Prosecuting Trump will ruin our nation — and might not hold him accountable

One of the great acts of statesmanship in modern American history was President Gerald Ford’s pardon of his predecessor, Richard Nixon, in the wake of Watergate a half-century ago. It is remembered as an act of clemency that was, for Ford, not merely selfless but self-destructive. In the short run, it was deeply unpopular as he struggled to get footing under his fledgling, unelected administration. In the longer term, so narrowly did he lose the 1976 election to President Jimmy Carter that it is impossible to say whether lingering resentment was the deciding factor.

Ford’s pardon of Nixon has lived better than it launched. It was initially misunderstood as shielding Nixon from accountability. Nixon was held accountable. He resigned because he otherwise would have been impeached by the House and almost surely convicted by the Senate. He was effectively ousted from office and, as a practical matter, the other penalty for impeachment, disqualification, was irrelevant. Despite Nixon’s historic landslide victory less than two years earlier (he won 49 states in the 1972 election), he left the White House almost universally condemned. It was inconceivable that he would ever have sought public office again.

The lesson of the pardon is that President Ford preserved domestic tranquility and insulated the Department of Justice from the deeply corrupting effects of immersion in partisan politics that a prosecution of Nixon would have made unavoidable. It is a lesson we have to hope President Biden and Attorney General Merrick Garland have learned.

The Biden administration, and Garland in particular, are now under intense pressure from progressive extremists who dominate Democratic Party politics, and from the high-profile House select January 6th Committee, to prosecute former President Donald Trump for abuses of power that stoked the anger of his political base, encouraged anti-constitutional perfidy on the part of his political allies, and eventually provoked the Capitol riot.

The pressure is more intense than what Ford confronted. There has not been a national catharsis because Trump has not been held accountable. Sure, he lost the 2020 election, but that occurred before the derelictions leading to the Capitol riot — in fact, Trump’s loss triggered them. House Democrats proceeded to politicize and botch Trump’s impeachment; indeed, though similarly politicized, the committee investigating the events of Jan. 6, 2021, is an attempt to conduct the investigation that the House failed to carry out after the riot, and to specify the actual “high crimes and misdemeanors” Democrats failed to plead in their haste to accuse Trump of “incitement to insurrection.”

The lateness of the riot in Trump’s term gave Senate Republicans the escape hatch to acquit him at the impeachment trial on dubious rationale that he no longer could be removed from office. As a result, he was not subjected to the sanction of disqualification. Far from being held to account, he has used the acquittal to minimize the heinousness of his actions and exploited the lack of disqualification as daylight to run again in 2024 — on the delusion of avenging what he still baselessly maintains was a “stolen election.”

Today’s political environment is also radically different from that of 1974. Partisan extremes now drive energy, not the bipartisan political establishment that defenestrated Nixon. Trump’s misconduct notwithstanding, his political base still heavily influences GOP politics. It has made a cause of defeating Republicans who supported Trump’s impeachment. It makes him the putative frontrunner to win the nomination. (I suspect he is more a paper-tiger whose candidacy will collapse as more Republicans realize he would be crushed in a national election, but mine is a minority view, for now.)

On the other extreme, the hard left controls the Democratic Party, pulls the strings of the Biden administration, and pervades the legacy media. Hence, the enthusiasm for Trump’s prosecution and cheerleading for the House committee, despite the partisan flaws in its composition that ensure much of the country will ignore its hearings and eventual report.

For these Democrats, Trump’s prosecution is the proxy for Congress’s failure to disqualify him via impeachment. But this is an emotional position, not a logical one. The failure to grasp this would tear our already divided country apart and irreparably damage the Justice Department.

Prosecution is not a substitute for impeachment. The latter is a political remedy, in which public officials lose the privilege of high office for abuses of public trust. That is why it does not require proof of penal crimes, why the due process requirements are minimal, and why its obvious lack of objectivity is tolerable. Prosecution, by contrast, is a judicial proceeding, in which an accused may lose the right to liberty for private wrongs. That is why it demands proof beyond a reasonable doubt of penal crimes, the due process protections are immense, and the proceeding must be fair and impartial.

There may be a viable criminal case that Trump corruptly obstructed congressional proceedings (the Jan. 6, 2021, joint session to count state-certified electoral votes), but that is highly debatable. If the Justice Department brought such a case, much of the country would condemn the indictment as political payback. Such a prosecution of a former president could take years, enmeshing the federal courts in unprecedented questions.

Besides the fact that it could lose, the Justice Department would find itself in a never-ending cycle of political investigations and prosecutions. When Republicans eventually retake the White House — and, for that matter, retake Congress, perhaps a few months from now — the GOP base that elected them would demand prosecutions of Biden administration officials and congressional Democrats. We will have razed the vital wall separating law enforcement from partisan politics.

President Ford knew better than to consign the nation to that abyss. And while the impeachment case against Nixon was compelling given the abuses of power, the chances of convicting him at a criminal trial would have been low. The costs to the country, though, would have been ruinous.

President Trump should be held to account. Prosecution would be the wrong vehicle. Here’s hoping cooler heads prevail.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.