- Monday, June 12, 2023

On Sept. 8, 1974, President Gerald Ford issued Proclamation 4311 giving “a full and unconditional pardon” to former President Richard Nixon. The pardon caused an immediate firestorm that likely resulted in Ford’s loss in the 1976 election.

Nixon had engaged in egregious conduct, with many of his acts being highly susceptible to criminal prosecution. Such prosecution was, in fact, imminent. Ford, against every political imperative, chose to put his predecessor outside the reach of prosecutors.

Political repercussions were expected and did not fail to rain down on Ford. As a result of his act, however, the nation was spared the agony of the prolonged spectacle of a former president sitting in a courtroom with the possibility of receiving and serving a lengthy prison sentence.

Watergate, the scandal that had brought Nixon down, had been divisive enough. Ford accurately perceived that a criminal prosecution of Nixon would exacerbate the divisiveness and cause incalculable harm to the nation.

There was extensive outrage when Ford issued the pardon. Opponents of Nixon were incensed that they would be denied the opportunity to further punish a person they considered a miscreant. Nixon supporters seemed to believe that the issuance of a pardon reenforced the notion that Nixon had been guilty of crimes without giving him an opportunity to defend himself.

But the passage of time has confirmed the wisdom of Ford’s decision to pardon Nixon. We were able to put the Watergate debacle behind us in just a few years, with Nixon fading into retirement and obscurity. Eventually, the United States healed. By the time of the Reagan administration less than seven years later, we had entered a new and more optimistic era.

Last week’s indictment of former President Donald Trump recalls in a number of ways the events of the late summer of 1974.

A former president is facing a criminal prosecution, with the likelihood of distracting the attention of the nation for months, if not years, regardless of the ultimate outcome. The criminal proceedings can only aggravate the deep divisions in our country. Many chronic detesters of Mr. Trump see in his indictment the opportunity to punish him. Supporters of Mr. Trump perceive his indictment as part of the ongoing persecution of the man and of his growing martyrdom, fueling their support.

Perhaps President Biden should heed Ford’s example and give consideration to his courageous action in pardoning his predecessor. Just as the pardon of Nixon was difficult and very costly politically  for Ford, any pardon by Mr. Biden of his predecessor would assuredly have very negative consequences for him personally. But it just might be the right thing to do.

An unconditional federal pardon of Mr. Trump would, as an initial matter, remove the spectacle of criminal proceedings against a former president who is also the leading candidate for the nomination for president of a major political party, with the inference of electoral interference. It would also put an end to the accusation that the federal justice system and the Biden administration are treating Mr. Trump unfairly and that Republicans are more susceptible to attack than Democrats such as Hillary Clinton. It would remove the halo of martyrdom that is elevating Mr. Trump in the polls and among his hard-core supporters.

Of course, the left-wing progressives and anti-Trumpers would be outraged, just as the Nixon-haters were incensed when Ford pardoned his predecessor. But independents might feel relieved, and some Republicans, who increasingly view Mr. Biden as unremittingly partisan and veering too far left, might give Mr. Biden credit for this actions and a few might even be inclined to vote for him or another Democrat.

Far more importantly, there is the benefit to the nation as a whole. Whether any healing of the rift between progressives and conservatives would occur is highly speculative, but a pardon would prevent its aggravation.

Then, there is the judgment of history. Ford was reviled and deemed weak by reason of his pardon of Nixon at the time. Today, the consensus is different. The pardon now appears as an act of statesmanship and moral courage. Since Ford did not achieve much in his brief tenure as president and was generally considered intellectually unimpressive, indecisive and without any ideological mooring, the pardon stands out as one of his few notable acts.

It can be argued that Mr. Biden displays no great intellectual prowess either. He does not appear to have much of a vision for the nation, being buffeted by hard-left progressives to adopt policies that seem quite inconsistent with his positions over the course of his long political career. As a consequence, history is likely to be unkind to Mr. Biden. The Afghanistan debacle, the immigration crisis, rampant inflation, increased Chinese power, and growing crime in our cities will stand out as the hallmarks of an undistinguished presidency. But a magnanimous pardon of Mr. Trump could change the historical assessment.

There is one other potential benefit to Mr. Biden in issuing a presidential pardon to Mr. Trump: the dilemma it would pose for Mr. Trump. If Mr. Trump accepts the pardon, he will be seen as conceding that he acted improperly — a difficult if not impossible step for him. If he does not, he will make Mr. Biden appear even more magnanimous, which will likely cost Mr. Trump support from some of his voters who do not relish the thought of this presidential drama. The halo of martyrdom may slip away.

Ford seems to be calling out to Mr. Biden to emulate his action of 1974. We can only hope that Mr. Biden’s age will not have rendered him deaf to this important call.

• Gerard Leval is a partner in the Washington office of a national law firm. His book, “Lobbying for Equality: Jacques Godard and the Struggle for Jewish Civil Rights During the French Revolution,” was published by HUC Press last year.

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