Prosecuting Trump would set a risky precedent. Not prosecuting would be worse.

By Matthew Dallek, Washington Post guest columnist, February 18, 2022.

When President Richard Nixon resigned in disgrace, the odds of his standing trial for obstruction of justice seemed high: His actions undermining the Watergate investigation had been tape-recorded, and his part in the coverup led to pressure on the legal system to hold him accountable. In September 1974, however, one month after Nixon left office, his successor, Gerald Ford, pardoned him. Ford later told a congressional subcommittee that the pardon was designed to “shift our attentions from the pursuit of a fallen President to the pursuit of the urgent needs of a rising nation.”

It didn’t — not in the immediate aftermath and, in some ways, not ever. Although views later softened, many Americans at the time saw the pardon as a mistake. Some were livid. One powerful man had essentially condoned the criminality of another. The get-out-of-jail-free card exacerbated public cynicism and deepened the nation’s social fractures. The White House switchboard lit up with calls that ran 8 to 1 against Ford’s action. The New York Times captured some of the liberal rage when it described the pardon as an affront to “the American system of justice.” A president who thought he was doing the right thing had taken justice into his own hands, casting doubt on a bedrock idea: Justice is blind; no one is above the law.

Nearly five decades later, Joe Biden is president, and a pardon for Donald Trump isn’t happening. But whether Trump will eventually be prosecuted for his conduct in the White House is more of a conundrum: If the country crosses this inviolate threshold, all hell will break loose. If we don’t cross it, all hell will break loose. There will be no “shifting our attentions” by advocates of either course. And whichever path the nation follows will have lasting repercussions. One thing is increasingly clear — fear will play a greater role than facts in determining it.

If Trump were indicted, he would become the first former president to stand criminal trial. Prosecutorial threats are multiplying: Bank and tax fraud charges are under consideration in Manhattan. In Fulton County, Ga., a special grand jury is investigating Trump’s interference in the 2020 election. In a Washington courtroom, U.S. District Judge Amit P. Mehta told a convicted Jan. 6 Capitol rioter that he was a pawn in a scheme by more powerful people, and the legal community is debating whether Trump’s seeming incitement of the insurrection has opened him up to criminal charges. The National Archives requested that the Justice Department open an investigation into Trump’s mishandling of top-secret documents that the government recently retrieved from his Florida estate. Trump still faces legal jeopardy for obstructing justice during Robert Mueller’s probe into Russian interference in the 2016 election (remember that one?). During the 2016 campaign, Trump allegedly orchestrated hush-money payments to Stormy Daniels (the charges that landed his handler Michael Cohen in prison referred to Trump as Individual #1). This list is hardly exhaustive and omits the dozen-plus civil lawsuits and civil investigations Trump faces.

In some cases, prosecutors would need to prove “intent” — a high bar. But it isn’t insurmountable; Trump’s words and deeds have demonstrated that his actions tend to be intentional. If an ordinary citizen had pressured Georgia’s secretary of state to “find” votes to overturn the 2020 election; systematically misrepresented the value of his assets to the IRS and banks; funneled money to silence a paramour; or put government documents down a toilet, this person would almost certainly be facing an array of criminal charges. More than a year after he left office, Trump isn’t facing any such thing yet.

The stakes are enormous. The rule of law, the notion that we are all equal under our criminal justice system, is among the noblest of principles but also the ugliest of myths. The question of putting Trump on trial before a jury of his peers is a test for a principle of democracy that has often proved out of reach for most Americans.

Historically, White and wealthy citizens have sometimes managed to avoid the consequences of their criminality. For decades, White mobs lynched and terrorized African Americans with impunity, and this legacy of a racist justice system, separate and unequal, looms over the debate about charging Trump. The system remains deeply unfair, biased against Black people and favoring the wealthy who are able to afford the best lawyers. Nonviolent drug offenses for the poor have resulted in decades-long prison sentences, while hardly any bankers stood trial for reckless and probably illegal activities that helped trigger the 2008 financial crisis.

With Trump in the White House, his friends and allies already had their own system of justice: Trump-loving Dinesh D’Souza (campaign finance violations), Trump-whisperer Roger Stone (witness tampering), Trump’s first national security adviser Michael Flynn (lying to the FBI), Trump campaign chairman Paul Manafort (tax fraud) and Trump son-in-law’s father Charles Kushner (tax evasion and witness tampering) are all convicted felons who received pardons from Trump or had their sentences commuted by him. Three of those convictions occurred during Trump’s presidency.

Now this unequal system of justice faces a crossroads. Any decision about prosecuting the former president centers on two conflicting fears: Inaction mocks the nation’s professed ideal that no one sits above the law — and Americans might wonder whether our democracy can survive what amounts to the explicit approval of lawlessness. But prosecuting deposed leaders is the stuff of banana republics.

The fear of the banana republic is hardly an idle one — and here Trump is a central figure, too. He has boasted of his willingness to go that route: In 2016, he ran by pledging that he intended to use the power of federal law enforcement to help his friends and pay back his enemies. His rallies routinely erupted with chants of “lock her up,” directed at his opponent, Hillary Clinton. When as president he told then-FBI Director James Comey that he should be “letting Flynn go,” he was doing as he had promised, using the presidency to try to save an ally from criminal investigation. Trump sees the law and law enforcement as a weapon: He wielded it to protect himself and rout his foes, as when his attorney general William P. Barr ordered the violent breakup of peaceful Black Lives Matter demonstrations near Lafayette Square. Trump has said that if he gets a second term, he would pardon hundreds of violent insurrectionists charged in the attack on the Capitol. More recently, his remarks about the investigation his administration began under special counsel John Durham suggest that he is still game to go after foes by wildly accusing them of crimes. Trump continually mischaracterizes the Durham investigation as having shown that Clinton’s aides “spied” on his campaign and his presidency, and he issued a statement saying that “in a stronger period of time in our country, this crime would have been punishable by death.” This was “treason at the highest level,” he said.

Of course, there’s also an appearance of impropriety when a Democratic elected official investigates Trump, lending a whiff of credence to the notion that politics sway prosecution decisions regardless of which side is doing it. Biden himself, before he was elected (and before Trump committed some of his most egregious misdeeds), said that prosecuting him would be a “very unusual thing and probably not very … good for democracy,” although he also promised to leave any decisions in the hands of the Justice Department. Indicting could trigger violence, spark a cycle of retribution once Republicans take back power, and erode yet another democratic norm.

But the far graver peril in this situation is inaction, a paralyzing refusal to hold Trump criminally liable for his behavior. The country has seen what happens when lawlessness triumphs; when some citizens feel they can do pretty much what they want with impunity. As historian Eric Foner has pointed out, in 1873, in reaction to the election of a biracial government in Colfax, La., a White mob assaulted the county courthouse, murdered a group of African Americans and seized control of the town government without substantial consequences. In 1874, in New Orleans, a white supremacist organization known as the White League tried to topple the state government (U.S. troops at least suppressed this riot). In 1898, long after Reconstruction, armed Whites overturned a duly elected biracial government in Wilmington, N.C. Because there was no law enforcement, no accountability and no consequences, such violence was condoned, sanctioned by the state and some leaders — which thus empowered anti-democratic forces for decades across the Deep South and elsewhere. (One of the impeachment charges against Andrew Johnson said he had fomented post-Civil War white supremacist violence in New Orleans and Memphis.)

Lessons from overseas also paint a bracing picture: Refusing to hold officials accountable for crimes emboldens them. Putting someone above the law is simply unsustainable for any mature democratic system. In the 20th century, Mexico’s long-time ruling Institutional Revolutionary Party refused to prosecute senior officials for corruption, choosing what three political scientists called “stability” in the political system over “accountability” in the legal one, and corruption became endemic. These scholars argue that nations transitioning toward democracy sometimes do better when they don’t prosecute former leaders and instead allow “democracy to take root.”

But the United States claims to be an advanced democracy. The costs of not prosecuting Trump have already been significant — and they’re already grounds for fear. Trump continues to stir up violence; he acts as if he remains untouchable. He praised the anti-public-health trucker convoy that shut down a key bridge linking Detroit to Ontario and has wreaked havoc in Ottawa: “I see they have Trump signs all over the place and I’m proud that they do,” Trump bragged to “Fox & Friends,” before suggesting that the truckers do the same in the United States, an even greater “tinderbox.” Trump’s acolytes take his cue. Sen. Rand Paul (R-Ky.) expressed his hope that the truckers would bring their mayhem inside America’s borders, while the Republican National Committee defended the police-beating armed rioters at the Capitol who sought to block Biden’s electoral certification by Congress as engaged in “legitimate political discourse.”

Although Trump has long sanctioned violence among his supporters — calling white supremacists in Charlottesville “fine people”; ordering the Proud Boys to “stand back and stand by”; urging a crowd to “march” on the Capitol and “fight like hell” to overturn the allegedly stolen election; tweeting “liberate Michigan” to followers a few months before a plot to kidnap and murder the state’s Democratic governor, Gretchen Whitmer, was discovered — the failure to prosecute Trump for any crimes he himself commits empowers him to do it louder.

Writing in the Atlantic, David Frum asked: “Will the politics of violence be accepted in the United States — or will it be punished and discredited?” Trump’s supporters are watching. After years of his burn-it-all-down oratory and above-the-law governance, they are emboldened. Like him, they see themselves as answering to an ideology, not to the laws. Like him, they claim to be fighting for freedom, even if their acts intimidate, harm and harass.

Not prosecuting Trump has already signaled to his supporters that accountability is for suckers. “The warning signs of instability that we have identified in other places are the same signs that, over the past decade, I’ve begun to see on our own soil,” political scientist Barbara Walter wrote in “How Civil Wars Start.” The signs include a hollowing out of institutions, “manipulated to serve the interests of some over others.” Trump’s continued ability to manipulate institutions to serve his interests and his supporters’ interests has eroded yet another democratic norm. “I have an Article II, where I have the right to do whatever I want as president,” Trump told the conservative organization Turning Point USA when he held the office. Until the criminal justice system stops him, he will continue to believe that.

Ford’s pardon of Nixon was noble in its intentions: He was trying to unite the country, and he expended political capital to issue it, ultimately losing his 1976 campaign largely as a result. And in fact the pardon never rehabilitated Nixon. Unlike Trump, Nixon left office severely weakened. His approval rating stood at 24 percent; comparatively few Americans were clamoring for him to make a comeback bid in 1976, and most Republican officials had abandoned him. He was never invited to another Republican convention. The “big lie” — that Democrats stole the election from Trump — has far more traction now than any Nixon-was-robbed sentiment had then. But Ford’s pardon still did damage: Nixon never had to face a jury, never had to pay for his crimes. In his post-presidency, he published books, made television appearances and consulted with other presidents.

These days, it’s fashionable to say the system worked after Watergate. But that’s not quite right. The system forced the president to resign his office, but it also protected the disgraced ex-president from criminal punishment. In 1974, Americans viewed the pardon as a blow to the rule of law. It’s not too late to learn from Ford’s mistake.

Matthew Dallek is a professor at George Washington University’s Graduate School of Political Management. His book “Birchers: How the John Birch Society Radicalized the American Right,” will be published next year.

 Image Credits: Jess Suttner / Washington Post