Biden-Trump pact 2024: Biden should commit to not run for president if Trump agrees to do the same

A presidential pact not to run for the White House in 2024

Published March 17, 2023 5:47AM (EDT)

Donald Trump and Joe Biden (Photo illustration by Salon/Getty Images)
Donald Trump and Joe Biden (Photo illustration by Salon/Getty Images)

President Biden knows that a majority of Americans don't want him to run for president in 2024. But Biden also believes he is the best candidate to stop Trump, who he views as the biggest threat to our democracy. So let's take a look at more direct action that Biden can take to ensure Trump doesn't retake the presidency: The president can voluntarily commit to not running for a second term if Trump also agrees to end his bid for the White House. To sweeten the deal, Biden could also offer Trump a pardon that's conditioned on him not seeking the presidency. 

The offer would reinforce democracy no matter what.

If Trump agrees, Biden removes an election denier from presidential contention. If Trump declines, Biden's selflessness would not go unnoticed. That a sitting president would make such a sacrifice could cause many voters, including independents and Republicans, to take a second look at the dangers our democracy is facing. 

Biden — unlike his predecessor — potentially realizes that the office is bigger than one person. To step down and not seek reelection would be an unequivocal stand, an act on par with George Washington's decision to decline a third term run. It would also be a graceful exit, something else Biden understands. (He was allegedly keeping the plush ambassadorship to Italy open for Rep. Nancy Pelosi, D-Calif., in case she didn't want to run again for Congress.) 

But why would Trump agree?

A presidential pact also gives him an elegant out. It protects him from a potential loss in the GOP primary or a second defeat in the general election. It allows Trump to say he stopped Biden from attempting to ruin the country for another four years. 

The deal would keep him out of federal prison. No one knows if charges will be brought over his alleged mishandling of classified documents or his alleged role in inciting the January 6th insurrection. Yet unlike state investigations in Georgia and even New York where a sizable portion of any jury pool might be MAGA supporters, the same would not hold for federal cases brought in Washington D.C., where Trump received only 5.4% of the vote in the 2020 presidential election. If federal charges are brought, Trump can't count on jury nullification. Extending the offer of a pardon to Trump now, regardless of anticipated charges, gives him security and lessens the need for him to run again to avoid charges. 

Of course, Trump could accept and then renege on his word — which would be true to form. So the deal should be structured to make it painful for Trump if he tried to walk back his promise. First, his conditional pardon would immediately be revoked. There is ample precedent that conditions placed on pardons are legally enforceable. If Biden decided to run for a second term while offering Trump a pardon conditioned on not running, it could raise concerns of a sitting president potentially personally benefitting from pardoning someone–something the draft Protecting Our Democracy Act is attempting to unequivocally make illicit. Yet if Biden also agrees not to run again, the offer of a conditional pardon for Trump would be unrebukable.

Even if Trump accepted the pact, special counsel Jack Smith could continue investigating any potential crimes committed by Trump in case of a breakdown in the agreement, to determine the full scope of all possible breaches in national security, and, similar to truth commissions, to establish as complete a historical record of events as possible.

Any number of additional protections could be built into the Biden-Trump pact, both contractual and extra legal. For example, at the outset of the agreement, both Trump and Biden could plea with their respective supporters not to vote for them in the primaries if they breached the agreement not to run. Even if only a fraction of supporters followed suit, it could be determinative. 

Plus, there aren't many good lawyers around who want to help Trump wiggle out of things anymore, anyway. A well-known Republican lawyer told the Washington Post that, "Everyone is no." Our former president's legal team now includes an "insurance lawyer who's never had a federal case, a past general counsel for a parking-garage company and a former host at far-right One America News." 

To be clear, even with Trump's proclivities to break deals, the Biden-Trump pact would offer Trump so much–a federal pardon, bragging rights for ousting Biden, no chance of losing again at the primaries or general election, and an elegant exit–that the possibility of him reneging shouldn't be overblown. 

If Biden got Trump to drop out of the race by committing to do the same, it would prove that Biden's loyalties lie first and foremost with our nation's democracy, not his party's agenda. It may not heal our political divide. It might, however, elevate expectations of what we should expect from public servants. 

By Martin Skladany

Martin Skladany is a professor of law at Penn State University, Dickinson Law.

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