On Sept. 8, 1974, President Gerald Ford pardoned ex-President Richard Nixon. Widely acclaimed as a wise move that would “allow the nation to heal,” it simultaneously created an open invitation for abuse of power by an authoritarian president without any consequences. Sound familiar?
We rely on protections against presidential misconduct that include (1) impeachment while in office, and (2) criminal prosecution upon leaving office. In Trump’s case, and arguably in others, the first has miserably failed, and the second has been severely impaired.
I read the entire Mueller Report and it makes crystal clear that, at a minimum, Trump’s actions in attempting to suppress the Russia investigation would have led to multiple counts of obstruction of justice against any ordinary citizen. Unfortunately, the Justice Department guidelines against in-office indictments twisted the Mueller Report authors in knots to report accurately but avoid “unfairly” suggesting that the president deserved prosecution.
This led directly, over vehement objection by the Mueller investigators, to the report whitewash by AG Barr. And that in turn led to forcing a dramatic paring down of future impeachment #1 counts and providing cover for sycophant legislator impeachment trial jurists to later quash witness appearances, claim lack of evidence, and “exonerate” Trump. If the jury is dependent on the defendant for primary endorsements, is a fair trial possible?
The bottom line: If the party of the president firmly holds either House or Senate, there is a high probability that the president is free to abuse power with impunity while in office. The verdict overwhelmingly depends on practical politics. Criminal acts, evidence, and truth have little to do with it.
Then what about the second protection, criminal prosecution upon leaving office? According to “commonly accepted presidential norms of behavior” it has been assumed that presidential pardons would be based on merit and free of self-serving motives. But all it takes is an authoritarian in the Oval Office to wantonly exploit that power by pardoning potentially damaging witnesses like Paul Manafort, removing any motivation for them to cooperate with prosecutors. And it is truly astounding to see the same individuals, who claim nobody is above the law, immediately contradict themselves with the absurd argument that a president can pardon himself!
Deterring misconduct by overhauling a firmly embedded impeachment process is near-impossible. A more workable solution is to legally prevent presidential pardons to individuals in cases where the president, family, friends, or underlings are involved. Better, prohibition of all presidential pardons should be formally enacted into law. As has been vividly demonstrated over the last four years, we rely on “presidential norms of behavior” at our peril.