It appears unlikely that the Supreme Court will grant Donald Trump the full immunity he claims he’s entitled to as a former president, despite his four indictments.
But the court’s conservative justices on Thursday appeared receptive to the idea that future presidents might need more limited forms of immunity to carry out their duties and not have to worry about politically motivated prosecutions — in a way that could further delay Trump’s trials.
One of the justices’ attempts to explore the practical considerations, though, raised eyebrows. Justice Brett M. Kavanaugh invoked President Gerald Ford’s 50-year-old pardon of Richard Nixon, while suggesting that perhaps presidents need to be somewhat insulated.
“How about — I think it came up before — President Ford’s pardon?” Kavanaugh asked. “Very controversial in the moment — hugely unpopular, probably why he lost in ’76. Now looked upon as one of the better decisions in presidential history, I think, by most people.
“If [Ford is] thinking about, ‘Well, if I grant this pardon to Richard Nixon, could I be investigated myself for obstruction of justice on the theory that I’m interfering with the investigation of Richard Nixon?’”
The idea seemed to be that this was a president doing something he might have feared was legally dicey and that the American people didn’t want — but that history has now affirmed it. And perhaps Ford wouldn’t have done his country this very significant solid if the fear of prosecution proved overbearing.
But it’s not so clear that Americans revere this decision nearly as much as Kavanaugh suggests.
Kavanaugh is right that the pardon might well have cost Ford the 1976 election, and also that public opinion warmed to the decision over the years. Gallup polling showed support for the pardon going from 38 percent shortly before he offered it to 35 percent in 1976, but up to 54 percent by 1986.
A Washington Post/ABC News poll tested the decision again in 2002 and found even stronger support: 59 percent of Americans said Ford had done the right thing, while 32 percent said he had done the wrong thing — a nearly 2-to-1 ratio.
But more recent polling suggests that’s not really the case anymore. The pollster YouGov asked such questions in both 2014 and 2018, and Americans were actually about evenly split.
In the 2014 poll, 34 percent said Ford should have pardoned Nixon, but 32 percent said he shouldn’t have. The 2018 poll — notably conducted during Trump’s presidency and after Trump had talked about pardoning himself — showed that nearly 4 in 10 approved of the Nixon pardon and about the same number disapproved.
That latter poll also, notably, showed just 15 percent “strongly” approved. It’s a far cry from “most people” regarding it as “one of the better decisions in presidential history.”
Perhaps Kavanaugh was referring to scholars, some of whom have adopted a more positive view of the pardon in the intervening decades.
But even that doesn’t approach a consensus. If there was something like a consensus at one point, Trump’s flouting the law as president from 2017 through 2021 occasioned some real reflection about the wisdom of having absolved a scandal-plagued former president of criminal wrongdoing. If Nixon had been tried and possibly convicted, the argument goes, maybe Trump wouldn’t have flown so close to the sun. Setting the precedent of actually punishing a former president for corruption and holding him to a full accounting might have signaled that truly nobody is above the law.
If anything, Kavanaugh citing this example would seem to speak to his and his conservative colleagues’ sympathy for at least the broad strokes of Trump’s argument — that presidents shouldn’t have to constantly fear criminal reprisals once they leave office. And it’s at least somewhat logical to think such a fear could hamstring their decision-making and prevent them from doing things that turn out to be vital for the country’s well-being.
It’s just that the Nixon pardon isn’t a great example of a dicey but necessary decision Americans now regard as something a president should feel empowered to do. Maybe it was at one time, but not now that another former president has been accused of dirty tricks, compelling the Supreme Court to take up the question.
correction
A previous version of the photo caption with this article incorrectly identified Gerald Ford as vice president in 1969. At the time, he was House minority leader.
Source link: https://www.washingtonpost.com/politics/2024/04/25/kavanaugh-says-most-people-now-revere-nixon-pardon-not-so-fast/