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When the Supreme Court gathers this week to consider whether a president is immune from prosecution for crimes committed in office, one can imagine the ghosts of Presidents Richard M. Nixon and Gerald R. Ford lurking nearby.
Nixon was involved in the Watergate scandal, for which dozens either plead guilty or were convicted. Ultimately, 19 were sentenced to jail, including high-level White House officials.
And while a grand jury designated Nixon an unindicted co-conspirator when he was still in office, he never faced charges. That’s because Nixon was pardoned by his successor, Ford.
Whatever one thinks of Ford’s decision, it’s utterly clear he believed that Nixon could have faced prosecution. Ford stated as much in his pardon proclamation, saying “As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States,” adding that, if that happened, Nixon would be “entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.”
Thus Ford expressed the view that presidents are not above the law, that if they commit crimes in the White House, they can be charged with crimes, go to trial and, if convicted, face the consequences.
And Nixon knew this. When Ford lawyer Benton Becker discussed the parameters of a possible pardon with Nixon, Becker took copies of a 1915 Supreme Court decision that said that pardons bring with them “an imputation of guilt and acceptance of a confession of it.” As Becker explained it, Ford told him to make sure that Nixon understood that “if he does accept the pardon … acceptance was an acknowledgement of guilt.”
A few years later, Nixon adopted a different tack, telling interviewer David Frost “when the president does it, that means that it is not illegal.” But when the comment caused a stir, Nixon wrote, “I do not believe and would not argue that a President is above the law.”
Trump has no such qualms. Instead, his lawyers said Trump can’t be prosecuted on the charges about trying to thwart the democratic transfer of power. In a brief to the Supreme Court, Trump argues that, because the Senate did not convict him after the House impeached him, he is “immune from prosecution.”
Trump lawyer John Sauer showed how far he and his client think presidential immunity goes when this case was heard by an appeals court panel a few months ago. A judge asked Sauer, “Could a president who ordered SEAL Team 6 to assassinate a political rival, and is not impeached, would he be subject to criminal prosecution?” Sauer said that was only possible, “If he were impeached and convicted first.” And recently Trump’s legal team blithely claimed “when the Framers erected the formidable hurdle of impeachment and conviction, they assumed the risk that some Presidential malfeasance might go unpunished.”
It’s outrageous — and not what the founders believed — to assert that a president can go around having people murdered and not be criminally liable unless they’re impeached.
What if a president launched an assassination spree at the very end of a term and there wasn’t time to have an impeachment? And what if a president threatened, assaulted or murdered people in Congress who could impeach and remove him?
Under Trump’s theory, the president would be outside of the parameters of the criminal justice system, with no possible accountability or punishment.
At a time when Trump has talked about being a dictator “for one day” and terminating portions of the Constitution, these claims are especially chilling.
We have a system where, according to the Department of Justice, sitting presidents can’t be prosecuted and certainly presidents have legal discretion in some matters. But to go as far as Trump would like — to allow presidents to never be subject to criminal law — is dangerous to our republic. If the ghosts of Nixon and Ford could weigh in, they would agree.
