President Gerald Ford’s pardon of Richard Nixon after the Watergate fiasco no doubt helped Jimmy Carter win the 1976 election. But Ford was right then and right now. A former president in the docket would have been devastating to the nation.
Today, that possibility would be catastrophic. But make no mistake: Donald Trump could face prosecution over January 6. The charge could be far more serious than inciting a riot which would be very difficult to prove in a court.
Trump’s legal problem stems not from Democratic allegations but his and former Vice President Mike Pence’s lawyers; two judges; former Attorney General Bill Barr.; and other witnesses who will testify in the remaining House Select Committee’s televised hearings. And Trump’s possible legal problems are not his alone. President Joe Biden could be swept in them as Gerald Ford was forty-eight years ago as to whether to prosecute or to pardon a former president.
How serious are the possible charges against the former president? US District Court Judge David Carter in a case involving former Trump attorney John Eastman concluded Trump “more likely than not corruptly attempted to obstruct Congress.” Retired Republican-appointed Court of Appeals Judge Michael Luttig declared in testimony that Trump was “a clear and present danger to democracy.”
President Joe Biden could face impossible decisions making Ford’s pardon of Nixon seem trivial.
Trump deputy White House Counsel Eric Herschmann strongly recommended to Trump attorney John Eastman that he hire the “best criminal attorney” he can find. Former Attorney General Bill Barr testified he repeatedly warned the then-president that believing the election was stolen was “nonsense” and “bullshit.” And the evidence so far, if proven correct, could make the case that Donald Trump not only attempted to subvert the government. By his actions, he meant to overthrow it. This bombshell has been obscured by a focus on Trump’s role to incite the riot. Rioters testified how the then-president “summoned them” to Washington to reverse the stolen election by force if necessary. No doubt, Trump’s actions certainly facilitated, if not provoked, the large crowds to assemble on the Mall and march on the Capitol that fateful day. But can guilt be established beyond a reasonable doubt in a court of law? Probably not.
As a former prosecutor and New Jersey Governor Chris Christie observed, if a case is to be made against a president, it cannot be a “swing and a miss.” It must have a 99.999% or higher probability of obtaining a guilty verdict. And any Department of Justice is well aware of that standard.
The most chilling possibility is a question. Given Trump attempted a coup and had a plan to overturn the election and in essence overthrow, the government illegally, does that amount to sedition? 18 U.S.C 2384 defines the crime of sedition as conspiring to “overthrow the government of the United States…” or opposing by force the “authority of the United States government…the execution of any law..…”
The evidence is very strong. But the ramifications are staggering. The divisions in the nation are such that a large fraction of Americans would fiercely protest a trial of a former president over an election they thought won the election. Other forms of January 6 levels of violence almost certainly would break out probably countrywide. A national state of emergency could be declared with horrendous consequences.
Hence, President Joe Biden could face impossible decisions making Ford’s pardon of Nixon seem trivial. First, how would Biden deal with the Justice Department if it embarked on a criminal investigation of Trump’s conduct surrounding the event of January 6? Second, how would Biden deal with an indictment were one forthcoming? And last, if a trial were to be held, would the White House be capable of preventing the proceedings from disintegrating into a national nightmare?
All this is speculative. However, as the leak of a Supreme Court draft memo on Roe v Wade has set the stage for a potential political explosion, trying a former president would elevate such a spectacle to thermonuclear proportions. What can be done?
Few people have realised how potentially dangerous the findings of this Select Committee could prove. Would President Biden preempt them by offering Trump a pardon or the equivalent of a “plea bargain” by not prosecuting should the former president agree never to run for office. And could that be binding?
Is a nation wracked with Covid; massive inflation and soaring gas prices; a war in Ukraine that could escalate; and other ticking time bombs capable of withstanding perhaps the greatest political crisis since the Civil War? For certain, no one knows.
The writer is a senior advisor at Washington, DC’s Atlantic Council and a published author.