Enough Politics Before Law: The US Must Abandon Presidential Privilege and Prosecute Donald Trump

Donald Trump and Richard Nixon (photo: Salon/Getty Images)

18 august 22

Americans wanted to get over Watergate by letting Richard Nixon slink away quietly. Trump will do no such thing

Heather Digby Parton/salon 

When President Gerald Ford pardoned Richard Nixon in 1974, many Americans were appalled. In fact, it's widely assumed to have been a decisive factor in Ford's 1976 loss to Jimmy Carter. Still, there was a general sense of relief among the public that the Watergate saga was over. Ford had wanted Nixon to show contrition as a condition of the pardon but the disgraced former president refused. Ford issued the pardon anyway, absolving him of all crimes committed while he was president. Nixon did eventually issue a fairly gracious acknowledgment after he received the pardon. It's the closest thing to an apology Richard Nixon ever gave the country:

I was wrong in not acting more decisively and more forthrightly in dealing with Watergate, particularly when it reached the stage of judicial proceedings and grew from a political scandal into a national tragedy. No words can describe the depth of my regret and pain at the anguish my mistakes over Watergate have caused the nation and the presidency, a nation I so deeply love, and an institution I so greatly respect.

Richard Nixon had made many political comebacks in his career, but, at this point, it was all over. He had resigned in disgrace and the country could move on, at least secure in the knowledge that he would never hold public office again. There would be no more comebacks.

The notion that it is wrong to prosecute former presidents for what they did while in office may have been around before all of that happened but it really seemed to take hold with Nixon. Many people were upset, of course, but the argument that there was something destabilizing about a new administration prosecuting its predecessor and having the taint of banana republic politics was pretty compelling. The shame and humiliation of a tarnished legacy were believed to be powerful deterrents to the kind of people who would seek the highest office in the nation. The ugliness of putting a former leader on trial and potentially in jail would change American politics forever and it made a whole lot of people feel queasy.

It's pretty clear today that that was a mistake. It may have once been OK to allow a disgraced president to resign and live in solitary obscurity to contemplate his crimes. The acute danger to the country was over, after all, the presidency was peacefully transferred and Congress enacted many reforms to deal with future presidential overreach. But those arguments do not apply to our current crisis. Donald Trump simply won't stop committing crimes and is determined to keep doing it as long as he can get away with it. Just try to imagine him putting out a statement like Nixon's.

Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel, wrote a piece for Lawfare this week in which he discusses this subject. He has long been one of those opposed to prosecuting former presidents for all the reasons I outline above but has reluctantly come to the conclusion that this situation may require it. Donald Trump is unlike any president in American history. Goldsmith was moved to write about this in the context of Trump's latest scandal — his inexplicable decision to illegally abscond with White House documents intended for the National Archives, some of which we now know were highly classified and which he refused to return. 

We may never know the contents of those documents but we do know that a grand jury has been hearing testimony about this issue for months and that the head of the counterintelligence division of the FBI was alarmed enough to apply for a search warrant citing laws governing obstruction of justice, removal or destruction of records, and violation of the Espionage Act. Goldsmith believes that whether this was a wise move by the DOJ depends on the contents of the documents and whether it is proven that Trump refused to cooperate. I think he's missing the forest for the trees.

It may turn out that the documents are not as sensitive as they thought and all that will happen is that they are returned to the National Archives. But you have to look at this in the context of Trump's years-long crime spree to see that they had no choice but to take this extraordinary step. His contempt for the rule of law is so brazen that if they didn't, we might as well just officially declare that he has blanket immunity from criminal prosecution in perpetuity and call it a day.

Consider the long list of crimes that the Justice Department was precluded from prosecuting because of the policy against prosecuting a sitting president. The Mueller Report alone listed almost a dozen instances of obstruction of justice just in the first two years of Trump's presidency. He tried to bribe a foreign leader for personal political gain and was impeached for doing it. His abuse of presidential power to punish enemies and reward cronies is unprecedented. As we speak, he is under investigation for attempting a coup and disrupting the peaceful transfer of power.

And he's running for president again, with the full backing of tens of millions of loyal followers who are convinced that Trump is being persecuted simply for being their hero.

Trump has slithered out from under the law and managed to evade accountability for his misdeeds his entire life. He has been committing crimes and dealing in corrupt practices at an ever-increasing pace since he entered politics, believing that it shields him from legal liability. In fact, he believes that being president allows him to literally do anything he chooses.

So everyone is rightfully worried about what will happen if Trump is held accountable for his crimes. After all, he has already unleashed his violent supporters on the FBI and is saying publicly that something terrible is going to happen because of his supposed persecution. His cult-like following is talking about civil war.

But part of the reason he has all those followers in the first place is that he seems to be invulnerable. They see him as a super-hero, still standing after all the slings and arrows dished out by the legal authorities and the political opposition. It's just possible that if the rule of law prevails for once, the veil might fall and some of them will see him as the frail narcissist he really is. Let's just say, it's worth a try. It's not like letting him off the hook has worked up until now.