During the Supreme Court hearing that will likely determine whether or not Donald Trump is tried before the next presidential election over his attempt to steal the last one, Justice Brett Kavanaugh asked a question that should alarm everybody.
Speaking of President Gerald Ford’s pardon of Richard Nixon, Kavanaugh correctly noted that it was “very controversial in the moment” and probably why Ford lost the 1976 presidential election. Then Kavanaugh claimed that the pardon is “Now looked upon as one of the better decisions in presidential history, I think by most people.”
Actually, there’s a good argument that it was one of the worst. If nothing else, it has allowed Trump and the MAGA Supreme Court to stall the prosecution of his coup attempt and gotten us into the exact pickle we are in today.
Journalist Garrett M. Graff wrote in a New York Times column that there’s “clear evidence” Ford’s pardon “seems to have paralyzed a half-century of prosecutors.” He noted that while Department of Justice policy makes presidents immune from prosecution while they’re in office, the pardon has made them “politically untouchable” after they leave the White House. As an example, he cites Robert Mueller’s report that investigators could not conclude there had been no criminal conduct from Trump, yet no prosecutor has picked up the Russia investigation since. “Everyone seems afraid to be the first to make the first move and break the Nixon precedent,” he wrote. Graff went on to suggest that if Nixon had gone to prison, and Trump knew he could very well have met the same fate for breaking the law, he may well have behaved differently.
Or maybe not. But at least Trump probably would not have been able to delay his trial by claiming he’s immune from prosecution and have that seriously considered by the Supreme Court.
During Thursday’s hearing on Trump’s immunity issue, Kavanaugh used the Nixon pardon to suggest that Trump deserves at least some immunity. It signaled Kavanaugh wants to grant Trump a defacto victory either by causing a delay while the high court determines how much immunity he should be granted or telling the trial court to figure it out, thus opening the door to further delays by Trump’s inevitable appeals.
Kavanaugh argued that if Ford had been subject to prosecution, he might not have granted that pardon because he would have had the worry of being investigated for obstruction of justice “on the theory that I’m interfering with the investigation of Richard Nixon.” That's probably another good argument for why Trump's immunity claim should be immediately denied, but I digress.
Of course, there’s no sure way to know how the Supreme Court will rule. But this was not a good omen.
