Trump’s Investigation Miscalculation
Donald Trump is making a serious mistake. The FBI’s execution of a search warrant at Mar-a-Lago is, he apparently thinks, of great political benefit to him. Perhaps so—I am not one to judge politics.
But public reports also suggest that he may accelerate his re-election announcement in response to the search. Trump seems to think that running for president makes it less likely that he will be prosecuted by the Department of Justice. That’s wrong. The more Trump stays in the public sphere the more likely he is to be prosecuted.
Say what you will about the wisdom of President Gerald Ford’s September 1974 pardon of Richard Nixon, one thing is clear—it was part of an implicit bargain. In exchange for letting his predecessor go unpunished, Ford was purchasing social peace. Rightly or wrongly, he thought that the pardon would put an end to “our long national nightmare.” And that, in turn, was based on the assumption that Nixon would retreat to San Clemente, drop out of politics, and fade from public view.
Much the same can be said of Independent Counsel Robert Ray’s January 2001 decision not to bring criminal charges against Bill Clinton. It was a decision designed to put an end to public controversy and avoid the uncomfortable precedent of prosecuting a former president. Clinton, in turn, explicitly acknowledged his misconduct and implicitly agreed to step back from public life.
Neither man honored his implicit promise perfectly. Nixon went on to quietly offer advice to Ronald Reagan and sought to re-emerge as an “elder statesman.” Clinton went on to vigorously support his wife’s presidential candidacies in 2008 and 2016. But each accepted the core bargain: Let me off the hook and I will stay out of politics. I get freedom; America gets social peace.
This idea is not novel, nor is it unique to presidential misconduct. While the Framers of our Constitution mostly discussed the presidential pardon power in terms of correcting injustices and showing mercy, they also understood that pardons could help ease political and social conflict. George Washington’s pardons after the Whiskey Rebellion were intended to soothe the tumultuous political waters of the day. Likewise, Jimmy Carter’s decision to pardon those who had resisted the draft and avoided service during the Vietnam War is a perfect example of this civil peacemaking function. It was an effort to end the contentious debate about the war and put it behind us.
More broadly, as Walter Olson has recently written, in describing his initial resistance to a Trump prosecution:
The law should abet civic peace. . . . Across a wide range of legal application, the unrealistic goal of perfect justice often needs to yield to the practical cause of civic peace. Few evils can match those of civil war, and if the law is to accomplish even its workaday goals, it must be accepted as legitimate by a broad public.
Just so. There is a real sense in which the general promise not to prosecute a former president after his term ends is part of the price we pay for the routine peaceful transition of power. There is a lot to be said for that, even in normal times. All the more so in these times that are far from normal.
But part of an implicit bargain is that both sides have to agree to the bargain. Ford has to pardon Nixon and Nixon has to agree to retire to San Clemente. The forbearance of the law requires the forswearing of ambition. Far from being a form of compulsion (as Trump’s lawyers seem to think), the bargain is a sensible expression of how the body politic maintains political harmony in the face of severe discord.
In many ways Trump is an idiot savant. Despite his manifest flaws he has shown an uncommonly effective ability to define a political movement and capture its energy to his own political benefit. His continuing control of Republican primaries is evidence of his ongoing influence over American politics.
But even idiot savants make mistakes. If Trump had chosen to retire to Mar-a-Lago and play golf or even if he had retreated to his resort and continued to exercise influence over the Republican party but chosen not to run again for office, I suspect that Attorney General Merrick Garland would have welcomed the excuse to forgo a prosecution of Trump (whether for the alleged presidential records violations that lie behind the search or for other offenses related to January 6th). Garland would likely have judged the precedent be too significant and the risks to civil society too extreme.
But by seriously considering running for office, and repeatedly teasing that he will run during his campaign-rally-like speeches, Trump increasingly takes the option of forbearance off the table. He mistakenly thinks that declaring his candidacy will immunize him from prosecution. But the opposite is true. By refusing to forswear ambition, he exacerbates the conditions of social conflict that make it almost mandatory for the attorney general to exercise his discretion in favor of charging Trump. Without the benefit of civil peace, the rule of law must prevail.
Trump doesn’t have it in him to fade from public view. And, in the end, that compulsion may make it impossible to excuse his misconduct.