"SE PROMENER D'UN PAS AGILE AU TEMPLE DE LA VÉRITÉ LA ROUTE EN ÉTAIT DIFFICILE" VOLTAIRE
février 4, 2023
For the past week, Republican snowflakes have been having a meltdown over the FBI’s search of former president Donald Trump’s Florida residence for classified documents he took while leaving office. The MAGA legions darkly suggest that tyranny looms if FBI agents can treat a former president like a normal criminal suspect.
For anyone familiar with how other democracies from France to South Korea have indicted, convicted and even imprisoned former leaders, this is more than a little strange. Where do Republicans get the idea that a former president should be above the law?
It all goes back, I suspect, to Richard M. Nixon, the first president caught red-handed breaking the law. Watergate special prosecutor Leon Jaworski concluded that “there is clear evidence that Richard M. Nixon participated in a conspiracy to obstruct justice by concealing the identity of those responsible for the Watergate break-in and other criminal offenses.”
Yet the special counsel was prevented from indicting Nixon while he was in office because Nixon’s own Justice Department held that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” That opinion was conveniently seconded in 2000 by Bill Clinton’s Justice Department when he was under threat of a potential indictment from the Whitewater independent counsel, Kenneth W. Starr. It was then cited by special counsel Robert S. Mueller III in 2019 as grounds for not prosecuting then-President Trump for likely obstruction of justice.
No court has ever ruled that a president cannot be indicted, and some eminent scholars dispute that finding, but the Justice Department has acted as though this conclusion were holy writ. That means that the only way to hold a sitting president accountable is via the impeachment process. But Trump was impeached twice and acquitted both times because senators of his own party ignored overwhelming evidence of his guilt.
If you want to know why Trump thought he could get away with inciting an assault on Congress on Jan. 6, 2021, I would submit that part of the reason was his previous success in beating the rap for trying to extort the president of Ukraine. Then, after having been acquitted of “high crimes and misdemeanors” in connection with the Jan. 6 attack, he felt free to leave Washington with classified documents. Just imagine what he will do in the event he returns to office. I doubt our democracy would survive another Trump term.
Surely, you might think, Trump would finally be held to account now that he is no longer in office, but another Nixon precedent has created an implicit assumption of immunity even for ex-presidents. On Sept. 8, 1974, a month after being sworn in, President Gerald Ford granted Nixon a “full, free and absolute pardon … for all offenses against the United States which he … has committed.” This was his way of putting the Watergate scandal — “our long national nightmare” — behind us.
Ford was pilloried for his decision. His approval rating plunged 21 percentage points overnight and never recovered. Yet even many of those most critical at the time — including Ted Kennedy, Bob Woodward and former Watergate prosecutor Richard Ben-Veniste — later concluded that Ford was a “decent and honorable man” who had done the right thing after all. Ford even won the 2001 Profile in Courage Award from the John F. Kennedy Presidential Library and Museum for letting Nixon off the hook.
Well, I humbly submit, it’s high time to rethink Ford’s decision to pardon Nixon along with the Justice Department’s decision to grant Nixon immunity from prosecution while in office. Both decisions should be recognized as historic mistakes whose toxic fallout still poisons our democracy.
Things might look very different today if Nixon had gone to the slammer instead of escaping the wreckage of his presidency to rehabilitate his reputation and win acclaim as an esteemed elder statesman. He was a crook and should have been treated as one. The kid-gloves treatment Nixon received created an expectation of criminal impunity for both sitting and former presidents that leads Republicans to think that it’s an outrage for Trump to be probed by prosecutors, no matter how many laws he might have broken.
Republican partisans are absolutely right that it’s unprecedented for the FBI to search a former president’s home — just as it would be unprecedented to indict a former president. But it shouldn’t be. Any current or former president who commits a crime should face the consequences. In this case, if a jury concludes that the orange man broke the law, he should wind up in an orange jumpsuit.
Attorney General Merrick Garland is receiving horrific abuse, but he is doing the right thing — the long overdue thing — by pricking the bubble of presidential impunity. Republicans who suggest that the FBI search turns us into a “banana republic” have it backward. Allowing Trump to escape accountability is the real threat to our democracy.
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