Former U.S. President Donald Trump addresses supporters at Kirkwood Community College in Cedar Rapids, Iowa, on Dec. 2, 2023.JORDAN GALE/The New York Times News Service
With the Iowa caucuses two weeks in the future, an incendiary issue of the past is roiling American political waters.
Fifty years after Gerald Ford pardoned Richard Nixon for various Watergate-related crimes, the two leading Republican challengers to Donald Trump have said firmly in the past several days that, if elected president, they would pardon Mr. Trump for his involvement in the attempt to overturn the 2020 election and other charges.
Once again, the United States is debating the politics of presidential pardons.
Speaking in Elkader, Iowa, Governor Ron DeSantis of Florida said he would offer Mr. Trump a pardon. “I think we got to move on as a country and, you know, like Ford did to Nixon, because the divisions are just not in the country’s interest,” he said. Former governor Nikki Haley, speaking in Plymouth, N.H., said, “I would pardon Trump if he is found guilty.”
Mr. Trump faces 91 counts in four indictments, some for his alleged involvement in paying hush money to a porn star and others involving the events leading up to and including the riot at the Capitol on Jan. 6, 2021.
Article II, Section 2, Clause 1 of the U.S. Constitution provides the president with “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”
If he were elected again, Mr. Trump presumably could pardon himself for any federal crime.
The presidential reprieve and pardoning power does not extend to cases in state courts, however, and Mr. Trump faces special peril in a Georgia case with its 13 charges against the former president for seeking to overturn the election results there.
The 1974 pardon of Mr. Nixon, which occurred just short of a month after Mr. Nixon’s resignation sent Mr. Ford to the White House, is considered a major reason why he failed to be re-elected two years later.
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However, an unusually brisk example of historical revisionism led the country to recognize that Mr. Ford’s decision – shocking at the time, and brutally criticized – helped heal the country, which was riven by divisions over Watergate that often are compared with today’s polarization.
The remarks of the two leading challengers to Mr. Trump in Iowa, which holds its caucuses Jan. 15, and in New Hampshire, which holds its primary Jan. 23, are the clearest indications to date of their intentions if they win the White House. They, moreover, reflect a general Republican view that the prosecutions against the 45th president are politically motivated.
But nearly a quarter of Trump supporters believe that he should not be the Republican nominee if he is convicted, according to a New York Times/Siena College poll released late last month.
In that poll finding is a subtle nuance of potentially great significance.
Ms. Haley, who served as Mr. Trump’s ambassador to the United Nations, made it clear that her offer of pardon would come if he were convicted.
There is more ambiguity in the remarks of Mr. DeSantis, who is a Yale-educated lawyer and may have been parsing his words; his comments leave open the possibility that he could pardon before a trial, which is to say even if he is not convicted, much the way President Jimmy Carter pardoned Vietnam draft dodgers and President George H.W. Bush pardoned former defence secretary Caspar Weinberger.
That was the case with Mr. Ford’s pardon of Mr. Nixon. But that action shone light on a little-recognized but highly significant penumbra of the law: the concept that the acceptance of a pardon implicitly carries a recognition of guilt.
Before he died in 2015, Benton Becker, the envoy in pardon negotiations with Mr. Nixon, said that Mr. Ford took comfort in the 1915 Burdick v. United States case in which the Supreme Court ruled that a pardon carried an “imputation of guilt” and that the acceptance of such an offer was an “admission of guilt.” For nearly two decades after leaving the presidency, Mr. Ford carried in his wallet a wrinkled scrap of paper setting out the relevance of that court decision to Mr. Nixon’s acceptance of the pardon.
That was little solace to Mr. Ford in the short term; the Gallup poll at the time showed that 53 per cent of the public opposed the pardon. But as little as a dozen years later, sentiment had reversed itself dramatically, with 54 per cent of Americans telling Gallup survey takers that they approved of the pardon. In 2001, the John F. Kennedy Library Foundation presented its Profiles in Courage Award to Mr. Ford.
“I was absolutely convinced then as I am now,” Mr. Ford said in an unusual 1974 presidential appearance before a congressional committee, “that if we had had [an] indictment, a trial, a conviction, and anything else that transpired after this that the attention of the President, the Congress and the American people would have been diverted from the problems that we have to solve.”
In An Ordinary Man, the definitive Ford biography, published last year, presidential historian Richard Norton Smith said that time and intervening events served to “put the Nixon pardon in a fresh light, and validate Ford’s original rationale – his desire to refocus the nation’s attention on more pressing matters of state.”
That clearly is the formulation that Ms. Haley is applying to her pardon comments, which came in the same week that Mr. Trump pressed the argument, questioned by his opponents and many legal scholars, that he had “absolute immunity” for election-overturning actions he took while president because he was acquitted by the Senate in his second impeachment.
“A leader needs to think about what’s in the best interest of the country,” Ms. Haley said. “What’s in the best interest of the country is not to have an 80-year-old man sitting in jail that continues to divide our country. What’s in the best interest of our country would be to pardon him so that we can move on as a country and no longer talk about him.”
Speaking 157 kilometres away in Seabrook, N.H., former governor Chris Christie took issue with his two rivals, arguing that a Trump pardon would say that the country had “two systems of justice: One for all of us and one for the most powerful.”
He added: “If we allow that to happen as a country, we would be no better – no better – than a lot of these tin-pot democracies around the world who treat the privileged different than they treat everyday citizens.”