Just days before The Washington Post reported that the Justice Department is investigating former president Donald Trump for his role in the Jan. 6, 2021, insurrection, Attorney General Merrick Garland repeated an oft used maxim.
“No person is above the law,” Garland told a reporter last week. “I’ll say that again: No person is above the law in this country. I can’t say it any more clearly than that. There is nothing in the principles of prosecution, in any other factors which prevent us from investigating anyone — anyone — who is criminally responsible for an attempt to undo a democratic election.”
The problem with Garland’s statement, and the very thing that will make the investigation and prosecution of Trump as difficult as it is necessary, is that history disproves it. Presidents of the United States who have been suspected or accused of unlawfulness or even criminality have never been held accountable. It’s exactly the precedent Trump counted on when he incited, refused to stop, then sat back and watched the deadly attack on the US Capitol. And it is exactly why Merrick Garland cannot miss.
The job of Garland and DOJ investigators is monumental, not just because assembling a criminal case against Trump for seditious conspiracy, obstruction of an official proceeding, and/or fraud — the crimes for which Trump is being investigated, according to the Post — requires that prosecutors meet every element of each charged offense.
It will be enormously hard because prosecuting Trump will buck historical precedent, because no president has been held accountable for wrongdoing. That history is precisely why we are where we are: a year and a half after an attempted coup, and in grave danger of a successful one being carried out in the not-so-distant future. It’s up to the Justice Department — and Congress — to ensure that every future president knows that lawlessness will have consequences.
Even if the law is on Garland’s side, history is not. The clearest case is the pardon of Richard Nixon for his role in the break-in at the Democratic National Committee’s offices at the Watergate and the subsequent cover-up. President Gerald Ford later told a congressional committee that he issued the pardon because he thought Nixon’s prosecution would have meant “the attention of the president, the Congress, and the American people would have been diverted from the problems that we have to solve.”
Hindsight proves Ford actually created a bigger problem. Just a few years later, in a 1977 interview with David Frost, Nixon plainly stated the de facto standard for occupants of the Oval Office: “Well, when the president does it, that means that it is not illegal.”
The truth is that was the standard before Nixon’s pardon, and it has remained so ever since as demonstrated by presidential lawlessness of varying levels of severity.
It was what allowed the cronyism and corruption that led to the Teapot Dome scandal during the Warren Harding administration (though it was Harding’s sudden death in office that allowed him to escape accountability.)
It was why the Iran-contra affair could happen. As historian Malcolm Byrne wrote in his book about the illegal arms trade deal backed by former president Ronald Reagan: “What emerges from the instances of deception and post hoc rationalizations sanctioned by Reagan and top levels of his administration is that US ofﬁcials routinely prioritized their narrow policy and political interests over legal and even constitutional responsibilities.” Reagan, of course, was never indicted, though others were.
It’s what gave former president Bill Clinton the hubris to lie under oath about a sexual relationship with his intern.
It’s even codified in an ill-conceived Justice Department internal policy barring the indictment of sitting presidents.
It’s why if Trump ever holds office again his next coup will be successful.
One troubling aspect of the Post report is what it doesn’t say: Absent from the list of potential charges against Trump is the crime of insurrection, which carries as a penalty in addition to fines and imprisonment the prohibition against “holding any office under the United States.” Even if Trump is convicted of conspiracy, obstruction, or fraud, it would require Congress to pass legislation that gives enforcement teeth to the 14th Amendment’s ban on anyone who held federal office and “engaged in insurrection or rebellion” against the United States from ever holding office again. If, after the evidence already presented by the Jan. 6 committee, there is not already such a bill drafted and ready to go in the House and Senate, the leaders in both houses are also shirking their duties.
Absence of accountability is what allowed an assault on our very democracy. The most important task before the Justice Department and Congress is changing that course. Our future as a nation depends on it.