With great fanfare, a former American president has been formally arraigned on criminal charges for the first time. Donald Trump, ever vengeful and sullen before the workings of justice, appeared before Judge Juan M. Merchan in Manhattan after reporting to the district attorney’s office and getting fingerprinted. News cameras were barred from the courtroom, but every other facet of the legal proceeding was chronicled and pundit-parsed, from footage of Trump’s private plane en route to New York from Florida, to his security motorcade’s journey downtown from Trump Tower, to the motley gaggle of pro-Trump protesters outside the courthouse.
Overlooked in all the arraignment-spotting frenzy, however, was the deeper reason that the appearance of a former president in a criminal docket was so novel: Since the end of the Watergate era, the Executive Branch of our federal government has operated in a zone of near-total extralegal impunity. Richard Nixon’s own all-purpose rationale for the criminal conduct of his administration—“When the president does it, that means it is not illegal”—has perversely proven to be among his most enduring legacies. The brief that enabled this mind-bending turn of events was the expansive get-out-of-jail-free proclamation that Nixon’s successor, Gerald Ford, issued just 31 days into his own administration. Ford tendered a “full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he…has committed or may have committed or taken part in.”
“Really, it’s no exaggeration to say that September 8, 1974, when Ford pardoned Nixon, and [Trump’s New York arraignment] are bookends,” says Barry Werth, author of 31 Days, the definitive history of the pardon and the early days of the Ford administration. “They bracket a zone of invulnerability around presidents and former presidents…. There’s almost been a moratorium on accountability for the presidency since the pardon, and now we’re in a different era.”
Of course, Ford cited the many traumatic realizations about the reckless abuse of executive power that the nation absorbed over the course of the Watergate scandal as the reason behind the pardon, in the effort to give weight to his famous claim, on taking office, that “our long national nightmare is over.” It’s true, as Werth’s book documents, that Ford’s presidency was in danger of stalling out completely the moment he took office over the question of how and whether Nixon could be prosecuted. “Ford decided what he had to do was abort the judicial process, and that’s what we’ve been living with ever since,” Werth says. “Somehow Nixon had to be dealt with; Congress wasn’t going to do it; the special prosecutor’s office wasn’t going to do it; so Ford just decides, ‘We’re going to stop the legal process before it goes any further.’ That’s why you see the incredible breadth of the pardon–it was a giant free pass for Nixon to say, ‘I’m going to get my papers back; I’m going to have a future; I’m going to be able to make money.’”
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This latter point finds a second-time-farce echo in one of Trump’s other pending appointments with the justice system, the Mar-a-Lago documents case now under investigation by Justice Department special prosecutor Jack Smith. Trump recently announced to lickspittle Fox News enabler Sean Hannity that he looked through the papers in question after a subpoena had already been issued for them, possibly intending to retain some for his own keeping. Nixon, Trump mentioned, had realized a multimillion-dollar return on his White House papers.
Whatever Ford’s ultimate instrumental rationale for the Nixon pardon may have been, its longer-term legacies for the always demanding task of instituting firm executive accountability under the American system have been disastrous. “Ford probably made the right decision in the moment for his presidency, and probably the wrong decision for the country as a matter of history,” says Garrett Graff, author of the recent study Watergate: A New History.
The sweeping nature of the pardon also allowed the political establishment to sidestep the sweeping nature of the Nixon administration’s crimes. “Watergate was not an event; it was a mindset,” Graff says. “Watergate is not the burglary on June 17, 1972; it is this umbrella of distinct but interrelated scandals with overlapping characters that unfolds straight from ’68 to ’74. It is the Chennault affair, the bombing of Cambodia, the Kissinger wiretaps, ratfucking, etc.—and it’s the burglary and the conspiracy and the coverup…. All this stuff we see the Nixon administration engaged in—abuses of power, abuses of the executive, the weaponizing of the federal government against political enemies. And to me, that’s a distinction that I think is worth drawing out when you look at things like Iran-Contra, the Lewinsky scandal, and scandals of the George W. Bush administration. Where there might have been individual scandals, and individual crimes committed in those administrations, it was not an extensive abuse of power and authority permeating the administration. That, to me, is the Nixon-to-Trump parallel: The thing we’re coming to understand is that Trump is all one story, from Russian election interference in the 2016 campaign to the Comey firing and conspiracy to obstruct the Mueller investigation, the “perfect” telephone call to Zelensky the day after the Mueller hearing, the first impeachment, the building of the big lie, and January 6. That’s all the same story with Trump. And to me, one of the distinctions that is worth drawing is [that] Nixon’s crimes were crimes against the American people…and Trump’s crimes were fundamentally against American democracy. That, to me, is one of the reasons Trump’s crimes deserve special treatment and special attention, where you can see a historical thread through all Trump’s scandals in a way that makes him distinct from any other president.”
The charges Trump now faces in Manhattan—stemming from the orchestration and cover-up of a payoff to alleged extramarital romantic partners Stormy Daniels and Karen McDougal—are a slender end of that thread, but the other pending criminal investigations surrounding Trump seem likely to establish at least a semblance of a comprehensive legal case against the concerted and overlapping abuses of power that Graff describes. What’s more, given Trump’s intransigence and still-robust popularity among the Republican base, the whole question of the nature and extent of true executive accountability in the American system looks like it could drive much of the upcoming presidential campaign cycle. “Trump could get elected and pardon himself, or get DeSantis or someone to do it,” Werth notes. “This is likely to become the central issue of the presidential campaign. The reason he’s now so desperate to become president is so that he can avoid prosecution. He could even broker a deal with someone like DeSantis to step aside in exchange for a pardon—then it would replicate what Nixon did with Ford. It’s his only key out of jail.”
In such a scenario, the central character of Trump again would be less an outlying Oval Office supervillain than a symptom of a far broader malady of the American justice system: For all its eager embrace of rampant incarceration as an all-purpose alleged “deterrent” for certain populations, it routinely coddles powerful and rich white-collar offenders. “The story of the Trump years is the sort of downstream unfortunate consequence of America’s chronic non-prosecution of white-collar crime,” says Graff. “Even before you get to the specific precedent of prosecuting a president, if America prosecuted white-collar crime at anywhere the level of the War on Drugs, the war on marijuana, all the mandatory-minimum sentencing for drug dealing, Trump’s presidency isn’t thinkable. There’s not one person from the Trump orbit who’s around to run or work on the Trump campaign in 2016 in the first place.”
That’s another notable distinction between the Watergate scandal and the Trump investigations: the conspicuous silence of today’s legal system in charging the many other abettors of a criminal conspiracy—still another facet of the gnat-straining vision of executive accountability bequeathed to us by the Ford pardon. “We are in a completely different era, but what’s so interesting about these investigations is this gap,” Werth says. “During Watergate, you had something like 40 members of the administration and the Committee to Re-Elect the President [who] had been charged. Many were tried and went to jail;, many lawyered up and defended themselves. Now Trump has been charged in New York, and the only other person charged has been Michael Cohen, without anyone else yet being indicted.”
Still, as Werth notes, the simple action of bringing a former president into direct contact with the criminal justice system seems to create a watershed moment. “All the talking heads, they’ve said, ‘This is a sad day.’” Werth says. “But you know, we should be saying, ‘OK, so we’ve opened the channels of accountability that have been closed to us…. The blockade is down. The ships are coming through.”