How Gerald Ford's pardon of Richard Nixon paved the way for Donald Trump: conservative columnist

15 August 2022

On September 8th, 1974, then-President Gerald Ford pardoned his predecessor Richard Nixon "for any crimes that he might have committed against the United States." Ford claimed at the time that his decision to grant clemency to Nixon, who resigned on August 9th amid the Watergate scandal, was necessary to help the country heal from "our long national nightmare." It was deeply unpopular with the American public and ultimately led to his defeat to Democrat Jimmy Carter in the 1976 election.

Ford's legacy-defining act was based on a memo that the Department of Justice authored as Nixon's troubles mounted. It stated that "the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions."

By clearing Nixon of wrongdoing, Ford established a de facto precedent that sitting and former presidents should be immune from prosecution – other than impeachment by Congress – for crimes that were committed while they were in office.

On Monday, conservative columnist Max Boot explained in a Washington Post editorial how the consequences of Ford's singular act have reverberated in the decades and administrations that followed.

"That opinion was conveniently seconded in 2000 by Bill Clinton’s Justice Department when he was under threat of a potential indictment from the Whitewater independent counsel, Kenneth W. Starr," Boot recalled, adding that it was also cited by Special Counsel Robert Mueller when he determined in his 2019 report on Russian interference in the 2016 election that former President Donald Trump had committed multiple acts of obstruction of justice. As with Nixon and Clinton, Trump's incumbency shielded him from legal culpability.

Boot pointed out that "no court has ever ruled that a president cannot be indicted, and some eminent scholars dispute that finding, but the Justice Department has acted as though this conclusion were holy writ. That means that the only way to hold a sitting president accountable is via the impeachment process. But Trump was impeached twice and acquitted both times because senators of his own party ignored overwhelming evidence of his guilt."

Boot believes that "it’s high time to rethink Ford’s decision to pardon Nixon along with the Justice Department’s decision to grant Nixon immunity from prosecution while in office. Both decisions should be recognized as historic mistakes whose toxic fallout still poisons our democracy" as the scope of Trump's alleged illicit behavior during his term continues to surface.

"Things might look very different today if Nixon had gone to the slammer instead of escaping the wreckage of his presidency to rehabilitate his reputation and win acclaim as an esteemed elder statesman," Boot continued. "He was a crook and should have been treated as one. The kid-gloves treatment Nixon received created an expectation of criminal impunity for both sitting and former presidents that leads Republicans to think that it’s an outrage for Trump to be probed by prosecutors, no matter how many laws he might have broken."

The Federal Bureau of Investigation's execution of a search warrant at Trump's Mar-a-Lago resort in Palm Beach, Florida last Monday – along with the revelations that agents were searching for top-secret documents relating to nuclear weapons and that Trump is suspected of having violated the Espionage Act – have enraged Republican lawmakers and right-wing pundits.

Trump himself has issued a blizzard of complaints on his Truth Social app that he is a victim of political persecution by Attorney General Merrick Garland, who personally approved the Justice Department's request for the Mar-a-Lago warrant.

While Boot conceded that "Republican partisans are absolutely right that it’s unprecedented for the FBI to search a former president’s home — just as it would be unprecedented to indict a former president," he stressed that "it shouldn’t be. Any current or former president who commits a crime should face the consequences. In this case, if a jury concludes that the orange man broke the law, he should wind up in an orange jumpsuit."

Boot closed his piece in defense of Garland, who "is doing the right thing — the long overdue thing — by pricking the bubble of presidential impunity."

He concluded that "Republicans who suggest that the FBI search turns us into a 'banana republic' have it backward. Allowing Trump to escape accountability is the real threat to our democracy."

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