Damned Either Way: Merrick Garland Weighs the Mother of All Indictments
In October 1974, President Gerald Ford appeared before Congress to provide his rationale for pardoning former President Richard Nixon after Nixon had resigned from office. Ford's purpose in absolving Nixon of criminal prosecution for crimes including obstructing the investigation into the Watergate break-in, he said, was "to change our national focus." We would, he argued, "needlessly be diverted from meeting (our) challenges if we as a people were to remain sharply divided over whether to indict, bring to trial and punish a former president, who already is condemned to suffer long and deeply in the shame and disgrace brought upon the office he held."
To recall Ford's preemptive get-out-of-jail-free card, issued to America's first certifiably felonious president, is to wonder whether Ford paved the way for our second. Was former President Donald Trump emboldened by the precedent of letting off a criminal ex-president scot-free in order to spare the nation "division"? Was he encouraged to regard himself as free to commit crimes while in office by the legal opinion issued by Nixon's Department of Justice in September 1973 -- while Nixon's criminality was being exposed but before he was forced to resign -- that a sitting president couldn't be indicted?
We'll never know. But we do know that Ford's rationale for letting Nixon skate doesn't apply to the decision Attorney General Merrick Garland must make whether to ask a grand jury to indict Trump.
For starters, Nixon's obstruction of the investigation into the White House's role in Watergate may have been profoundly criminal, but it amounted to jaywalking compared with Trump's attempt and conspiracy to obstruct the constitutionally mandated counting of electoral votes governing the democratic transfer of power -- let alone the crime of conspiracy to commit sedition. As serious as Nixon's crimes were, they pale beside the evidence of a criminal coup d'etat, and there is quite a mountain of such evidence already in the public record.
Here is one question: if a former president is not prosecuted for attempting a criminal coup to keep himself in power against the expressed will of the American people, when would he or she ever be prosecuted? Here's another: how can we look at ourselves in the mirror if someone guilty of that crime is simply allowed to walk?
The answer to the first question: never. The answer to the second: we can't.
It isn't only the magnitude of criminality that differentiates Trump from Nixon. Trump has defrauded America every time it suited him and cheated it when he couldn't defraud it. When he couldn't do either, he simply disgraced it, and in so doing disgraced all of us.
Nixon at least slunk away with a modicum of acknowledgement that he had sullied the presidency. Trump, who wouldn't recognize "sully" if it jumped up and played "On Top of Old Smoky," is not merely remorseless but defiant, eager to pick up where he left off.
Still, the critical issue is whether the Justice Department has sufficient evidence to establish Trump's guilt of a statutory crime beyond a reasonable doubt. If it doesn't, that's the end of it. If it does, then indictment is the necessary, if painful, course.
What happens if Trump is indicted? What happens if Trump is indicted but acquitted, remembering that all his criminal defense lawyers have to do is persuade one juror not to vote to convict? What happens if he is convicted? Will the Supreme Court dominated by justices Trump appointed really permit him to report to a federal prison?
For wisdom, Garland may want to consider other democracies that took a deep breath and prosecuted former leaders for various crimes of corruption. France, Italy and Israel are among them, and their democracies were strengthened, not weakened, for their having done so. They judged that the cost of prosecuting dishonest leaders was lower than that of looking the other way. Whether the United States makes the same judgment is in Merrick Garland's hands.
Jeff Robbins, a former assistant United States attorney and United States delegate to the United Nations Human Rights Council in Geneva, was chief counsel for the minority of the United States Senate Permanent Subcommittee on Investigations. An attorney specializing in the First Amendment, he is a longtime columnist for the Boston Herald, writing on politics, national security, human rights and the Mideast.Copyright 2022 Creators Syndicate Inc.