American exceptionalism means no one is above the law except the rich and powerful. It is an open secret. Gerald Ford’s pardoning of Richard Nixon for Watergate enabled Ronald Reagan’s, George W. Bush’s, and Donald “The world is laughing at us” Trump’s criminality.* How many times will our justice system shy from defending the precept that no one is above the law before hanging up its scales for good? Trump has exploited America’s system of unequal justice his entire life. As evidence of his criminality mounts, lawmen, lawmakers, and jurists must decide whether to codify de facto inequality or silence the laughter.
The Nixon pardon was the executive branch’s Dred Scott decision, and its repercussions have lasted decades. Matthew Dallek, a professor at George Washington University’s Graduate School of Political Management challenges Americans to look in the mirror and see what moral cowardice has made us. What we do now could unmake us. But here we are:
Nearly five decades later, Joe Biden is president, and a pardon for Donald Trump isn’t happening. But whether Trump will eventually be prosecuted for his conduct in the White House is more of a conundrum: If the country crosses this inviolate threshold, all hell will break loose. If we don’t cross it, all hell will break loose. There will be no “shifting our attentions” by advocates of either course. And whichever path the nation follows will have lasting repercussions. One thing is increasingly clear — fear will play a greater role than facts in determining it.
If Trump were indicted, he would become the first former president to stand criminal trial. Prosecutorial threats are multiplying: Bank and tax fraud charges are under consideration in Manhattan. In Fulton County, Ga., a special grand jury is investigating Trump’s interference in the 2020 election. In a Washington courtroom, U.S. District Judge Amit P. Mehta told a convicted Jan. 6 Capitol rioter that he was a pawn in a scheme by more powerful people, and the legal community is debating whether Trump’s seeming incitement of the insurrection has opened him up to criminal charges. The National Archives requested that the Justice Department open an investigation into Trump’s mishandling of top-secret documents that the government recently retrieved from his Florida estate. Trump still faces legal jeopardy for obstructing justice during Robert Mueller’s probe into Russian interference in the 2016 election (remember that one?). During the 2016 campaign, Trump allegedly orchestrated hush-money payments to Stormy Daniels (the charges that landed his handler Michael Cohen in prison referred to Trump as Individual #1). This list is hardly exhaustive and omits the dozen-plus civil lawsuits and civil investigations Trump faces.
Proving intent in some pending cases could prove a high bar but not insurmountable bar, Dallek writes. Trump’s belief that admitting publicly what he’s doing is some kind of legal shield has worked for him. That and tying up civil adversaries in court until they are bled dry of funds and go away. Abusing the legal system to delay and evade accountability is his go-to move. But as president, his trail of admissions and public actions could be his undoing. If evidence warrants. If, like Nike’s admonition, some prosecutor with the guts will just do it and file charges.
The stakes are enormous. The rule of law, the notion that we are all equal under our criminal justice system, is among the noblest of principles but also the ugliest of myths. The question of putting Trump on trial before a jury of his peers is a test for a principle of democracy that has often proved out of reach for most Americans.
Racial animus and status anxiety are not the only sources of right-wing populism and revolt. There is a deep distrust of government and justice systems clearly designed for the wealthy and powerful. One for the rich and another for the rest.
“Nonviolent drug offenses for the poor have resulted in decades-long prison sentences,” Dallek laments, “while hardly any bankers stood trial for reckless and probably illegal activities that helped trigger the 2008 financial crisis.” Millions lost the roofs over their heads, their jobs, and any sense of security while bankers got richer. Their seething anger at the system, exploited by ethnic entrepreneurs — Trump, News Corp, Alex Jones, Proud Boys, etc. — and directed at nonwhites and immigrants, led to the sacking of the U.S. Capitol. Those tensions have not abated. Our allegedly self-correcting democracy has yet to do any correcting.
Dallek warns:
Now this unequal system of justice faces a crossroads. Any decision about prosecuting the former president centers on two conflicting fears: Inaction mocks the nation’s professed ideal that no one sits above the law — and Americans might wonder whether our democracy can survive what amounts to the explicit approval of lawlessness. But prosecuting deposed leaders is the stuff of banana republics.
Trump dreams of leading one. Gold braid and epaulets, tanks in the streets, political adversaries in prison, etc. In office, he sucked up to autocrats and strong men like a lap dog, begging to be let into their ignominious club. There is danger to prosecuting Trump as there is to not prosecuting him. Trumpism has reduced one of our major political parties to a cult of emotionally damaged personality. The greater danger may be allowing him anywhere near the levers of real power again.
Signs abound that Trump, left untouchable, will further inflame and destabilize the nation. He will reinforce the conviction that democracy has failed and the only he can fix it. As an autocrat supported by a large fraction of the country that has similarly abandoned the principles they mouth for show. There will be blood.
Not prosecuting Trump has already signaled to his supporters that accountability is for suckers. “The warning signs of instability that we have identified in other places are the same signs that, over the past decade, I’ve begun to see on our own soil,” political scientist Barbara Walter wrote in “How Civil Wars Start.” The signs include a hollowing out of institutions, “manipulated to serve the interests of some over others.” Trump’s continued ability to manipulate institutions to serve his interests and his supporters’ interests has eroded yet another democratic norm. “I have an Article II, where I have to the right to do whatever I want as president,” Trump told the conservative organization Turning Point USA when he held the office. Until the criminal justice system stops him, he will continue to believe that.
The injustice of Jim Crow and decades of extrajudicial killings long preceded Ford’s pardon of Nixon. But Jim Crow proved Americans have a high tolerance for injustice so long as it does not touch them. Nixon, Reagan, and Bush II all evaded accountability and Americans stood for it. The Great Recession and our collective failure to hold the elite accountable rubbed their faces in it, made it personal.
“These days,” writes Dallek, “it’s fashionable to say the system worked after Watergate. But that’s not quite right. The system forced the president to resign his office, but it also protected the disgraced ex-president from criminal punishment. In 1974, Americans viewed the pardon as a blow to the rule of law. It’s not too late to learn from Ford’s mistake.”
But it may be our last chance. The home of the brave teeters on the brink of becoming the home of the knave and of moral cowards.
*Iran-Contra; war crimes; where do you even start?
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