Robbins: Merrick Garland weighs decision to indict Trump – Boston Herald

In October 1974, President Gerald Ford appeared before Congress to provide his rationale for pardoning former President Nixon after Nixon had resigned from office. Fords purpose in absolving Nixon of criminal prosecution for crimes including obstructing the investigation into the Watergate break-in, he said, was to change our national focus. We would, he argued, needlessly be diverted from meeting (our) challenges if we as a people were to remain sharply divided over whether to indict, bring to trial and punish a former president, who already is condemned to suffer long and deeply in the shame and disgrace brought upon the office he held.

To recall Fords preemptive get-out-of-jail-free card, issued to Americas first certifiably felonious president, is to wonder whether Ford paved the way for our second. Was Donald Trump emboldened by the precedent of letting off a criminal ex-president scot-free in order to spare the nation division? Was he encouraged by the legal opinion issued by Nixons Department of Justice in September 1973 while Nixons criminality was being exposed but before he was forced to resign that a sitting president couldnt be indicted?

Well never know. But we do know that Fords rationale for letting Nixon skate doesnt apply to the decision Attorney General Merrick Garland must make whether to ask a grand jury to indict Trump.

For starters, Nixons obstruction of the investigation into the White Houses role in Watergate may have been profoundly criminal, but it amounted to jaywalking compared with Trumps attempt and conspiracy to obstruct the Constitutionally-mandated counting of electoral votes governing the democratic transfer of power let alone the crime of conspiracy to commit sedition.

Here is one question: if a former president is not prosecuted for attempting a criminal coup to keep himself in power against the expressed will of the American people, when would he or she ever be prosecuted? Heres another: how can we look at ourselves in the mirror if someone guilty of that crime is simply allowed to walk?

The answer to the first question: never. The answer to the second: we cant.

It isnt only the magnitude of criminality that differentiates Trump from Nixon. Trump has defrauded America every time it suited him, and cheated it when he couldnt defraud it. When he couldnt do either, he simply disgraced it, and in so doing disgraced all of us.

Nixon at least slinked away with a modicum of acknowledgement that he had sullied the presidency. Trump is not merely remorseless but defiant, eager to pick up where he left off.

Still, the critical issue is whether the Justice Department has sufficient evidence to establish Donald Trumps guilt of a statutory crime beyond a reasonable doubt. If it doesnt, thats the end of it. If it does, then indictment is the necessary, if painful, course.

What happens if Trump is indicted? What happens if Trump is indicted but acquitted, remembering that all his criminal defense lawyers have to do is persuade one juror not to vote to convict? What happens if he is convicted? Will the Supreme Court dominated by justices Trump appointed really permit him to report to a federal prison?

For wisdom, Attorney General Garland may want to consider other democracies that took a deep breath and prosecuted former leaders for various crimes of corruption. France, Italy and Israel are among them, and their democracies were strengthened, not weakened, for their having done so. They judged that the cost of prosecuting dishonest leaders was lower than that of looking the other way. Whether the United States makes the same judgment is in Merrick Garlands hands.

Jeff Robbins is a Boston lawyer and former U.S. delegate to the United Nations Human Rights Commission

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Robbins: Merrick Garland weighs decision to indict Trump - Boston Herald