America Needs to Prosecute Its Presidents
Pardoning Trump, like Nixon before him, would be a disaster.
Electoral defeat for Donald Trump, even if the transition of power goes smoothly, will not be the end of the country’s political crisis. It would instead be the beginning of the next test of the American political system: confronting the record of wrongdoing left by the Trump administration, both the crimes committed in office and crimes overlooked due to his power.
Grappling with the Trump post-presidency will include delicate questions about how to investigate potential criminal and civil wrongdoing committed by the president, his associates, and his family. And there is a chance the country may not be up to this task.
There’s one clear precedent for worrying: President Gerald Ford’s pardon of his criminal predecessor (and tax cheat) Richard Nixon, and the subsequent elite embrace of that pardon. That means it’s important to lay out the case for why a potential President Biden should not pardon Trump for offenses committed against the United States.
To be sure, Biden has pledged not to do so. Yet there have been signs that he may be going wobbly. Whereas in 2019, Biden emphasized that Trump’s actions merited scrutiny (“This guy does all these things that put us in jeopardy and he gets off?” he said to Radio Iowa), in an August NPR interview he emphasized instead that pursuing criminal charges against a former president would be “a very, very unusual thing” and “probably not very—how can I say it?—good for democracy.”
These shifting stances may just be an attempt to calm nervous voters. But the direction of that shift is also what we would expect from a candidate attuned to the conventional wisdom of U.S. elites: that pardons of even criminal ex-presidents can heal the country.
The American political system has no tradition of official disgrace or damnatio memoriae. All presidents are honored, even those who were awful or, in the case of President John Tyler, disloyal. Tyler, the tenth president, not only ran a disastrous administration but ended his public life as a congressman in a brief-lived treasonous slave power. And yet even Tyler receives official remembrances, including a presidential dollar coin featuring his image.
That coin illustrates the natural arc of American political culture: institutional ignoring of the misdeeds of the powerful in the name of “healing.” Yet this norm does not heal; it harms. It makes a mockery of Americans’ belief that they have a government of laws, not of men, if those laws do not apply to the men who enforce the laws. It constitutes a denial of justice and an amnesty granted only to the powerful. Left unchallenged, this norm will protect Trump from the reckoning that the country needs.
Consider how the system dealt with Nixon.
Time has so effaced the details of Nixon’s malfeasance that he has regained a patina of statesmanship. Thus, Richard Haass, president of the Council on Foreign Relations, could recently tweet a favorable comparison between Nixon and Trump, arguing that that “Nixon, for all his flaws, was a conservative who abided by norms.”
Haass’s viral tweet reflects an irony that, in death, Nixon has finally been accepted by the sort of institution whose rejections kindled in him a lifelong resentment of the Eastern Establishment he tried to join. In doing so, it reflects a general amnesia about why Watergate was so bad that illustrates how far elite culture will go to forgive the crimes of the powerful.
The signature moment of Watergate is the June 17, 1972, break-in, when a team of burglars were caught in the Democratic National Committee headquarters. Reporting and investigations soon uncovered ties to the White House. But that was just the tip of a very dirty iceberg. Subsequent prosecutorial and congressional investigations broke apart not just the Nixon administration’s frantic, illegal cover-up of its ties to the burglary but uncovered an entire panoply of what Attorney General John Mitchell called the “White House horrors.”
These included use and the attempted use of government agencies like the IRS to go after the president’s political enemies. The administration sought to persecute its enemies, leading to abuses like an attempt to steal the files of dissident Daniel Ellsberg’s psychiatrist. The president directed his aides to retrieve classified papers from the Brookings Institution by any means necessary, including stealing them or firebombing the think tank. Even the Watergate break-in turned out to be the second one—the first, on May 28, 1972, had been undetected.
And Nixon was not above using his position to enrich himself. He used government agencies to improve his private residences. And he evaded taxes, including by improperly claiming deductions related to his gift of his vice-presidential papers to the government. Far from abiding by norms, he broke them with abandon.
None of this should have come as a surprise given Nixon’s pre-presidential career, including his use of campaign funds for personal expenses (sanitized as his so-called Checkers speech), his attempt to win the 1968 election by sabotaging Vietnam peace talks, and his ties to various underworlds.
Nixon’s wrongdoing extended far beyond the break-in and coverup. His administration displayed a consistent pattern of abuse of powers matching or exceeding that of Trump.
And yet somehow minimizing that pattern of abuse has become the literal textbook version of history. In Alan Brinkley’s widely assigned high school history textbook The Unfinished Nation (1992), for example, Watergate receives two and a half pages, without mentioning any specific crime other than the break-in.
This revisionist history may explain why, in a 2014 CNN survey, only 51 percent of Americans reported considering Watergate a “very serious matter” that revealed unusual corruption in the Nixon White House, while 46 percent reported that the scandal was “just politics–the kind of thing both parties engage in.”
Brinkley’s textbook later blandly mentions that President Gerald Ford, Nixon’s successor, suffered political consequences from his decision to offer Nixon a blanket pardon for wrongdoing while in office.
Pointedly, Ford had rejected pardoning Nixon during his confirmation hearings as vice president. Once in office, though, a chorus of voices lobbied him to change his mind, claiming that neither the country nor Nixon himself might survive the trial.
Ford’s pardoning of Nixon was unpopular at the time, with 53 percent of Americans rejecting it. It has since become conventional wisdom among America’s institutional elite that Ford’s act was merciful and correct. In 2001, a panel of eminences recruited by the John F. Kennedy Library Foundation honored Ford’s pardon of Nixon by giving him its Profiles in Courage Award.
At the awards dinner, Senator Ted Kennedy praised the wisdom of Ford’s decision. “I was one of those who spoke out against his action then,” Kennedy said. “But time has a way of clarifying past events, and now we see that President Ford was right. His courage and dedication to our country made it possible for us to begin the process of healing and put the tragedy of Watergate behind us.”
It’s hard to find dissenters from this view in D.C. power circles. Yet there are those who view Kennedy’s argument as dangerously wrong-headed. One of those was Elizabeth Holtzman, who in 1974 was a firebrand first-term liberal representative from New York City who sat on the House Judiciary Committee during its impeachment hearings.
In an oral history with the federal Nixon Presidential Library, Holtzman called the “healing” argument “nonsense”. “In my mind, the impeachment process brought the country together, because whether you had voted for Nixon, whether you’re Republican or Independent or Democrat or unaffiliated, you felt that the rule of law had finally been carried out,” she said. “We reconnected to our commitment to the rule of law and then we had President Ford come in and [shatter] that.”
By downplaying the seriousness of Nixon’s crimes, and stopping further consequences, the pardon made it possible to reduce Watergate from the White House horrors to the break-in. It also enabled Nixon’s rehabilitation.
When Nixon died, President Bill Clinton ordered the closing of government offices “as a mark of respect for Richard Milhous Nixon.” In a cloying eulogy delivered “on behalf of a grateful nation,” Clinton praised Nixon’s legacy in domestic and foreign policy, without a single reference to Watergate or abuse of power other than the banal acknowledgment that “He made mistakes.”
The healing myth has become part of a bipartisan catechism even though its central premise—that the pardon healed the country—is unsupportable. In the long run, as Holtzman said, “the Nixon pardon has had terrible ramifications.” It set the stage for later pardons related to executive self-interest, including George H.W. Bush’s pardons of many figures involved in the Iran-Contra scandal.
If U.S. political culture can congratulate itself for rehabilitating Nixon, then the temptations for a Biden administration to do the same for Trump will be powerful. Doing so will let the administration move on to other priorities, sensible centrists will argue. And the next election is only two years away—do you really want to have Trump still in the news by then?
Advocates of a pardon or other forms of clemency will point to other factors as well. They will argue that, in a polarized country, the specter of politicized prosecutions will raise the possibility that vengeful Republicans will retaliate later. And indeed, it would be disastrous for democracy were each administration to misuse prosecution against its political enemies.
Yet given what we already know about the president’s finances and conduct in office, an investigation of the Trump administration is unlikely to be politicized in any meaningful sense. It is only a refusal to prosecute that could be politicized, in the sense of being guided by political calculation rather than a commitment to the rule of law. (That would apply doubly to the idea that a pardon could help ease Trump out of the White House without strife.)
More sophisticated observers might caution that even potentially justifiable prosecutions could have deleterious effects on U.S. politics and the country’s standing in the world. The prosecutions of Brazil’s most recent presidents—Lula, Dilma, and Michel Temer—did much to clear the way for the election of the country’s disastrous current president, Jair Bolsonaro. Similar concerns have been raised about other prosecutions elsewhere, like Ecuador’s conviction of former president Rafael Correa, which barred him from a return to politics.
But it’s strange to argue that democracy depends on not prosecuting those who commit crimes. In France, even a prime minister caught misusing public funds may now go to jail rather than retire to a villa. And although some have criticized South Korea for prosecuting its ex-presidents (over half of whom are now in prison), measures like the Varieties of Democracy index show that Seoul’s record on liberal democracy is stronger than that of the United States.
It should not be surprising that democracy and prosecutions of former officials can go together. That is, after all, the entire point of the rule of law. Holding officials to account forms a critical part of strengthening democratic institutions. And the ballot box is only one way to do that.
That is why Biden must not waver. If a former president has never been prosecuted in American history, that’s because the last time the country had a chance to do so it was denied that opportunity. Far from being bad for democracy, a sober, lengthy, and deliberative investigation would be good for establishing a record of the rot in the Trump administration. And it would be a major boost for liberal democracy and anti-corruption efforts by demonstrating that in mature democracies, officials face consequences.
Having a president who committed crimes is not unprecedented in American history. What would be unprecedented would be to end this long national nightmare by letting them face the same justice that any other American should.