Just a few weeks ago, the question seemed almost preposterous: What should happen to the federal prosecutions of Donald Trump if he is defeated in November? Today, it might be premature to imagine a President Kamala Harris grappling with whether to allow the cases against Trump to go forward or whether, before or after any convictions, to grant him a pardon.
By Ruth Marcus
But this is a discussion worth launching now, in part because, as the prospect of a Harris victory comes into focus, there could be a “long national nightmare” impulse to put all things Trump in the rearview mirror. Under more ordinary circumstances, in more ordinary times, my sympathies would tend toward such calls for national reconciliation, the sentiments that animated Gerald Ford, 50 years ago next month, to pardon Richard M. Nixon.
In pardoning Nixon, Ford invoked the continued suffering of Nixon and his family, along with Nixon’s years of public service, but said his decision was driven by the need for national healing.
In retrospect, that decision looks wise and selfless. But it’s not the right template for thinking about Trump. Harris should allow special counsel Jack Smith to proceed with his prosecutions against the former president, or what’s left of them after the Supreme Court’s ruling on presidential immunity. If Trump is convicted and the conviction is upheld, Harris should not use her power to pardon Trump or commute his sentence.
Why? What’s the difference between Ford and Nixon then and Harris and Trump in a not-so-theoretical future?
First is the matter of consequences for bad acts, something that Trump has magically managed to avoid for most of his 78 years. Short-circuiting his prosecutions or upending his convictions would be the maddening capstone to a life of evading responsibility for wrongdoing.
A sitting president can’t be prosecuted, under long-standing Justice Department policy, so the findings by special counsel Robert S. Mueller III that Trump might have committed 10 acts of obstruction of justice went nowhere. The House of Representatives voted twice to impeach Trump, but the Senate failed to convict — the second time largely because Republican senators (and Trump’s own lawyers) pointed to the prospect of criminal prosecution for efforts to interfere with the election results. Then the Supreme Court carved out a broad sphere of immunity for Trump, jeopardizing at least part of Smith’s prosecution.
When it comes to Trump, accountability is a can endlessly kicked down the road. That’s not in the interest of justice — and it sets a bad precedent for future presidents. We can hope that it doesn’t take the threat of criminal consequences to dissuade presidents from wrongdoing, but rules and laws without consequences are meaningless. And the charges against Trump — that he plotted to overturn election results and obstructed justice to improperly retain classified documents — involve serious misconduct that calls out for enforcement.
Second, Trump is no Nixon, and I don’t mean this in a good way. Nixon’s wrongdoing was egregious, and criminal. But he did not pose a threat to democracy on the same level as Trump, with his incessant claims of a system rigged against him, of elections stolen and politically motivated prosecutions. Nixon left office under political pressure, but, still, he left office.
Nixon cannot accurately be called repentant, but in accepting the pardon he acknowledged “my own mistakes and misjudgments,” adding, “No words can describe the depths of my regret and pain at the anguish my mistakes over Watergate have caused the nation and the presidency — a nation I so deeply love and an institution I so greatly respect.” It is impossible to imagine anything approaching this degree of contrition from Trump. Those who accept no responsibility deserve no mercy. Those who continually incite discord should not receive a pass in the name of calming the turmoil.
Third, about that turmoil: Times have changed since Ford pardoned Nixon. The country has grown angrier and more divided. Ford openly worried about this in his day, warning that if he allowed a criminal case to proceed, “ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.”
Back then, for all the fury generated by the pardon, it was a reasonable judgment that it would calm the waters overall. Today, I wonder whether that would happen. If Harris were to order the prosecutions dropped or grant a pardon, would that have the same salutary effect as Ford envisioned in 1974? Polarization has edged into antipathy, not mere disagreement but vehement disdain for the other side. Political tribalism reigns; it takes precedence over the national interest. It is hard to imagine an act by Harris toward Trump that would magically alter this ugly reality.
So, my advice for former prosecutor and possible president Harris is to let Smith do his job and the criminal justice system work its will. She can decide down the road about a pardon, but she should be wary of taking the lessons of a half-century ago as a road map for what is best for the nation today.
