs and wants, so treating everyone the same would hardly be optimal. Although it could be argued that for most of us it would be better than it is now if we were all treated like the wealthy, the powerful and the corporations by the state.

It would seem that taking fairness as treating people the same in order to argue that cancelling student loan debt is unfair would lead to some problems: one would seem to be committed to either the state treating everyone the same by doing nothing (that is, no more state) or by having the state treat everyone the same—which would seem absurd (though it could be a huge upgrade for most of us). As such, we need to consider another conception of fairness.

 

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Student Loan Forgiveness 1: The Anger Argument Against It

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Long ago, when I was a student, people often took out loans to pay for college. While these loans could be substantial, most found them manageable. Over the years, the cost of college has increased dramatically, and student loans have become increasingly burdensome. There is also the issue of predatorial for-profit schools—which is an issue in itself. Because of this debt burden, there have been proposals to address the student loan problem. Some have even proposed forgiving or cancelling student loans. This proposal has generated some hostile responses, although Roxane Gay has advanced some well-reasoned arguments in its defense. I paid my loans long ago, so my concern with this matter is a matter of ethics rather than pure self-interest. In this essay and those to follow I will consider the ethics of student loan forgiveness and provide some logical assessment of various relevant arguments.

As Gay noted in the New York Times, Damon Linker tweeted that “I think Dems are wildly underestimating the intensity of anger college loan cancellation is going to provoke. Those with college debt will be thrilled, of course. But lots and lots of people who didn’t go to college or who worked to pay off their debts? Gonna be bad.” I think Linker is right. Even if there is not genuine grassroots anger at student loan forgiveness, many Republicans and the right-wing media will endeavor to generate rage against this notion. But is there any merit to the anger argument?

Put a bit simply, the anger argument against student loan forgiveness would be that because federal student loan forgiveness would make many people angry, then it would be incorrect to do it. This is obviously the appeal to anger fallacy; a fallacy in which anger is substituted for evidence/reasons when making an argument. Formally, the fallacy looks like this:

 

Premise 1: X would make people angry.

Conclusion: X is wrong or incorrect.

 

This is bad logic because the fact that something makes people angry has no connection to whether it is true or correct. People can, obviously enough, be angry about claims that are true and enraged about things that are good. They can, of course, also be angry about claims that are false and enraged about things that are evil. But the anger people feel does not prove (or disprove) falseness or wrongness. A silly example illustrates this:

 

Premise 1: The triangle haters get angry when it is claimed that triangles have three sides.

Conclusion: Triangles do not have three sides.

 

Less silly examples are as follows:

 

Premise 1: Some people got angry about the American colonies rebelling.

Conclusion: The colonies were wrong to rebel.

 

Premise 1: Some people are angry about evolution.

Conclusion: Evolution does not occur.

 

Premise 1: Atheists would be angry if God exists.

Conclusion: God does not exist.

 

As these examples show, drawing a conclusion about the truth of a claim or the morality of something from people being angry is bad reasoning. As such, the anger people might feel about student loan forgiveness is irrelevant to whether it is the right thing to do. But perhaps there is a way to make a non-fallacious argument from anger. One way to do this is to switch from concerns about truth and morality to pragmatism. That is, perhaps it could be argued that the anger of some people would provide a practical reason to not have student loan forgiveness.

While this greatly oversimplifies things, pragmatic arguments are aimed at establishing what would be the most prudent or advantageous thing. This is essentially an argument from consequences. The idea is that the correct choice is the one that generates the best consequences for those who matter. While people tend to think the correct choice is the one they think is best for them, working out an appeal to consequences requires arguing to establish who matters and how to assess the value of the consequences. Laying aside all these concerns, pragmatic arguments from anger can easily be made.

To illustrate, imagine that a politician sees that the polls for their district show that most voters are angry about student loan forgiveness and this anger is strong enough to influence their vote. From a pragmatic standpoint, the anger of their voters does give them a practical reason to oppose forgiveness: if they want to increase their chances of being re-elected, then they should oppose it. While this could be for selfish reasons (the politician might want to stay in office to keep cashing in on that sweet insider trading) it could also be for benevolent reasons (the politician might want to stay in office to try to improve the lives of their constituents). From a purely pragmatic standpoint responding to the anger could be the prudent or advantageous thing to do. While these pragmatic reasons can be strong motivating factors, they obviously still do not prove (or disprove) anything about the rightness or wrongness of student loan forgiveness. But there is still an option for using anger in a non-fallacious moral argument.

Utilitarianism, a view argued for by the likes of Bentham and Mill, is the moral view that the morality of an action depends on the consequences for those who are morally relevant. Put in simple terms, an action that creates more good for those who count would be better than an action that creates less good (or causes harm). Since utilitarian arguments deal with consequences, it is often possible to re-tool a pragmatic consequentialist argument into a moral argument. Here is how it could be done.

Suppose that there is good reason to believe that Linker is right and the anger at loan cancellation “gonna be bad.” If the harms generated by this anger outweighs the benefit of the loan cancellation when considering all Americans, then the loan cancellation would be wrong. Thus, it would seem that the right sort of appeal to anger can work. But there is an obvious concern about the role of the anger in generating the harms.

If cancelling the loans itself resulted in greater harms than not doing so (such as pulling money from critical social programs), then it would seem right to not cancel them. But the anger argument rests on how people respond to the cancellation, not the harm done by the cancelling itself. That is, the harms in question would arise because of what people do because they are angry in response to the cancellation. This leads to an old ethical debate about how to factor in responses when doing the utilitarian calculation. On the one hand, it does seem reasonable to consider how people will respond when sorting out consequences. On the other hand, there is the obvious problem that people could force a change in the moral calculation by responding in ways that would create harms. That is, they could “rig” the moral argument by threatening to respond with terrible actions.

To use a fictional example, imagine a debate over raising minimum wage in which businesses said they would hire criminals and mercenaries to kill all their minimum wage employees, their pets, and their loved ones if the wage was increased. In terms of simple consequences, this would make increasing the minimum wage extremely harmful—so it would be wrong to increase it. As an alternative fictional example, imagine the much feared radical leftists threating to kill business owners, their pets, and their loved ones if the wage is not increased. This would make not increasing it wrong. But there is clearly a problem with assessing the morality of an action based on what the worst people might do in response to that action—this would make morality forever hostage to the worst people. The easy and obvious fix is to consider the action apart from such efforts to prevent the action by intentionally increasing the harms while also, obviously enough, assessing the ethics of these efforts. So, when considering student loan cancellation there is the moral issue of the consequences of the cancellation itself and there is the distinct moral issue of whether the responses to it would be morally appropriate or not. That is, we need to see if the anger against loan cancellation is morally warranted. If it is not, then the anger might have negative consequences but yielding to that anger would be wrong. In the next essay I will consider the fairness argument, free of anger.

 

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Epistemic Epidemiology: Election Fraud

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While this is being written Trump and his fellows have lost 59 court cases relating to the election. It is, as always, worth noting that Trump’s kraken legal team generally have not alleged widespread fraud in their court cases—for the obvious reason that there are consequences for lying to a judge. After Fox News and other right-wing media outlets started attacking voting technology company Smartmatic, the company responded with legal notices. This resulted in a surreal event on Fox, with a news segment being aired that debunked the election fraud lies made by its own hosts. One infers that Fox lawyers know it would be a disaster if they had to go to court—again, a place where lies about election fraud can have real consequences.

Forbes has a clear summary of the failed claims Trump and his fellows attempted to use to overturn the election for those who want a recap of the particular untruths. Even Trump’s own Attorney General has disagreed with him, stating that there is no widespread election fraud. The electoral college has met and what remains is Biden’s inauguration. Despite all this, Trump and his supporters still claim that there was widespread voter fraud, and that Trump won the election. Anyone who disagrees with them is dismissed as deceived or a traitor and there seems to be no evidence that will convince them that their claims are not true. This suggests the possibility of an epistemic epidemic. That is, there could be millions of people with extremely defective or even diseased belief forming systems. As with any disease, this is not a condemnation of these people—but a recognition of a serious condition that needs treatment.

It is also worth considering that there is also an ethical epidemic. That is, there is a widespread moral disease or condition affecting many people. Those who are lying about the election would be suffering from an ethical rather than epistemic defect—they do not believe what they are saying but are lying to achieve some gain for themselves or their group. For example, someone might make claims about widespread election fraud or even bring a lawsuit to fish for a pardon from Trump. While it can be difficult to sort out ethical defects from epistemic defects in such situations, it does seem reasonable to hold that those in the leadership of the Republican party know that there is no widespread voter fraud. Hence, their claims to the contrary will tend to be the result of ethical defects. But as one moves out into the general population, it seems possible and even likely that many Trump supporters believe the lies about widespread voter fraud. I know people who seem sincere in these beliefs—they are certain that widespread fraud occurred and relentlessly post on social media in support of Trump and his lies. While I do not know what is in their hearts and minds, the evidence is very strong that they believe what they are saying. Given the overwhelming evidence against their beliefs, they must have an issue with their belief forming mechanisms (which is obviously true of all of us sometimes).

Since they lack true evidence for their beliefs about election fraud, their beliefs must be founded on psychological factors and bad logic. The likely logical errors include many classic fallacies. One is clearly wishful thinking (the fallacy of believing that something is true because one wants it to be true). Much of the “reasoning” consists of various fallacious appeals to authority (accepting a claim based on what an inadequate authority claims). These involve accepting the claims of Trump, his allies, and the right-wing “news” outlets that are making these claims when they are clearly defective as experts in this matter. There is also likely to be the use of the fallacy argument from authoritarian (believing a claim because an authoritarian makes the claim)—this would occur when people believe there was fraud because the authoritarian Trump says so. These fallacies are obviously not unique to Trump supporters, but such a widespread infection that presents a danger to American democracy demands additional investigation into the causes of this outbreak and the development of an effective treatment of this epistemic epidemic. Fortunately, the errors seem to be common fallacies—there seems to be no new strain of bad logic loose in the population.

 

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Immortality by Mind Upload

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In the Cyberpunk genre (and others) people upload their minds to machines and, perhaps, gain a form of technological immortality. Because of the obvious analogy to the way computer memory works, it is appealing to take uploading the mind to be uploading memories. In fiction, the author simply decides whether it is the same person or not—but philosophers need to argue this matter.

While the idea of mind uploads might seem like a recent thing, philosophers have been considering this possibility seriously for a long time. On excellent example is John Locke.  On his view, a person is their consciousness, and he considered the possibility that this consciousness could be transferred from one soul to another. Locke’s terminology can get a bit confusing since he distinguishes between person, body, soul, and consciousness. But suffice it to say that on his view, you are not your soul or body. But you are your consciousness. Crudely put, this consciousness can be considered to be your memory. As far back as your memory goes, you go. This is rather important: for you to achieve technological immortality (or as close as possible) it needs to be you that continues and not just someone like you.

Locke anticipates the science fiction idea of uploading your mind and considers the problems that arise if consciousness makes personal identity and it could be transferred or copied. His solution seems to be a cheat: he claims that God, in His goodness, would not allow this to happen. But if Locke is right about consciousness being the basis of personal identity and wrong about God not allowing it to be copied, then it would be at least metaphysically possible to upload your mind by copying your memories.

David Hume, an empiricist like Locke, presented an argument by intuition against Locke’s account: people believe that they can extend their identity beyond their memory. That is, I do not suppose that it was not me just because I forgot something. Rather, I suppose that it was me and that I merely forgot. Hume took the view that memory is used to discover personal identity—and then went off the rails and declared the matter of personal identity to be all about grammar rather than philosophy. But even if the memory approach to personal identity fails, there are other options. One simple approach is to cheat a lot and just talk about the mind (whatever it is) being uploaded. The mind would, of course, also need to be the person—otherwise it would not be you getting immortality.

Assuming the mind is the person, there are two possibilities: it can be copied/transferred or it cannot. If it cannot, then this sort of technological immortality is impossible.

Suppose that the mind can be copied. If it can be copied once, then there seems to be no reason why it cannot be copied multiple times. The problem is that what serves as the basis of personal identity is supposed to be what makes me who I am and makes me distinct from everyone else. If what is supposed to provide my distinct identity can be duplicated, then it cannot be the basis of my distinct identity. Locke, as noted above, “solves” this problem by divine intervention. However, without this there seems to be no reason why my mind could not be copied many times if it could be copied once. As such, a being might have a copy of my mind, just as it might have a copy of the files stored on the phone I own now. There seems to be a paradox here: to have technological immortality, then the mind must be copyable. But if it can be copied, then it is not the basis of personal identity—it is not what makes you the person you are, distinct from all other things. So, if your mind can be copied, you are not your mind and the copy will not be you. It will just be someone like you; a technological doppelganger. If your mind cannot be copied, then there is no technological immortality in the strict sense.  So, for the copy to be you, it would need to possess whatever it is that made you the person you are and what distinguished you from all other things—that is, your personness and your distinctness. But perhaps this could be transferred.

One interesting possibility is that the mind could be transferred from a biological system to a new technological one. In this case, you would be transferred rather than copied—it would be like handing off a unique item as opposed to creating a copy. In this case you could achieve technological immortality. Your original body might keep living, but if you are transferred whatever that entity is it would no longer be you. It would be like a house you once occupied. This, of course, is analogous to possession: an entity takes over a new body by transferring into it.

As a final possibility, it is worth considering that the Buddha is right: there is no self. In this case, you can never upload yourself because there is no self to upload.

 

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Autonomous Assassination

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The assassination of Iranian scientist Mohsen Fakhrizadeh might have been conducted by a remote-controlled weapon. While this is still a conventional assassination, it does raise the specter of autonomous assassination automatons—assassin bots. In this context, an assassin bot would be capable of conducting its mission autonomously once it was deployed. Simple machines of this kind already exist—one could think of the land mine as an autonomous assassination device—once deployed it “decides” to activate according to its triggering mechanism. But when one thinks of proper assassin bot, one thinks of a far more complicated machine—one capable of seeking and killing its target in a sophisticated manner. Also, it could be argued that a mine is not an assassination machine—while it can be placed in the hopes of killing a specific person, they lack the hallmarks of an assassin. That is, they do not seek a specific human target to kill them. As such, a proper assassin bot would need to be able to identify their target and attempt to kill them. To the degree that the bot can handle this process without human intervention it would be autonomous.

The idea of assassin bots roaming about killing people raises moral concerns. While the technology would be new, there would be no new moral problems here—with one possible exception. The primary ethical matters of assassination involve questions about whether assassination is morally acceptable and debates over specific targets, motivations, and consequences. But unless the means of assassination is especially horrific or indiscriminate the means are not of moral concern—what matters morally is that some means is used to kill a person, be those means a punch, a poniard, a pistol, or poison. To illustrate, it would be odd to say that killing Mohsen Fakhrizadeh with a pistol would be acceptable but killing him as quickly and painfully with a knife would be wrong. Again, methods can matter in terms of being worse or better ways to kill, but the ethics of whether it is acceptable to assassinate the person are distinct from the ethics of what means are acceptable. Because of this the use of assassin bots would be covered by established ethics—if assassination is wrong, then the use of robots would not change this. If assassination can be morally acceptable, then the use of robots would also not change this—again, unless the robots killed in horrific or indiscriminate ways.

There seem to be two general ways to look at using assassin bots in place of human assassins. The first is that their use would remove the human assassin from the matter. To illustrate, a robot might be sent to poison a dissident rather than sending a human. As such, the moral accountability of the assassin would be absent—though the moral blame or praise would remain for the rest of the chain of assassination. Whether, for example, Vlad sent a human or a robot to poison a dissident Vlad would be acting the same from a moral standpoint.

The second is that the assassin bot does not remove the assassin from the moral equation, but it does change how the assassin does the killing. To use an analogy, if an assassin kills targets with their hands, then they are directly engaged in the assassination without even the intermediary of a weapon. If an assassin uses a sniper rifle and kills the target from hundreds of yards away, they are still the assassin—they have directed the bullet to the target. If the assassin sends an assassin bot to do the killing, then they have directed the weapon to the target and are the assassin—unless the assassin bot is a moral agent and can be accountable in ways that a human can be, and a sniper rifle cannot. Either way, the basic ethics do not change. But what if humans are removed from the loop?

Imagine, if you will, the algorithms of assassination encoded into an autonomous AI. This AI uses machine learning or whatever is currently in vogue to develop its own algorithms to select targets, plan their assassinations and deploy autonomous assassin bots. That is, once humans set up the system and give it basic goals the system operates on its own.

The easy and obvious moral assessment is that the people who set up the system would be accountable for what it does. Going back to the land mines, this system would be analogous to a very complicated land mine—while it would not be directly activated by a human, the humans involved in planning how to use it and in placing it would be accountable for the death and suffering it causes. Saying that the mine went off when it was triggered would not get them off the moral hook—the mine has no agency. Likewise, for the assassination AI—it would trigger based on its operating parameters, but the humans would still be accountable for what it does to the degree they were involved. Saying they are not responsible would be like the officer who ordered land mine placed on a road claiming that they are not accountable for the deaths of the civilians killed by those mines. While it could be argued that the accountability is different than that which would arise from killing the civilians in person with a gun or knife, it would be difficult to absolve the officer of moral responsibility. Likewise, for those involved in creating the assassin AI.

If the assassin AI developed moral agency, then this would have an impact on the matter—it would then be an active agent in the process and not merely a tool. That is, it would change from being like a minelayer to being like the humans in charge of deciding when and where to use mines. Current ethics can, of course, handle this situation: the AI would be good or bad in the same way a human would be in the same situation. Likewise, if the assassin bots had moral agency—they would be analogous to human assassins.

 

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Could Trump Pardon Everyone for Everything Forever?

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Since Trump has talked about pardoning himself, his family and others, there has been considerable interest in the scope of the pardon power. LegalEagle has an excellent video that walks through key questions about the pardon based on precedent and legal scholarship. My interest, though, is with a seemingly crazy question: could Trump (or any president) pardon everyone for everything forever?

While this question might seem stupid, it is worth considering because it is an invitation to explore the limits of the pardon power of the president. Here is the law as written in the Constitution: “…he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Since this is a mere single sentence, I will also need to rely on legal precedents and informed speculation on the part of Constitutional scholars to answer my question. I will begin with the matter of pardoning everyone.

While there is the question of whether the President can pardon himself, the President can clearly pardon anyone else. The President can also issue mass pardons, as Carter did in the case of the draft dodgers. Since the Constitution does not specify a numerical limit, then Trump does have the power to pardon everybody. If he can pardon anyone and issue mass pardons, then there would seem to be no line that can be drawn forbidding him from extending pardons to everyone. As such, Trump can pardon everyone. But can he pardon everyone for everything?

There are two limits specified on the pardon power. The first is that the pardon only applies to “offenses against the United States.” This has been established to mean federal crimes and so Trump cannot pardon people for state crimes. There have been some attempts to argue that “offenses against the United States” includes all crimes because the states are parts of the United States; but this argument has never gained any traction. But this could certainly change with a court ruling. The second is that the President cannot pardon in cases of impeachment (Presidential or other). These are the only two limits. As such, the President could pardon anyone for any (or all) federal offense except for impeachment. The final question is whether Trump could pardon forever.

Thanks to Gerald Ford’s pardon of Nixon, the pardon power has been shown to apply preemptively to crimes for which a person has not been convicted and even those for which a person has not been charged. Ford was acting according to well established law; the Supreme Court ruled that the power to pardon applies  “to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” As such, the President could pardon anyone for everything (except state crimes and impeachment) after the commission of the offense. This does raise the question of how far back in time an offense can be and still be pardonable. The obvious answer is that since the offense must be committed against the United States, the oldest offense that could be pardoned would be set by the origin date of the United States. But what about future crimes?

Talk of pre-emptive pardons can be a bit confusing since this could be taken as pardoning someone for an offense they have yet to commit. But, as noted above, the ruling is that the pardon must come after the offense has been committed. As long as this ruling stands, then Trump cannot pardon people for offenses they have yet to commit. As such, Trump cannot issue a pro-active pardon for an offense that has yet to be committed. So, he cannot pardon everyone for everything forever. While not directly related to time, there is also the question of whether the President can pardon someone for an offense they did not commit.

On the face of it, there would seem to be no reason to pardon a person for an offense they did not commit—they would have no need for it. To use an analogy, it would be like giving someone medication for an illness they do not have—it would be pointless. But one might think, a person who has committed no offense might as well accept a pardon. However, this could be a problem for them since the Supreme Court has also ruled that accepting a pardon “carries an imputation of guilt and acceptance carries a confession.” As such, anyone who accepts a pardon from Trump is admitting guilt and confessing to the offense. While they would avoid the legal consequences for the federal offense, this could impact their reputation (assuming they have any left) and could be used against them in various ways. For example, a case can be made that a person pardoned for an offense can no longer plead the Fifth on that offense—they cannot incriminate themselves because they have already admitted guilt by accepting the pardon. But there could be cases in which a person who had committed no offense might want a pardon.

If an innocent person is likely to be charged with an offense they did not commit and they are likely to be convicted, then it would be reasonable to accept a pardon. As an authoritarian Trump sees Justice Department as his and as a tool to use against his enemies. He has been enabled in this by Attorney General Barr. This is consistent with his being a “law and order” President, since “law and order” is commonly used as a racist code for repression of minority communities. While Trump is perhaps not serious, he persistently calls for Hillary Clinton to be locked up. It could be that Trump believes that Biden and the Democrats also see the law as he sees it: a weapon to be wielded and a tool to be exploited. As such, it makes sense for him to think that the Democrats might go after his family and associates without concern for the facts—since this is exactly what he would do if he could get away with it. Trump could thus try to pardon people for crimes he claims they did not commit to protect them from vengeful prosecution. There are few problems with this approach.

One problem is that Biden and the Democrats will not make up fake offenses to charge Trump’s family and associates with. Laying aside any claims about Biden being committed to the rule of law, Biden and the Democrats simply do not need to make up offenses—Trump and his associates have been busy committing offenses.

A second problem is that this line of reasoning falls apart. While Trump could issue pardons for any and all federal offenses said to have been committed prior to the pardon, he will lose his power to pardon when he is no longer President. If the Democrats were willing to just make up crimes, then they could just say the made-up crimes occurred after Trump’s pardon. They could also just make up state crimes. Or just have people in vans take away Trump’s associates. As such, Trump’s pardons only make sense if those pardoned committed the crimes and Trump believes that the Democrats will not just make up crimes.

A third problem is that the ruling is specific that the pardon must occur after the offense. If no offense was committed, then it cannot be pardoned. As such, Trump cannot claim that his family and associates committed no crimes while also pardoning them. Circling back, his family and associates would admit guilt by accepting the pardons and Trump could only pardon them if they committed the offenses. If they insist they committed no offenses, then they cannot accept the pardons and Trump cannot grant them a pardon for an offense that did not occur.

If Trump states that they did not commit any offenses and issues pardons to pre-empt allegedly unjust investigations, then this could result in Supreme Court case. Trump being Trump, he might very well insist that those he pardons have committed no offenses but he is pardoning them for these offenses.

On the one hand, pardoning someone for an offense they did not commit would seem to be something the President cannot do: they can only pardon an offense after the offense has occurred. On the other hand, a ruling might allow this on the grounds that if the pardon does not hold, then the person could be convicted of the offense that they were pardoned for (even though they denied they committed it)—which would be an obvious problem. At the heart of this matter is whether the President can pardon something for an offense they did not commit—while the obvious answer would seem to be “no”, the law can be a strange thing.

To close, Trump could pardon everyone for every federal offense committed prior to his pardon. But he cannot pardon everyone for everything forever.

 

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