The release on Thursday of parts of a report from a grand jury in Georgia that investigated election interference by Donald Trump and his allies offers the most recent evidence of his growing legal exposure.
At least three teams of prosecutors — two state, one federal — are considering charges against him. In Georgia, the Fulton County district attorney, Fani Willis, is reviewing the grand jury report and said recently that a decision on whether to bring charges was “imminent.”
At the Justice Department, the special counsel Jack Smith is examining Mr. Trump’s role in the Jan. 6 insurrection and attempts to overturn the 2020 election, as well as his handling and retention of classified documents at Mar-a-Lago. And in New York, Manhattan’s district attorney, Alvin Bragg, is reported to be presenting evidence to a grand jury about Mr. Trump’s role in paying hush money to the pornographic film actress Stormy Daniels during his 2016 presidential campaign.
All three teams may face what the special prosecutor Leon Jaworski encountered after Watergate: Who determines the fate of a former president if he is credibly accused of a crime?
Gerald Ford settled the issue for Jaworski, with his pardon of Richard Nixon. We have been living with the consequences of that decision ever since — and it has taken shape as an instinctual move to shy from holding presidents to account. It has also made our democracy look weaker than that of other peer countries. The United States appears uncomfortable with applying the most basic of legal principles: No man is above the law.
Now we may be on the verge of a president’s being held accountable for abuses against the country. Such accountability is long overdue. As we have been exposed to the fragility of democracy, we should also warn future presidents and others that our democracy has tools to defend itself from those who seek to do it harm — and it is not afraid to use them.
In 1974, Jaworski was hardly certain he wanted to be the first to prosecute a president. After Nixon resigned on Aug. 9, movie posters went up in his office — the work of the prosecutor Richard Ben-Veniste, they advertised “King Kong,” a reference to what people in the office called “the monkey problem.” Who was going to decide whether Richard Nixon faced criminal charges for his actions amid Watergate? They all felt they had a monkey on their back — the special prosecutor, the grand jury, the attorney general, the president, Congress.
Earlier that year, Jaworski had stopped the Watergate grand jury members from indicting President Nixon, despite their clear desire to do so. As one of Jaworski’s staff members recalled later, “every inclination and instinct in Leon’s bones” favored leaving Nixon alone. As the summer ended, he contemplated asking the grand jury to issue a report making the case that although Nixon could have been indicted, prosecuting him wasn’t in the public interest.
It wasn’t necessary: The new President Ford pardoned Nixon in early September. He made the move because he feared that the country couldn’t stomach a prolonged trial and the possible imprisonment of a former chief executive and head of state. He also believed that he would be unable to govern, heal the country or move forward as long as Nixon’s fate twisted in the national wind.
It was a brave political move and one that almost certainly cost Ford the presidency in 1976, when he narrowly lost to Jimmy Carter.
But what if Ford made the wrong calculus?
The precedent Ford set seems to have paralyzed a half-century of prosecutors. That precedent and Justice Department policy have left the United States with what seems an untenable situation — presidents are immune from prosecution in office and politically untouchable after leaving office.
There’s clear evidence that the monkey of Jaworski’s day is alive and well: A new book from the legal pundit and former prosecutor Elie Honig reports that federal prosecutors in New York considered bringing charges against Mr. Trump after he left office regarding his role in the Stormy Daniels cover-up. The draft indictment for Mr. Trump’s former personal lawyer Michael Cohen, Mr. Honig writes, left no doubt: “Trump wasn’t merely a bystander or an unwitting beneficiary of the campaign finance crime. He was the driving force behind the scheme, and likely criminally liable for it.”
But those prosecutors ultimately demurred, feeling that prosecuting the former president was best left for more serious charges than campaign finance violations. (Perhaps now Mr. Bragg will pick up where they left off.)
Similarly, the special counsel Robert Mueller documented and collected evidence around possible obstruction of justice by Mr. Trump while in office, and the Mueller report states that this evidence prevented investigators “from conclusively determining that no criminal conduct occurred.” Yet no prosecutor has sought to pursue this material now that he is out of office. Everyone seems afraid to be the first to make the first move and break the Nixon precedent. Yet other democracies have been willing to bring current and former leaders to justice, including France, Israel and South Korea. In January, the British police fined Prime Minister Rishi Sunak for not wearing a seatbelt, and his predecessor Boris Johnson was fined for hosting parties that violated the country’s Covid lockdown rules. What better way to make clear the fundamental principle that laws apply to everyone than to bring a minor charge against a powerful figure?
We’re able to prosecute state governors. Since 2000, Connecticut, Louisiana, North Carolina, and Ohio have all seen governors brought up on state or federal criminal charges; in Illinois and Alabama, it’s happened twice. More than a dozen members of Congress have faced criminal charges in the last decade, including the former House speaker Dennis Hastert. Democracy chugs along just fine.
The commander in chief is undoubtedly a unique case, and the bar and evidence necessary to prosecute a former president should be high. But in the Stormy Daniels case, Mr. Trump was clearly implicated in court papers. If he’d been anyone else, he almost certainly would have faced felony charges. How is it better for our democracy for him to escape a charge that prosecutors would levy against anyone else?
America seems to have reached a point where a presidential prosecution, as explosive as it would be politically, would do more to restore national confidence in the judicial system than to diminish it.
In the Nixon case, a majority of Americans felt that he should face charges. Polls supported it, and the American Bar Association unanimously passed a resolution that said America must have “fair, just and impartial application and enforcement of the law, regardless of the position or status of any individual alleged to have violated the law.” On the Jaworski team, according to the memoir by Mr. Ben-Veniste and his fellow prosecutor George Frampton Jr., all but one of the prosecutors supported indicting Nixon.
“The offenses he had committed were major ones,” they wrote. “They involved high costs to the nation by undermining confidence in public, democratic institutions.”
It’s a fascinating “what if?” to imagine how putting Nixon on trial would and should have had a chilling effect on future chief executives.
How different would the presidencies of Ronald Reagan (Iran-contra) and Bill Clinton (Monica Lewinsky) look if those chief executives had known that one of their predecessors had done a five-year term at a minimum-security federal prison? How much of the turmoil of the Trump years — his alleged obstruction of the Mueller investigation, his stoking of election denial and more — would have been avoided if aides had been able to point out a possible presidential room at a federal prison like the one in Otisville, N.Y., where Mr. Cohen ended up for his role in the Daniels cover-up?
Today, as Ms. Willis, Mr. Bragg and Mr. Smith weigh whether to bring charges against Mr. Trump, they’d be well served to think of Mr. Ben-Veniste and Mr. Frampton’s arguments. The decision to charge dozens of Nixon aides, and not the former president himself “while he lived in remote splendor with his ex-president’s perquisites intact,” they wrote, “was morally repugnant; it reeked of the most basic unfairness.”
Garrett M. Graff is a journalist and the author, most recently, of “Watergate: A New History.”
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