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Monday, December 04, 2023

A Thought Experiment About Richard Nixon

It's 1975. Richard Nixon is on trial for Watergate crimes. He does not have a pardon. His lawyers and supporters ask the Court to dismiss the prosecution. Why? Because the trial, conviction, and/or imprisonment of a former President would be bad for America. I think it's fair to say that a court then (and now) would reject such an argument. Public policy concerns do not allow courts to set aside the law as applied to the facts for a given defendant. Only a pardon can take the wider public interest into account once a criminal prosecution is brought.

Many of Donald Trump's arguments in the ongoing Section Three litigation are similar to the hypothetical Nixon case. The claim is that disqualifying an insurrectionist former President from the ballot would be bad for America. A court cannot and should not consider these policy arguments. Only Congress--through its amnesty power--can.

This issue was briefly discussed in a District Court opinion upholding the constitutionality of Ford's pardon. In Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975), the Court said: "Few would today deny that the period from the break-in at the Watergate in June 1972, until the resignation f President Nixon in August 1974, was a ‘season of insurrection or rebellion’ by many actually in the Government." Nevertheless, President Ford exercised "prudent public policy judgment" in pardoning Nixon.

Whether you agree with Ford's pardon or not, it was his call to make and his alone. Likewise, only Congress can give Donald Trump a Section Three waiver from his season of insurrection or rebellion. Courts can look only at whether his conduct was disqualifying.  

Posted by Gerard Magliocca on December 4, 2023 at 11:40 AM | Permalink


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