Former FBI Director James Comey declared yesterday that he believes Joe Biden should consider granting clemency for President Donald Trump “as part of the healing of the country.” Just as I have long opposed self-pardons as an abuse of presidential power, I also have long opposed such pardons by their presidential successors. Comey is echoing the Ford rationale used in the Nixon pardon, which I continue to view as the wrong decision. Impeachments go to the status of presidents as the officeholders. Indictments go to their status as individuals. Indeed, I have long believed that presidents can be indicted while in office, including both President Bill Clinton and President Donald Trump.Comey stated “I obviously think he belongs in jail but I don’t think pursuing that is in the best interest of the entire nation.”
I fail to see the logic of the Ford position. To use Comey’s words, if “he belongs in jail,” he should go to jail. The notion that our country cannot handle the criminal prosecution of a former president borders on slander. If a president is a criminal, he belongs in jail. In Nixon’s case, he rejected the need for a pardon. Yet, Ford prevents a trial on Nixon’s culpability in the crimes of Watergate — crimes which sent various individuals to jail. That was not a victory for the rule of law or the country.
I do not believe that the President’s speech constituted criminal incitement unless there is more evidence of the President’s intent or knowledge. Many legal experts maintain that the speech, particularly in the context of his election challenge, is sufficient to convict. The D.C. Attorney General has said that he may charge Trump. So be it. I believe such a prosecution would collapse at trial or upon appeal. The legal system should be allowed to run its course.
The more threatening cases concern allegations of bank and tax fraud, including cases out of New York. There is also the election violation issue that was raised in the Michael Cohen plea bargain. In his plea, Cohen referenced election finance violations in connection to the Stormy Daniels payment. If Cohen was culpable of election violations in the Stormy Daniels matter, there is an obvious implication of that the President was also culpable.
I have never understood why it is so unnerving or destructive to try a former president. We are a country based on the rule of law. The prosecution of a former president shows that no one is above the law. That does not mean that Trump will be convicted or that these cases are valid. However, he must answer for such criminal allegations like any citizen.