Tag Archives: Nixon

To Pardon or Not to Pardon – That Is the Question


Just over a year ago, I posted a piece entitled Going Along to Get Along. https://bit.ly/2UCmkTi The central theme was the criminal conduct of the Trump administration for which, I naively argued, “The time has come for a reckoning.” The impeachment proceeding was imminent. While I acknowledged the likelihood that the Republicans would continue to support Trump no matter what crimes he committed, I predicted that,

Impeachment, rarely used because it is so serious, is about holding to account a lawless regime that threatens to undermine the democratic republic that was created by the Constitution. If the case is properly made, the majority of Americans will support the action.

In that small regard, I supposed I was right. Trump was massively defeated in the 2020 election by more than 5 million votes and by the same number of Electoral College votes that Trump won by in 2016.

Yet, here we are, two weeks after Election Day and Trump continues to claim that “I WON THE ELECTION!” His legal team, “led” by Rudy Giuliani [I am not making this up], has filed and lost multiple lawsuits across the country. But those suits are only in states Trump lost. Apparently, Trump’s legal team has no quarrel with the vote counting in states he won. Many of the law firms involved have withdrawn their representation. All of the lawsuits have either been dismissed outright or rendered meaningless by either the complete absence of supporting evidence or narrowed so that even if validated, the ultimate election outcome will not be affected.

Trump had previously threatened that he would not recognize the election result if he lost and, in this one respect, he has kept his word. This has brought to the forefront the question whether, once Joe Biden is inaugurated, he should pardon Trump’s commission of federal crimes. At the risk of giving away the plot too soon, I think not. No pardon. Not ever. Here’s why.

I will use as my guidepost in this argument a provocative think-piece published on Nov. 17 by Michael Conway, former counsel to the  U.S. House Judiciary Committee, entitled “Why Biden Should Pardon Trump – and We Democrats Should Want Him To.” https://nbcnews.to/3lB4NGN Mr. Conway was counsel for the House Judiciary Committee in the impeachment inquiry of President Nixon in 1974. He is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago. His views are seriously presented and worthy of consideration.

The rationale offered by Mr. Conway is simply that a pardon for Trump’s multiple federal crimes is necessary if the nation is to heal from the four years of division, fear-mongering, racism, misogyny, hatred and other despicable qualities exemplified by the Trump administration and its enablers and supporters.

That is a heavy load for a pardon to carry, especially considering that, as Mr. Conway rightly recognizes, a presidential pardon would give Trump no legal protection from state crimes provable on the same facts. Conway’s argument also acknowledges that Trump is undeserving:

Trump would, of course, be one of the least deserving recipients of a federal pardon in history. His pardon could not be justified based on his innocence or his contrition because Trump is not contrite; to the contrary, he is currently endangering our democratic processes by relentlessly undermining the legitimacy of Biden’s election and thwarting a peaceful transition.

That said, the argument for a Biden pardon is based on several distinct ideas:

  • A pardon necessarily indicates an admission of guilt;
  • Exposure for prosecution under state law would continue;
  • State prosecutions would not be “laid at Biden’s doorstep;”
  • Biden can show he’s better than Trump by declining to do what Trump tried to do: use his administration to punish political adversaries [“lock her up!”]
  • American democracy would be undermined if we accept the prosecution of political opponents;
  • Declining to prosecute Trump will assuage some of the anger of Trump’s supporters who, however wrongly, believe he was cheated out of a second term;
  • Pardoning Trump will help “heal the nation” and prevent an “ongoing cycle of retribution” as political control inevitably cycles;
  • Precedent exists in President Ford’s pardon of Nixon;
  • Prosecuting Trump would enhance his martyr status among followers, add to partisanship and could “even lead to civil unrest.”

That is as strong an argument for a pardon as I can imagine. Here’s why I think it’s wrong.

  • The admission of guilt would be “by operation of law,” but Trump would continue to argue that he was unjustly punished in various ways, especially in light of (2) under which he would continue to be exposed to state prosecutions, especially in New York;
  • Avoiding the “onus” of prosecution for Biden is of low value in the scheme of things, considering the scale and gravity of Trump’s crimes; protecting the incoming president from responsibility for enforcing the law is not a good reason to pardon;
  • We already know to a certainty that “Biden is better than Trump” as a moral force and as an empathetic leader;
  • Avoiding further blows to democratic institutions is a serious point, but democracy has already been severely undermined by Trump’s conduct, as well as that of the Republicans who enabled him;
  • Protecting Trump from federal prosecution is unlikely to assuage the anger of his most ardent followers who, we have learned to our everlasting sorrow, are totally disconnected from normal emotional responses to truth/facts/reality; assuaging their “feelings” is a fool’s errand – it just won’t work;
  • True that there is precedent but for many the Nixon pardon remains, after all these years, a very sore spot indeed; there is little juice behind the precedent argument;
  • In sacrificing the “healing” opportunity, we likely do increase the risk of more partisanship and the possibility of “civil unrest,” but those risks will exist even in the face of a federal pardon if, for example, New York prosecutes Trump for state crimes;

Moreover, pardoning Trump does not achieve the intended goal of peace with the Trump family writ large. There is likely evidence, known or to be uncovered after January 20, that members of the immediate family are guilty of multiple crimes as well, including conspiracy, obstruction of justice, destruction of federal property/records, money laundering and others perhaps even worse. Trump and his followers are not going to take well to facing such charges even if the capo is pardoned.

Finally, pardoning Trump would send the signal that the more crimes you commit and the more outrageously you behave, the better your chance of a pardon. American democracy has been shaken to the core by the four years of Trump’s mal-administration. This outcome of a pardon would tell the next unprincipled demagogue that “anything goes,” because the worse you are, the greater the likelihood you’ll walk free and clear with the loot you have acquired.

I readily confess that some of my thinking about this is driven by the belief, reluctantly reached, that Trump’s acolytes among the general population (he received more than 73 million votes at last count) are not going to be satisfied regarding Trump’s treatment, regardless of the generosity accorded him, They may be forced “underground” again, where, we have learned, they subsisted and persisted all the time many of us thought we had entered the post-racial world heralded by the election (twice) of Barack Obama. But they won’t be “gone;” they won’t likely experience some profound awakening of empathy and generosity toward others; Whatever the “solution” for those people is, I am constrained to believe that a pardon of Donald Trump is simply not relevant to the factors that motivate them.

In the end, perhaps, it can be concluded that I am more a “law and order” person than Trump’s most ardent fans. I believe in the principle that a properly functioning society needs a “just system of justice” that includes the goal of deterring the highest forms of white color crime, the types of crimes committed most egregiously, and often in the open, by Trump and his family and friends. Accountability is essential to prevent demagogues from becoming the norm of our political life. One important lesson from the Trump ascendancy in American politics is that our frequently sneering disrespect for “banana republics” could very readily become an apt description of the United States if we do not insist on full accountability from our leaders.

The harshest lesson, I think, is that we are not really who we thought we were. American aspirations and reality do not mesh as we had believed. That does not mean, however, that we should reject our aspirations. On the contrary, and as Joe Biden’s election has reminded us, we can and must continue to aspire to a higher calling for our country. We have the choice to make: despair that we have fallen short or renew our commitment to making a better and more just society for all who live here. Pardoning Donald Trump will not help us do better.

This position does not mean that every last drop of retribution must be exacted. The pandemic must be the top priority. Restoration of relations with allies is also critical to our national security. And, obviously, I think, action to aggressively address climate change is essential to our survival as a functioning species. Trump and his family can stew in the uncertainty of their ultimate fate until it is appropriate to take up their crimes, a day that will come all the sooner if Trump continues his insistence that he will hold office against the will of the people, as expressed in the 2020 election. If he wants to be drug physically from the White House, that can be arranged, in which case the day of reckoning will come even sooner. That choice is, to a degree, his to make. His family should recognize that truth, at least, and urge him to stand down. Either way, he must go.

 

Force Trump to Plead the 5th Amendment

Shortly after Brett Kavanaugh, with full support from the Republicans on the Senate Judiciary Committee, stonewalled on all the important questions put to him, and may have lied about others, the news arrived that Trump’s attorneys have advised that Trump will not respond to questions from Special Prosecutor Robert Mueller in any manner, oral or in writing. This latest zigzag in Trump’s position regarding the Russia investigation may be a direct result of Kavanaugh signaling that nothing Trump does could lead Kavanaugh, as a Supreme Court Justice, to decide in favor of presidential accountability while in office.

Given that the Republicans have once again prevented the Senate from fulfilling its constitutional mission of advising and consenting to a presidential appointment to the highest court, it seems to me it is time to call the question on the bigger questions related to presidential accountability. It is time, I suggest, that Mueller should stop fooling around with Giuliani and camp and subpoena Trump to testify under oath about the Russia collusion issues before a grand jury. This would, of course, expose Trump to huge risks that he would perjure himself, further establishing the existence of “high crimes and misdemeanors,” the Constitutional threshold for impeachment. For that reason, among others, Trump would undoubtedly refuse to comply with the subpoena and the issue would then be put to the courts.

If, as is almost certain, Brett Kavanaugh is confirmed and the issue reaches the high court, which it will, Kavanaugh will be faced with the non-hypothetical question whether he will recuse himself from a decision regarding the power of the presidency to stand above the laws that apply to every other person in the country. Having just vanquished a king to gain the freedom of a new country through the Declaration of Independence and the Constitution, it is quite unimaginable that the Founding Fathers intended such immunity. Nevertheless, the issue has not been decided by the Supreme Court. It is also hard to imagine a better case to present the issue than one in which the nation’s chief executive declares that he is not accountable to even testify about his possible corrupt obstruction of justice and interference in the election that placed him in office. This is likely the best case that will ever exist for getting a ruling that the president is not above the law.

Of course, the president would have the ability to avail himself of the protection against self-incrimination afforded other citizens under the 5th Amendment. To avoid incriminating himself,

Trump would almost certainly be advised by his attorneys to plead the 5th Amendment in response to all questions put to him by Mueller’s investigators.

Imagine for a moment that Trump is asked direct questions about his knowledge of contacts with Russians, cooperation with Russians and more regarding the suborning of the election that we know to have occurred in 2016. He has four choices.

One, tell the truth. That’s probably not a good choice for him since the publicly available information strongly suggests his active complicity in the Russian election activities. We don’t know what Mueller knows but neither does Trump. In any case, truth-speaking is not his style, especially when it will make him look bad, so telling the truth is likely off the table.

Option Two, lie. This is the course he would be most tempted to take since he, and this is thoroughly and incontestably documented, lies multiple times a day about all manner of things, great and small. Telling lies about his conduct in this situation would expose him to a perjury charge, however, not a place he would want to be. Recall that he does not know what Mueller knows and can prove. Trump’s attorneys would be, indeed have said they are, so concerned about Trump’s propensity to fabricate that they would likely insist that he take Option Three.

Option Three, plead the 5th Amendment. Refuse to answer “on the grounds that answering may incriminate me.” Under American law, pleading the 5th does not constitute an admission of guilt and pleading may not by itself be the basis for a finding of guilt. In the minds of many members of the public, however, a president pleading the 5th Amendment on matters of this seriousness would be tantamount to a confession.

Option Four, refuse to appear for questioning. This might be seen as the “nuclear option,” whereby the president says, in effect, “I refuse to be held accountable and will not cooperate in the process that is trying to destroy me.” This question, I believe, was decided by the Supreme Court in United States v. Nixon, 418 U.S. 683 (1974), a unanimous decision by the eight Justices participating (Justice Rehnquist did not participate). The opinion upheld a subpoena directing the president to produce to a grand jury certain tape recordings and documents relating to his conversations with aides and advisers. The grand jury’s prior indictment of seven people had named the president as an “unindicted coconspirator” in defrauding the United States and obstructing justice.

Trump’s attorneys would certainly argue that the Nixon decision was “distinguishable” from the Trump case. That is one of an attorney’s jobs and there is no doubt Trump’s lawyers would present the question to the courts, which would then make the final decision regarding the scope of the president’s immunity from the legal processes that apply to everyone else. To simply refuse to cooperate would, I think, not only create a “constitutional crisis,” but it would go a long way to weakening Trump’s political support in Congress.

I do not suggest, of course, that all Trumpers would turn on him in these circumstances. For reasons not fully understood, there apparently are millions of people who are so entranced by the Trump persona that nothing he does or says, or fails to do or say, will change their view of him. But they are already a minority of the voting population and, I suggest, the president taking the 5th Amendment on questions related to subverting the American electoral process or, worse, simply refusing to cooperate, would move many voters across the line. Unmoved though they may be by the reality that Trump supports policies directly injurious to their economic, social and physical well-being, many of those at the margin of acceptance would finally say “enough.” We don’t need them all to achieve a massive reversal in the polity in favor of reason and the rule of law. If, on the other hand, I am wrong about this, we are probably no worse off than before but we will have a better understanding of where the law stands on these issues and can take whatever actions are then necessary and appropriate.

Therefore, I submit, it is time to call the question on Trump. Time to force him to choose between telling the truth, lying, pleading the 5th Amendment or simply declaring “I am above the law.”