Nixon v. Trump: Pardon v. prosecution

President Gerald Ford’s pardon of former President Richard Nixon is increasingly being cited as relevant to whether or not U.S. Attorney General Merrick Garland should prosecute former President Donald Trump for any crimes he may have committed related to the violent attack on the Capitol on Jan. 6, 2021. The comparison, however, is a false one and should have no bearing on Garland’s decision.

A pardon is an inherently political act, while a prosecution is an act of law enforcement. I’ve worked at that intersection where the political and legal worlds bump up against each other — first, as leader of the Watergate and Cover-up Task Force on the staff of the U.S. House Judiciary Committee Impeachment Inquiry in 1974, and later, as counsel to former New York Gov. Mario Cuomo. It’s vital to recognize and maintain the separation of the two considerations.

In Nixon’s case, the two became intertwined in a way that muddies the water. Initially, Ford said he would not decide on whether to pardon Nixon until there had been at least an indictment and perhaps a conviction. He then realized that he would face unending questions on the topic if he waited to act, so he acted preemptively just one month after Nixon’s resignation.

Ford justified his pardon as being good for the country, writing in his proclamation that “the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States.” 

That political judgment about the current and future state of domestic tranquility is well within the competence of a president to make when exercising the pardon power, but it is not a relevant consideration for a grand jury considering indictment or a prosecutor charged with enforcing law.

Watergate Special Prosecutor Leon Jaworski wrote a memoir on the prosecution of Watergate. In it, he wrote that, prior to the pardon, all of his staff members who expressed a view favored Nixon’s indictment.

Jaworski cites with approval — and as representative — a memorandum prepared by staff attorney George Frampton, who wrote, “[T]here is no established framework — no publicly-accepted set of criteria — within which to make your decision except the traditional one of a prosecutor. Familiar factors of prosecutorial discretion, of course, uniformly dictate prosecution here.” Frampton noted that it is a core principle that charges be pursued “without political influence or political considerations but with regard only for the truth.” Jaworski doesn’t say whether, absent the pardon, he would have prosecuted Nixon.

Similarly, Garland repeatedly has made clear that the starting — and most often ending — point for a prosecutor is to “follow the facts and law wherever they lead.” Yet the potentially divisive political ramifications of prosecuting a former president remain prominent in public discussion. Once again, the political and legal considerations bump up against each other. 

The primary consideration, however, should be the ability to prove the guilt of the accused. Nixon’s guilt for obstruction cannot be doubted. The infamous “smoking gun” tape made clear that he personally directed his aides to engage in a cover-up of high-level White House and reelection committee involvement in the Watergate break-in. 

The evidence against Trump is still unfolding through the work of the January 6^th Committee of the U.S. House of Representatives. What is unquestionable is that, for the first time in American history, there was a failure to transition power peacefully following a presidential election. The political and legal worlds clashed violently, as Trump and his supporters sought to overturn the outcome of a free and fair election.

Some have questioned whether Trump could receive a fair trial, given the amount of pretrial publicity, thereby raising a political concern about the legal process. But that process should not be denigrated to promote a desired political outcome. Jury selection would exclude those who lack an open mind on whether Trump might be guilty.

Others have questioned whether a conviction could be obtained in the District of Columbia where he would be tried. Given the evidence already public, the likelihood that Trump would be acquitted seems remote. A hung jury is a clear possibility. That risk would be reduced if the prosecution’s theory of the case did not turn on whether Trump in fact believed that the election had been stolen.

Ultimately, the legal decision should not be based on politics — whether concern over the divisiveness that might result, or accusations of potential unfairness, or worries about the judicial outcome. Political and legal considerations should be kept separate. Garland lacks the right and power to grant Trump a de facto pardon, if he is charged with a crime. The strength of the legal case should determine any prosecution.

Evan A. Davis, an attorney, is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).