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Journalism of Courage
Former US President Donald Trump is facing several lawsuits and investigations, with US online forum Just Security listing at least 22 active cases pending against him. These range from allegations of wire fraud, election tampering, tax evasion, and defamation among others.
Trump is currently being investigated by the Justice Department over a series of missing classified documents, a charge that could potentially result in a serious fine and imprisonment. Additionally, the US Senate is holding hearings to determine the scope of Trump’s involvement in the January 6 Capitol riots, an event described by the Committee’s Chairman as an “attempted coup.”
In the case of missing classified documents, no formal criminal or civil charges have been filed by the Justice Department, and no indication has been given that any are forthcoming.
In terms of the January 6 attacks, while the Senate is investigating the same, it has not yet recommended that any charges against Trump be brought to the Justice Department. Attorney General Merrick Garland can decide to prosecute at any time, even without the recommendations of the Senate Committee.
While the list of Presidents investigated by Congress and the Justice Department includes the likes of Ronald Reagan and Bill Clinton, the most obvious parallel to the litany of Trump’s lawsuits is with the impeachment trial, resignation and eventual pardon of Richard Nixon over the events of the Watergate scandal.
In the aftermath of Watergate, the American public was forced to contemplate an almost unthinkable scenario; that a former president of the most powerful country in the world, could end up disgraced, disenfranchised and confined to a life behind bars.
As with today, the country was divided over such an outcome, with the main question pertaining not to the criminality of Nixon’s actions but on whether a potential trial would exacerbate the deep wounds he inflicted upon American democracy.
While parallels are now being drawn between Nixon and Trump, we look at the Watergate scandal, how it changed US politics, and the difference between the two former presidents.
On June 17, 1972, five men were caught attempting to bug the Democratic National Committee’s offices in the Watergate, a complex in Washington DC. The break in had been planned by the Committee to Re-elect the President (CRP), Nixon’s campaign committee.
While there is no evidence that Nixon ordered the break-in personally, he did create an environment in which criminal behaviour was acceptable and actively participated in covering up the crime. The latter included asking the CIA to disrupt the Watergate investigation, and allegedly deleting 18 minutes from a tape that is believed to include a conversation between Nixon and members of the CRP about the Watergate arrests
After this information was made public, the House Judiciary Committee approved three articles of impeachment against Nixon but he resigned before proceedings could begin. Later, his successor and former vice president, Gerald Ford, granted Nixon a blanket pardon which spared him from future prosecution.
“We have not seen, over the years, any presidential pardon that had the magnitude of when Ford pardoned Nixon,” wrote journalist Tom DeFrank in an account of his conversations with Ford.
The day Ford was sworn into the Presidency, the special prosecutor of the Watergate case drafted a memo weighing the pros and cons of prosecuting Nixon. The memo argued that “in our view, there is clear evidence that Richard M. Nixon participated in a conspiracy to obstruct justice” and that, as such, he should be subject to the same rule of law as every other citizen.
The main arguments against prosecution were that the embarrassment associated with resignation were punishment enough, that the prosecution would aggravate the nation’s divisions and that publicity would impede Nixon’s right to a fair trial.
At the time, the US was already reeling from an energy crisis, a disastrous war in Vietnam and a recoiling economy. According to a report from Politico, Ford was worried that a trial would distract from these pressing issues, especially if, as expected, it would continue for a protracted period of time.
At a 2014 panel discussion, Ford’s lawyer during that period, Benton Becker, stated that Ford also believed at the time that a pardon would imply an admission of guilt.
Additionally, it is said that Nixon had picked Ford as his vice president because a pardon was assured. (His previous vice president had resigned in 1973 over allegations of tax evasion.)
At the time, the decision was wildly unpopular. In an editorial, The New York Times states that the Nixon pardon was a “profoundly unwise, divisive, and unjust act” that had “destroyed the president’s credibility as a man of judgement, candour and competence.” Ford’s approval rating dropped from 71 to 50 per cent following the pardon.
More recently, in the book A Smoking Gun, The Nation on Watergate, former Congresswoman Elizabeth Holtzman argues that “Ford’s pardon has grown into a principle of impunity for Presidents” creating an ecosystem in which presidents are not only safe from prosecution but from investigation as well.
Ford’s pardon raised many of the same ethical and practical questions that are being asked in the wake of investigations surrounding Trump, namely, whether holding him accountable would do more harm or good for the country, and will it set a precedent for future lawbreakers.
In both cases — missing classified documents and January 6 Capitol riots — prosecuting Trump could prove to be extremely tricky, political analysts and experts say. In the case of the missing records, according to Anne Weismann — a lawyer who represented watchdog groups that have sued Trump over violations of the Presidential Records Act — evidence of Trump’s guilt is “unquestionable.” The problem, she notes, is that the Act he transgressed has “no enforcement mechanism” and therefore no substantive way to punish wrongdoing.
Weismann also identified two criminal laws that Trump may have violated by destroying White House records. Both could potentially result in a prison term. The first law states anyone who “willfully injures or commits any depredation against any property of the United States” faces a fine or up to one year imprisonment if convicted. The second states anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates or destroys … any record, proceeding, map, book, paper, document, or other thing, filed or deposited … in any public office” is subject to a fine or up to three years in prison if convicted.
Meanwhile, a report by the Brookings Institute says that although the Capitol riots failed to bring about a government overthrow, an attempted, even incompetent, coup could still be defined as treason. It goes on to state that Trump could be prosecuted for a number of offences including ‘conspiracy to defraud the United States,’ ‘dereliction of duty,’ ‘inciting an insurrection,’ and ‘obstructing an official proceeding.’
However, according to The Atlantic, bringing forth charges is one thing, convicting the former president of a crime is another. To begin with, criminal charges are hard to prove generally, and when, in situations like this, the case has political overtones, it is even harder to obtain a conviction. Criminal convictions require a unanimous guilty verdict to avoid a mistrial, and political defendants “typically enjoy a more robust presumption of innocence than everyday criminals do.” If even one juror believes that the prosecution is motivated by politics, Trump will escape punishment no matter what the evidence is.
The situation will become considerably more complicated if Trump gets re-elected in 2024. While a conviction would still be theoretically possible, Trump would have the advantage of selecting his own Attorney General to oversee proceedings and would be protected from federal charges due to presidential immunity.
Trump could also stand for office behind bars as per current laws.
For his part, the former president remains as bullish as ever. He claims that the charges against him are politically motivated and that the FBI search of his Florida property was no different to the crimes of Watergate.
Moreover, Trump still commands significant sway amongst voters. Two years after Watergate, the Democrats swept the national and state elections, in a sign that the country was disillusioned with the divisive policies of the Republican party.
Republican voters today show no sign of either abstaining from voting or switching their votes to another candidate. According to a poll from the University of Massachusetts, more than half of Republican voters believe that the 2020 election was ‘stolen.’ A Fox News poll shows that 32 per cent of voters would be more likely to vote for a candidate endorsed by Trump, while 20 per cent said it would make no difference. Essentially, over 50 per cent of the electorate is apathetic towards Trump’s crimes and future political involvement.
According to a report in The Washington Post, over 100 GOP officials that won recent primaries appear to endorse Trump’s claims about the election and of the 10 Republicans who supported impeachment, it is possible that only one will be in Congress after November’s elections. The party is expected to dissolve the January 6 investigation if they win control of the House.
Prosecuting him could make it harder for Trump to influence politics and potentially hold office again. However, even if he’s convicted he could still hold sway amongst voters.
While no former US President has been convicted of a crime, other nations have charged and incarcerated their former leaders to mixed results.
As Paul Rosenzweig, a senior counsel during the investigation of President Clinton, notes in an article for The Atlantic, “criminal law is a blunt tool for achieving justice and a poor means of resolving political issues.” Moreover, he writes that a failure to convict Trump “will only embolden him and his followers.”
Prosecuting Trump, Rosenzweig says, could resolve nothing and potentially rile up his base even more. However in terms of achieving justice or even just the illusion of it, criminal law can be an effective tool.
Brookings Institute’s Elaine Kamarack argues that “the decision to prosecute is easy; no one is above the law, including Donald Trump.” Others state that since the government has already arrested 900 people in connection with the Capitol riots, Trump, as its “instigator-in-chief” should be held similarly responsible.
However, Jack Beermann, a professor at Boston University, warns that prosecuting Trump could do more to rapture political divides than heal them. He states that while he found Trump’s conduct to be questionable, he is unsure whether it meets the standard for criminal prosecution. He writes that “the last thing we need in our divided country is a new tradition of prosecuting the other party’s leaders after an election.” Beermann adds that unless evidence is produced of a well-defined crime, prosecuting Trump could be seen as “political retribution,” further heightening public distrust of the government.
Polling indicates that a majority of Americans want Trump to be prosecuted. According to an ABC news poll, 60 per cent of Americans think Trump should face prosecution, while another Washington Post poll puts that number at 54 per cent. However, given the extreme polarisation that exists in America today, amongst the far-right, prosecuting Trump could be seen as being akin to blasphemy, while amongst the far-left, it could be seen as too little too late.
According to the Center for American Progress, a US think tank, the post-Watergate reforms restored faith in American democracy by “combating the corrupting influence of money in politics; promoting ethics and transparency in government; protecting people against abuses of government power; and limiting certain extraordinary exercises of presidential authority.”
But despite those measures, Reagan was allowed to make illegal arm sales and Bush was shielded from political scrutiny over his tactics in Iraq. Presidents since Nixon have committed a slew of questionable offences, and the reforms have done little to stop them.
While Watergate-like reform could be a meaningful tool, it would have far less impact on future conduct than the statement prosecution would make.
According to an editorial in the Boston Globe, presidents “need a clear message, one that will echo through history, that breaking the law in the Oval Office will actually be punished.”
That sentiment is echoed by Shawn Lynch, professor, Boston University. He says that “to suggest that former presidents cannot be prosecuted is ludicrous and nonsensicial” adding that “wrongdoing must be punished, or others will take the same path as Trump and his deluded followers.”
There is considerable evidence that this may be the case. Already, some Trump supporting members of the GOP have defended Trump’s role in the January attacks. Chief amongst them is Trump loyalist and Missouri Senator Josh Hawley who also accused a Supreme Court nominee (now Justice) of conspiring with child pornographers . His claims regarding the latter were so misguided that conservative commentator and former New York Attorney General Andrew McCarthy (guilty himself of initially enabling Trump), wrote that “(Hawley’s) allegation appears meritless to the point of demagoguery.”
Congresswoman Marjorie Taylor Greene, also a staunch Trump supporter, has advocated for the execution of political opponents, asking on Facebook, “now do we get to hang them?? Meaning H & O.” The H and O in question refers to Hillary Clinton and Barack Obama. Another Congressman, Matt Gaetz, has been accused of child trafficking. Take a guess at who he petitioned for a Presidential pardon.
Prosecuting Trump could deter people like Hawley, Greene and Gaetz from attempting to subvert American democracy in the future but doing so also comes with its own risks.
