In an August interview with the New York Post, President Trump disclosed that he had polled his aides on the prospect of pardoning former NSA contractor Edward Snowden, going as far as saying he was open to it.
There is no doubt that the infamous 2013 leak caused a great deal of damage to America’s national security apparatus. However, I believe there is still a compelling case for why a pardon is warranted. This is despite the fact Trump previously referred to Snowden as a traitor and a spy worthy of execution.
His leaks led to institutional intelligence reforms
Since the Snowden leak, there have been several historic reforms to the intelligence gathering and oversight safeguards of the NSA. For instance, the agency now publishes an annual transparency report that discloses, among other things, the number of targets affected by court ordered surveillance operations.
Other significant reforms include the practice of now letting outside counsel argue privacy concerns directly to the FISA court, and new privacy rules for surveillance programs affecting foreigners located outside the United States.
These reforms and others have resulted in an intelligence establishment that now enjoys a level public support and an air of legitimacy that would not have been possible before Snowden.
It wouldn’t be the worst of Trump’s pardons
The pardon power is plenary, with almost no restrictions on its use. President Trump has taken advantage of the broad discretion afforded to him and used it to his absolute advantage, pardoning extended family members, former aids, and white collar criminals.
With only weeks left in the Trump presidency, any high profile pardon would be controversial, and might be seen as a means of distracting attention away from discussions of later pardons for Trump’s family and inner circle. That being said, it would likely be better received than those issued recently to four security contractors who were convicted of murdering 14 unarmed Iraqi civilians — their employer having personal ties to Trump’s education secretary.
Finally, a Snowden pardon would also absolutely be eclipsed by the prospect of a Trump self-pardon, something that has been widely speculated about since early in his presidency.
Several prominent Republicans already publicly support it
Staunch Trump Senate ally Rand Paul and Congressman Matt Gaetz have come out in support of a Snowden pardon. Paul even went as far as to call out the double standards of pursuing Snowden, while allowing former DNI James Clapper to avoid any serious consequences for blatantly lying to Congress over the NSA’s domestic mass surveillance operations.
It would be one of Trump’s last opportunities to tarnish Obama’s legacy
The nature in which the pardon power was used by the President Obama is significantly at odds with that of Trump. Not only because of the individuals Trump has so far chosen to pardon, but also for the methodology that drives those choices.
Obama considered the pardon power to be an ‘individualised moral judgement’ and an act of forgiveness. Trump on the other hand sees the it as an exercise in political or utilitarian calculation.
Another way of saying this is that Trump engages every pardon decision with a simple question:
What is in it for me?
The answer is obvious. A pardon for Snowden would be a direct rebuke to his predecessor — a predecessor who failed to entertain the idea of a Snowden pardon despite significant public support in the form of a petition that garnered more than 150 000 signatures.
Pardoning the person responsible for the biggest national security scandal of Obama’s presidency would be one of the few ways left for Trump to give the proverbial middle finger to the person whose legacy he has spent the last four years trying to dismantle.
Trump’s use of executive power has largely been self-serving. However, a pardon for Snowden is in my opinion good policy, and could be one of the most Trump-like things the President could do — which is exactly why he should do it before he heads out the door.