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Tuesday, July 02, 2024

Legal Realism and the Nixon Pardon

I don't like some parts of Trump v. United States, though Trump v. Anderson was far worse. But the result yesterday was predictable. How do I know that? Because President Ford predicted something like this in 1974.

Ford was schooled in Legal Realism at Yale in the early 1940s. Here is the key passage of his Nixon pardon:

I deeply believe in equal justice for all Americans, whatever their station or former station. The law, whether human or divine, is no respecter of persons; but the law is a respecter of reality.

The facts, as I see them, are that a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.

During this long period of delay and potential litigation, ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.

In the end, the courts might well hold that Richard Nixon had been denied due process, and the verdict of history would even more be inconclusive with respect to those charges arising out of the period of his Presidency, of which I am presently aware.

The upshot of this was the there was a high likelihood that the courts would not permit a criminal conviction of Richard Nixon. As a result, there was no point in a prosecution. (I quoted Ford's pardon many times to explain why bringing criminal charges against Trump was a mistake, but oh well.) Granted, Ford expressed this concern as a due process question rather than as an immunity question, but the bottom line was the same. And the New York courts may well end up concluding that Trump did not receive due process there.

 

 

Posted by Gerard Magliocca on July 2, 2024 at 08:46 AM | Permalink

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