Many gave President Gerald Ford credit for pardoning President Richard Nixon to “put Watergate behind us.” Ford justified this decision by claiming that a long, drawn-out trial would only have further polarized the public.

Many others strongly disagreed. Ford’s press secretary, J.F. terHorst, resigned in protest. The American people were convinced that President Ford was “wrong to give a full and complete pardon to former President Nixon” by 60-33 percent in the Harris Poll.

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Elizabeth Holtzman, who served on the House Judiciary Committee and voted to impeach Nixon explains Why Pardoning Nixon Wasn’t Good for America:

If Watergate is a story of accountability, President Gerald Ford’s pardon of Nixon is a story of presidential immunity.

[I]ssued before any prosecution of Nixon had commenced, and without any acknowledgment of guilt on Nixon’s part, Ford’s pardon created a dual system of justice—one for ordinary Americans and another for the President.

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Sadly, Watergate did not deter other Presidents from abusing their power. From Ronald Reagan and the Iran/Contra scandal to the present, Presidents have used the mantra of national security to ignore the Constitution. Worse, Ford’s pardon has grown into a principle of impunity for Presidents. It is not simply that Presidents are now viewed as safe from prosecution; they cannot even be investigated. No investigation has examined the presidential deceptions that drove us into the Iraq War, or the presidential authorizations of warrantless wiretapping in violation of law, or the possible criminal liability of former President George W. Bush and other top administration officials for violating laws on torture. Neither Congress nor the courts have taken the Watergate example to heart and stood firmly against presidential crimes or serious misconduct.

President George H. W. Bush, on the advice of his Attorney General William Barr (yes, the very same), pardoned everyone involved in the Iran-Contra Affair as a Christmas gift before leaving office. “It demonstrates that powerful people with powerful allies can commit serious crimes in high office, deliberately abusing the public trust without consequences,” said Lawrence Walsh, the independent prosecutor in the case, at the time of the pardons.

As Elizabeth Holtzman noted, the Bush-Cheney administration deceived us into a war, engaged in illegal wiretapping on a massive scale, and adopted an illegal torture program in violation of U.S. and international law. But upon taking office, President Barack Obama and his Attorney General Eric Holder elected to “look forward instead of looking backward.” As a result, no one was ever held accountable for the illegal actions of the George W. Bush administration.

Watergate established a dangerous precedent of presidential immunity – rather impunity – for which each successive Republican president has pushed the envelope of unlawful conduct knowing that the president will never be held accountable at law.

Donald Trump has been the most corrupt and criminal president in American history. He is attempting a coup to overturn the results of a fair and free election he lost to remain in power right now.

President-elect Joe Biden, like the president he served, Barack Obama, reportedly has made it clear that he “just wants to move on.” Whoever Biden chooses to be his Attorney General must recommit this nation to the rule of law and to investigate and prosecute the many crimes of Donald Trump. The Nixon pardon precedent must be reversed, because it has only resulted in escalating abuse of power and obstruction of justice by subsequent presidents.

Paul Waldman of the Washington Post writes, Trump will leave office soon. But we can’t let him escape accountability for his misdeeds.

Joe Biden’s presidency, at least in its early days, will inevitably be haunted by Donald Trump; just cleaning up the wreckage Trump leaves behind could take years. But a new report from NBC News says that Biden has no interest in investigating much of anything that happened in the past four years[.]

When it comes to criminal investigations, Biden has said that he won’t be telling the Justice Department what to do, which is the appropriate position for a president to take. But it’s also appropriate for the department to decide that if there is reason to suspect that a crime occurred, it will investigate, and if the investigation demonstrates that a crime occurred and determines who committed it, those people will be prosecuted. Even if it involves a former president or his associates. It’s not complicated.

We’ve heard this idea that we should “move on” before. Twelve years ago, Barack Obama said that when it came to the fact that his predecessor had initiated a program of torturing prisoners that was not only a moral abomination but also did incalculable harm to America’s image in the world, “we need to look forward as opposed to looking backwards.”

No one was ever held accountable in any way.

* * *

Biden’s desire not to get bogged down with the misdeeds of the Trump administration is certainly understandable. But it doesn’t have to involve him at all. Congress has investigatory power, and Democrats will hold the House and perhaps the Senate as well. There are many topics they ought to investigate — the way Trump used the presidency to line his pockets, the conflicts of interest that might be revealed by his tax returns, horrific policies such as the separation of immigrant children from their parents, the repeated and blatant violations of the Hatch Act — so we can understand whether changes need to be made in the law to prevent them from recurring in a future administration.

[D]o we need a new set of harsh penalties to keep that from happening again, if an administration as lawless and corrupt as Trump’s should come along? How else might the law be changed? You figure that out by investigating and documenting the Trump administration’s behavior.

* * *

The difference between the two parties on this question is just extraordinary. As I’ve said in other contexts, Republicans are the party of “Yes we can” while Democrats are the party of “Maybe we shouldn’t.” They’re forever afraid that someone will criticize them or that being too tough will backfire, something Republicans never worry about.

Which leads to this disheartening line in the NBC News story:

One of the reasons [Biden] has given aides is that he believes investigations would alienate the more than 73 million Americans who voted for Trump, the people familiar with the discussions said.

You have got to be kidding me.

Those 73 million Americans voted for the most corrupt president in American history, a con man and a liar and a bigot and a tax cheat and a sexual predator and someone who as we speak is poisoning our democracy on his way out the door. And Biden is worried that exposing his misdeeds will hurt their feelings?

As Republicans are so fond of saying, “Fuck your feelings!”

We can’t simply act as though the four-year ordeal we all just lived through was nothing but a bad dream. We need to understand the full scope of the damage and how our system failed to stop it. In some cases, that will involve investigating Donald Trump and those who helped him, and if there’s a way to hold them accountable, that’s just what we should do. It’s not a distraction. It’s an obligation.

Jeet Heer makes a similar argument at The Nation. The Perils of Not Prosecuting Trump (excerpt):

[T]here’s little reason to believe that legal punishment would do anything to blunt Trump as a political force. Trump is an anti-system politician, which means that his supporters see any clash between him and legal authorities as proof that he is shaking up the status quo.

* * *

Legal prosecution will do nothing to fight the popularity of Trump and Trumpism. Indeed, given his anti-system persona, it is likely to bind him closer to his followers. He’ll be seen as a martyr.

Having said that, not prosecuting Trump will also come with a cost. The United States is a nation of elite impunity, as the history of recent decades demonstrates. Nixon had to resign for Watergate, but he also received an expansive pardon from his successor, Gerald Ford, which covered all crimes Nixon might have committed as president, even those yet undiscovered. It’s hard to interpret this pardon as affirming anything other than the idea that an American president can never face legal liability, no matter what.

Iran/Contra should be seen as a successful cover-up, with underlings taking the fall for actions that were almost certainly sanctioned by President Ronald Reagan and Vice President George H.W. Bush. Subsequently, many of those underlings, notably Caspar W. Weinberger and Elliott Abrams, received pardons and commutations. A similar code of criminal silence, or omertà, could be seen in the George W. Bush administration, with vice presidential aide Scooter Libby serving as the patsy in the case of the outing of CIA agent Valerie Plame Wilson. Libby also subsequently received a pardon.

Barack Obama, though his presidency was free of major scandals, contributed to the tradition of elite impunity by refusing to punish the crimes of the George W. Bush administration.

* * *

This tradition of elite impunity has done nothing to heal America. Rather, it has served to foster a culture of corruption that grows worse every decade. Trump’s sordid administration is no break from history but a culmination of corruption indulged for decades. The only way the festering criminality in Washington will end is if the Biden administration breaks with history and holds Trump accountable. A failure to do so is a recipe for a new and even more criminal Trump gaining the White House in the future.

In a lengthy analysis exploring the numerous potential crimes of Donald Trump, Jonathan Mahler poses the question at the New York Times magazine, Can America Restore the Rule of Law Without Prosecuting Trump? His analysis is well worth your read.

Mahler concludes:

The nation may desire healing. But there is also the matter of justice, and there is no guarantee that what feels right now will look right through the longer lens of history. Ford was widely assailed for pardoning Nixon. But one of his most outspoken critics at the time, Senator Edward M. Kennedy of Massachusetts, later honored Ford with a Profile in Courage award, explaining that he’d been moved to rethink his views after witnessing the sprawling and protracted investigation into President Clinton by the independent counsel Ken Starr. It may be time to rethink Ford’s decision once more; it’s hard not to wonder if a Trump presidency would have been possible if Nixon had been criminally prosecuted rather than pardoned.

In that sense, the problem that Trump poses for Biden may also present an opportunity, a chance to repair more than just the damage of the last four years. To begin with, this may require recognizing that when a president brazenly flouts the law, electoral defeat might not be enough of a punishment. “There’s a mind-set that we need to reset,” Stephen Vladeck, a constitutional law professor at the University of Texas, told me. “Breaking the law is not a political difference.” It might also require recognizing that to really move on from Trump, “healing” may have to mean something fundamentally different from what it has in the past — and that without accountability, it may in fact be impossible.

Andrew Weissmann, a Department of Justice prosecutor on the Mueller investigation also poses the question, Should Trump Be Prosecuted? (excerpt):

[A]s painful and hard as it may be for the country, I believe the next attorney general should investigate Mr. Trump and, if warranted, prosecute him for potential federal crimes.

I do not come to this position lightly. Indeed, we have witnessed two U.S. presidential elections in which large crowds have found it acceptable to chant with fervent zeal that the nominee of the opposing party should be jailed. We do not want to turn into an autocratic state, where law enforcement authorities are political weapons of the reigning party.

But that is not sufficient reason to let Mr. Trump off the hook.

Mr. Trump’s criminal exposure is clear. I was a senior member of the investigation led by the former special counsel Robert Mueller[.]

We amassed ample evidence to support a charge that Mr. Trump obstructed justice. That view is widely shared. Shortly after our report was issued, hundreds of former prosecutors concluded that the evidence supported such a charge.

What precedent is set if obstructing such an investigation is allowed to go unpunished and undeterred?

* * *

The evidence against Mr. Trump includes the testimony of Don McGahn, Mr. Trump’s former White House counsel, who detailed how the president ordered the firing of the special counsel and how when that effort was reported in the press, Mr. Trump beseeched Mr. McGahn to deny publicly the truth and, for safe measure, memorialize that falsity in a written memorandum.

The evidence includes Mr. Trump’s efforts to influence the outcome of a deliberating jury in the Manafort trial and his holding out the hope for a pardon to thwart witnesses from cooperating with our investigation. Can anyone even fathom a legitimate reason to dangle a pardon?

His potential criminal liability goes further, to actions before taking office. The Manhattan district attorney is by all appearances conducting a classic white-collar investigation into tax and bank fraud, and the New York attorney general is engaged in a civil investigation into similar allegations, which could quickly turn into a criminal inquiry.

These state matters may well reveal evidence warranting additional federal charges. Such potential financial crimes were not explored by the special counsel investigation and could reveal criminal evidence. Any evidence that was not produced to Congress in its inquiries, like internal State Department and White House communications, is another potential trove to which the new administration should have access.

Because some of the activities in question predated his presidency, it would be untenable to permit Mr. Trump’s winning a federal election to immunize him from consequences for earlier crimes. We would not countenance that result if a former president was found to have committed a serious violent crime.

Sweeping under the rug Mr. Trump’s federal obstruction would be worse still. The precedent set for not deterring a president’s obstruction of a special counsel investigation would be too costly: It would make any future special counsel investigation toothless and set the presidency de facto above the law. For those who point to the pardon of Richard Nixon by Gerald Ford as precedent for simply looking forward, that is not analogous: Mr. Nixon paid a very heavy price by resigning from the presidency in disgrace for his conduct.

Mr. Trump may very well choose to pardon not just his family and friends before leaving office but also himself in order to avoid federal criminal liability. This historic turn of events would have no effect on his potential criminal exposure at the state level. If Mr. Trump bestows such pardons, states like New York should take up the mantle to see that the rule of law is upheld. And pardons would not preclude the new attorney general challenging a self-pardon or the state calling the pardoned friends and family before the grand jury to advance its investigation of Mr. Trump after he leaves office (where, if they lied, they would still risk charges of perjury and obstruction).

In short, being president should mean you are more accountable, not less, to the rule of law.

Finally, Philip Allen Lacovara, a former president of the D.C. Bar who served as counsel to the Watergate special prosecutor agrees, Yes, the Biden administration should hold Trump accountable (excerpt):

After the final tumultuous months of the Nixon presidency, Gerald R. Ford decided to end the “long national nightmare” that was Watergate by pardoning his predecessor, thus sparing Richard M. Nixon from the dock where his senior aides awaited trial. Because I considered Ford’s pardon a serious mistake, I resigned in protest as the counsel to the Watergate special prosecutor. I hope that when President-elect Joe Biden assumes office, he will not repeat the same mistake.

* * *

The issue, therefore, is whether it is sound public policy to ignore these offenses to try to avoid further political rancor. There are three reasons why I think we cannot ignore them.

First, my reason for protesting Ford’s pardon of Nixon applies with even greater force now. The Watergate special prosecutor was appointed to demonstrate that “no person is above the law” — even a president. As White House tapes revealed, Nixon falsely assured some of his co-conspirators that, “when the president does it, it isn’t illegal.” Trump has publicly advanced an even more sweeping claim: In resisting grand jury subpoenas issued by New York state authorities for his tax records, Trump declared that a president enjoys “absolute immunity” from even being investigated for possible crimes. In July, the Supreme Court unanimously rejected that argument as inconsistent with constitutional doctrine — just as it did Nixon’s.

The problem I saw with Ford’s pardon of Nixon also applies to giving Trump a pass: Doing so would effectively treat a president, even if a former president, as above the law. Extending a pardon to Nixon while his co-conspirators — White House aides H.R. Haldeman, John Ehrlichman and attorney general John N. Mitchell — were on their way to prison created an unwarranted, privileged position for the former president. Although Biden is unlikely to issue a formal pardon to his predecessor, even deliberately ignoring Trump’s crimes would similarly signal that a president is not subject to equal justice under the law.

Second, although this is not the space to catalogue the numerous avenues of potential prosecution, it is sufficient to note that the report by then-special counsel Robert S. Mueller III lists perhaps 10 or more incidents of criminal obstruction of justice by Trump. More than 1,000 former Justice Department prosecutors publicly asserted that, but for Trump’s position at the time, any other person who had engaged in such conduct would have be indicted. It would be irresponsible to conclude that such serious offenses also should be ignored after Trump leaves office.

Third, the Constitution uniquely prescribes that a president must swear to “faithfully execute the Office of President of the United States.” This commitment dovetails with the primary duty of the president to “take Care that the Laws be faithfully executed.” The convergence between his duty and his oath imposes an obligation on the president to ensure that all laws of the United States, including its criminal laws, are enforced responsibly and equally against all persons. While prosecutors have some discretion about what charges to bring and even about whom to prosecute, it is no more permissible to conclude that former presidents should be excused from criminal culpability than it should be for former corrupt judges or pederast priests or bribe-taking television personalities.

* * *

The collapse of the impeachment process makes it even more imperative to treat the criminal law as a real, available check on presidential abuses. Three presidents have been impeached, but none has been convicted. The requirement that two-thirds of the Senate vote to convict makes this constitutional remedy a virtual dead letter. If a person who succeeds in acquiring the presidency can flout the criminal law with impunity, then we will have rendered our republic unrecognizable to the Founders and dangerous for our descendants.

If we are a truly nation that believes in the rule of law and that “no man is above the law,” the Nixon pardon precedent seriously violated these bedrock principles, and led to the development of what Jeet Heer calls “elite impunity” for presidents. After 46 misguided years, it is time to come full circle and reverse the Nixon pardon precedent. We must begin to restore the rule of law, that we are once again a nation that believes in the rule of law and that “no man is above the law.”




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