Trump v. Nixon: When prosecution is in the public interest

Forty-eight years ago today, Richard Nixon resigned the presidency. That act set off a discussion within the Special Prosecutor’s Office as to whether he should be prosecuted, a debate that ended a month later with the pardon issued by President Ford. As the debate continues today about whether Donald Trump should be prosecuted for his efforts in 2021 to prevent a peaceful transition of power, it is useful to look back at some of the factors that were considered in 1974.

Some of those in the Special Prosecutor’s Office considered the answer not subject to debate.  The evidence of Nixon’s guilt of obstructing justice was clear: the evidence was on recordings. Others were being prosecuted for this crime, and since he was a former president, the legal issues associated with a sitting president were no longer present. This view was that to treat Nixon differently violated the fundamental principles of equal justice — no one is above the law.

In memoranda to Special Prosecutor Leon Jaworski, I took a different view. I agreed that the evidence of guilt was sufficient to prosecute. I also agreed that not prosecuting Nixon risked creating a double standard inconsistent with principles of equal justice. But I also believed that it was appropriate for us, as prosecutors, to consider whether prosecuting Nixon would be in the public interest. The country had been obsessed with Watergate for several years, and a prosecution would continue that obsession for years more, and potentially prevent focus on important issues confronting the country. 

Given these two competing considerations, I recommended deferring a decision to allow time, and the emotions of the moment, to pass. I also argued that an immediate decision to prosecute inevitably would lead to significant undesirable delays in the trial of Watergate defendants who had been indicted already. Since they included a former attorney general, a former White House chief of staff and the president’s former chief domestic policy adviser, proceeding against them was not unfair, regardless of the decision involving Nixon.

What does this mean in deciding whether to prosecute Trump? First, assuming that others involved in orchestrating efforts to prevent a peaceful transfer of power are prosecuted — which, based on the public record, seems likely — then promoting the concepts of equal justice and that no one is above the law plainly favors Trump’s prosecution.

Turning to the public interest argument, the facts today are different. In 1974, Nixon had resigned the presidency after near-total loss of support from Republicans in the House and Senate; he was returning to California with no prospect that he could ever return to the political stage. The facts today are the opposite. Trump persists in actively seeking to undermine the legitimacy of the 2020 election, is very much present on the political stage. A number of elected officials or candidates continue to parrot his claims about a “stolen election.” Not prosecuting Trump puts nothing behind us and does not, as would have been the case in 1974, allow the country to move past the trauma of recent years.

Some may argue that prosecuting Trump will only add to the dangerous divisiveness in America today. That may be a risk, but not doing so would pose similar dangers. And equally important in weighing the national interest is that the offense here is far more serious than the crimes Nixon committed. It does not minimize the seriousness of Nixon’s obstruction of justice to say that actively working to undermine our democracy by preventing the peaceful transfer of power to a winning presidential candidate is far more serious.

That leaves the last factor to be considered: the strength of the evidence. It is not enough to say that there is enough evidence to bring a case; prosecutors must believe they have sufficient evidence to feel confident they can achieve a conviction. In 1974, the prosecution decision was going to be made by a special prosecutor, not an attorney general appointed by the president. 

In this case, Attorney General Merrick Garland — perhaps believing that as a former judge of the Court of Appeals he would be perceived as above politics — has chosen not to appoint an independent counsel. That decision can be questioned. There may be no question about Garland’s integrity and the non-political nature of his career, but because President Biden appointed him, there will be questions about his impartiality. Thus, it would be prudent, even at this late stage, to appoint an independent counsel — not to re-do the investigation or appoint a whole new set of line prosecutors, but to assess the evidence to determine its sufficiency, direct any additional investigative actions, and make the final prosecution decision.

While it may be difficult to find someone of sufficient stature and independence who has not already voiced an opinion about Donald Trump, it is worth trying to do so. Any decision will be controversial, but it is worth doing whatever can be done to promote as widespread acceptance as possible.

Richard J. Davis served as an assistant Watergate special prosecutor and task force leader.