"My fellow Americans, our long national nightmare is over." These words, spoken by President Gerald Ford on September 8, 1974, after he pardoned Richard M. Nixon, the country's 37th President, were meant to bring closure to a tumultuous chapter in American history. Watergate, a break-in at the Democratic National Committee headquarters and the subsequent cover-up, had deeply shaken the nation's trust in its leaders. I was too young to remember Watergate, but have long admired President Ford’s decision to pardon Nixon. It allowed the nation to heal, to reflect, and to move on. President Ford's pardon came with a heavy political price, however. It was highly controversial and contributed to Ford's loss in 1976. Many felt that Nixon should have been held accountable for his actions and that President Ford’s decision shielded Nixon from justice.
Trump and Nixon: History Repeating
The parallels between Presidents Nixon and Trump are striking. Both faced serious allegations of misconduct, and both inspired intense loyalty among their supporters. Donald Trump received 62,984,828 votes in 2016 and 74,216,154 votes in 2020. Nearly half of America voted for Trump in each election. Trump has now decisively won the Republican primary in 2024, further testament to his significant support among Americans. Prosecuting Donald Trump alienates nearly half of the country, adding to the systemic cost of prosecution. Ironically, one of the principal reasons proffered for criminal prosecution of a former President is to protect American democracy, yet the cost of prosecution may very well include deepening political divisions, eroding public trust in governmental institutions, and diverting national attention and resources away from pressing issues.
President Ford's Pardon of Nixon was a Powerful Precedent Biden Ignored
In the aftermath of Watergate, President Ford granted a full permanent pardon to his predecessor, Richard Nixon, for any crimes he might have committed against the United States while President. While his pardon was aimed principally at healing a nation deeply divided, it also set a precedent for the extent of presidential pardons. When talk of prosecuting former President Trump seemed to take shape and become a reality, soon after the inauguration of President Biden, I first spoke about the need to pardon former President Trump. At the time, I reasoned that the unseemly spectacle of the prosecution of a former President would do significant damage to the country's political landscape. It's not that I condoned the speech and actions of the President on January 6th, but that the damage caused that day would not be erased by further damage to American democracy.
While the pro-Trump-pardon position found no support in the Biden administration's Department of Justice, others have subsequently spoken of the positive role a pardon would have played. Most notably, in May 2024, Sen. Mitt Romney suggested that President Joe Biden should have pardoned Trump and/or fought to end his prosecutions at the first possible moment possible. Similar to Ford's pardon of Nixon, Sen. Romney argued that doing so would have, among other things, spared the nation from a divisive legal battle and damaging precedents. It also would have made Biden the possibly "bigger man" compared to Trump. Romney is correct.
President Biden Bears Responsibility for the Court's Immunity Ruling
Biden's failure to pardon Trump was based on a critical and naïve miscalculation of the power of the Trump Supreme Court's judicial philosophy. President Nixon famously asserted, "When the President does it, that means that it is not illegal." Former President Trump has, in both speeches and his court arguments in Trump v. United States, basically taken the same position. The President, Trump firmly believes, is absolutely immune from criminal prosecution for acts committed while in office. The Supreme Court did not adopt exactly that position -- but it came darn close. President Biden bears responsibility for pushing the Court to do what many feared it would do given the chance.
The Supreme Court’s decision in Trump v. United States is a landmark ruling that freshly addresses the boundaries of presidential immunity. The Court ruled that while certain core presidential functions may warrant special protections, these do not extend to all actions taken by a President. Ostensibly, the Court's decision suggests that former presidents can be held accountable for illegal actions, suggesting that no one, not even the President, is above the law. The problem is the Court didn't really mean that. We know this from both Justice Sotomayor’s dissent and President Biden's Johnny-Come-Lately criticism of the Court's ruling.
In her dissenting opinion, Justice Sonia Sotomayor emphasized the importance of holding Presidents accountable to prevent abuses of power. Fearing the majority's decision had basically eliminated it, she warned that without the threat of criminal liability, future presidents might feel emboldened to commit crimes. "Without the threat of criminal liability, wrote Justice Sotomayor, "future presidents will be emboldened to commit crimes, knowing they are shielded from prosecution."
Joe Becomes Johnny-Come-Lately
In a speech delivered the day after the ruling, President Biden criticized the Court’s decision, arguing that the ruling could weaken the legal safeguards against Presidential misconduct and stressed the importance of upholding the rule of law. Biden highlighted Justice Sotomayor’s dissent, agreeing that accountability is crucial for preserving democracy and the integrity of the presidency. A Biden issued pardon for Donald Trump would have delivered both; his failure to do so will do longstanding damage.
The Legal Axiom: "Bad Facts Make Bad Law"
The phrase "bad facts make bad law" is a statement that difficult or extreme cases can lead to poor judicial decisions. The Trump immunity case presented the Court with complex and unprecedented circumstances, making it a prime example of this legal axiom. The Court’s decision aimed to balance the need for effective presidential function with the necessity of legal accountability, but the contentious nature of the case has created a brutally problematic precedent. A pardon from President Biden would have avoided it completely.
Absolute Immunity Cloaked in the Language of Limits
The Supreme Court’s decision in Trump did not reject the notion of absolute immunity entirely. Instead, it affirmed that a President does have absolute immunity for official acts. The ruling carries potentially dangerous implications, as the definition of what constitutes an official act remains open to broad and potentially limitless interpretation in the future. We did not have to be here. Had Biden followed Ford’s lead and pardoned Trump, we might have avoided the tawdry show trials in Georgia and New York and definitely would have avoided the Court’s Trump v. United States precedent. Instead, today, the country is left with a resurgent, potentially unstoppable Donald Trump and a significantly diminished Biden, in the face of Biden's first debate disaster. If President Biden's administration stood for the need for presidential accountability, he chose the worst possible way to deliver on it.
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