Humiliated and disgraced, President Richard Nixon resigned from office in 1974, facing certain impeachment and conviction. In contrast, former President Trump was twice impeached but, when asked in February 2021 if he would run again for president, replied, “It’s too early to say.” The two differing weights given to impeachment hold profoundly different implications for law enforcement in the wake of their respective presidencies.
In the case of Nixon, the impeachment process imposed constitutional punishment for “high crimes and misdemeanors.” While he was never impeached, the prospect of imminent impeachment — with overwhelming bipartisan support — forced his resignation. Those of us who worked on the Nixon impeachment inquiry staff told each other that the system had worked. The country seemed to feel the same.
For Trump, impeachment has produced not shame but a battle cry — and even a political future. He called his historic second impeachment “yet another phase of the greatest witch hunt in the history of our country.” Commenting on the prospects of a 2024 presidential run, he said, “I have tremendous support, and I’m looking at poll numbers that are through the roof.” Although his conduct was arguably worse than Nixon’s cover-up of a failed break-in, impeachment has not proved a deterrent, and the system so far has not worked.
With Nixon, the question of what to do next was answered by his successor, President Gerald Ford. Given Nixon’s forced resignation, Ford granted him a pardon from any legal liabilities to reinforce the assurance that “our long national nightmare is over.” I and many others on the impeachment inquiry staff supported the decision to pardon Nixon. It was time to bring the drama to an end and take Nixon’s humiliating departure as punishment enough.
Nixon also was disbarred by the State of New York in 1976, and he resigned from the California bar and the U.S. Supreme Court bar. Public anger with Nixon remained so severe, however, that Ford’s approval rating dropped by more than 20 points following the pardon. Ford subsequently lost the presidential election in 1976.
Trump’s response of defiance and speculation about another presidential run begs the question: How, then, should the law be enforced? Three primary options exist:
One option is civil litigation. The NAACP and Rep. Bennie Thompson (D-Miss.) filed a civil lawsuit against Trump and several others on Feb. 16, 2021, under an 1871 reconstruction statute barring conspiracies to prevent federal officials from discharging their duties by the use of force, intimidation or threat. Suits seeking to hold Trump and others jointly liable for injury or death on Jan. 6, when rioters overtook the U.S. Capitol, may also be brought. But the Federal Tort Claims Act precludes liability for the president if he was acting within the scope of his employment, and that could pose a substantial legal obstacle in my experience dealing with litigation involving the statute. One the one hand, a strong argument can be made that Trump played a pivotal role in inciting the Jan. 6 riot; on the other hand, the courts may well read the statute broadly to include even false and reckless political speech within the scope of a president’s employment.
Another option is a congressionally appointed commission and investigation. House Speaker Nancy Pelosi (D-Calif.) has announced that a 9/11-style commission will investigate the Capitol riot and should have subpoena power. Indeed, it is likely that a bipartisan commission can effectively address issues of Capitol Hill security. But the prospects for an objective study of presidential accountability seem quite uncertain. The commission’s work also could be prolonged, and the noise around it quite distracting.
Convening a grand jury to investigate possible violations of federal criminal law is another option. Grand juries operate in secrecy and allow for quiet investigation. Another advantage of a grand jury is that, under the U.S. Supreme Court decision in United States. v Nixon, courts give the greatest deference to grand jury subpoenas when considering claims of privilege.
In Trump’s second impeachment, the House of Representatives charged him with the crime of incitement to insurrection under Section 2383 of the U.S. Criminal Code, but the case law governing a prosecution under this section is quite restrictive and proof of intent to provoke violence is often needed. There is, however, another section of code that is clearly relevant: Section 372 covers a “conspiracy to impede or injure officer.”
Like the civil conspiracy statute cited in the NAACP suit, this section bars a conspiracy by two or more persons “to prevent, by force, intimidation, or threat” any federal officer from discharging any duties of his or her office. It also makes criminal a conspiracy “to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed.” This second prohibition is applicable, as the Constitution requires the electoral vote to occur in a joint session of Congress at the Capitol.
Because Section 372 is a criminal statute, proof of intent is required. But the government would not be required to show an intent to provoke violence. It would be enough to prove knowledge of and willful participation in the conspiracy to disrupt and block the vote count.
Nixon escaped criminal prosecution with Ford’s pardon but did endure the shame of a resignation unique in U.S. history, as well as disbarment. Trump so far has received no punishment at all. The process of enforcing the rule of law is still at hand.
Evan A. Davis, an attorney, was a member of the U.S. House Judiciary Committee Impeachment Inquiry staff in 1974 and led the Watergate and Cover-up Task Force. He also is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).