Un-Precedented
The twice-impeached former President of the United States was criminally indicted in New York yesterday. The actual indictment isn’t publicly available yet, but it’s seems clear the that Manhattan Grand Jury is charging multiple offenses, including felonies. We will know more when Mr. Trump appears in Manhattan Criminal Court, sometime next week.
This is the first time a former President faces criminal charges. While other Presidents and former Presidents were scrutinized for their actions, none have actually been indicted (or indicated, as the case may be). Former President Nixon was the closest, named as an “unindicted co-conspirator” in Watergate charges. But his successor, Gerald Ford, gave him a blanket pardon for “anything he might have done” as President. So Nixon dodged the court, setting a precedent that we lived with until yesterday. As historian and author Michael Beschloss noted; the Nixon precedent opened the door for Donald Trump to do whatever he wanted.
Privilege
To tell the truth, Richard Nixon’s resigning from office was a time of celebration for me. He committed crimes in office, and it was sad that he kept the country in turmoil for more than two years. But that turmoil ended with his “victory wave” from the door of Marine One as he left the White House for the final time. For those of us who believed in equal justice before the law, we thought he should held accountable for his actions. Ford’s pardon denied the nation that closure for Nixon’s crimes.
This is only the first of many indictments Trump faces. And there is no “saving pardon” likely here. Federal charges loom from the Department of Justice, both in the classified documents case and the January 6th Insurrection. But even if President Biden (or a future Republican President) decided to grant a pardon, both the Manhattan and Georgia charges are in state courts and not subject to Federal action. Our long national nightmare of Donald Trump is going to last for another couple of years. There is little joy there. But there should be some satisfaction: no man, even a twice-impeached former President, is above the law. The Founding Fathers wrote that there would be no titles of nobility or privilege in the United States. The Constitution is fulfilled.
Constitution
No surprise that instead of accepting the Grand Jury actions, many Trump supporters, including a crying Senator Lindsey Graham, are screaming about “injustice”. Injustice really would be if a Grand Jury found that, even though Trump might have committed crimes, he could not be held accountable. But the litany of “regulars”, from Mark Levin and Sean Hannity to Graham and Marjorie Taylor Greene “scream foul”.
More worrying is the statement by Republican Governor and Presidential candidate Ron DeSantis. He basically offered Trump “sanctuary” in Florida, stating as Governor he would refuse to recognize a New York request for extradition. That all sounds “powerful”: the “Free Florida” acting as a sovereign state. But that clearly violates the US Constitution. Article IV, Section 2 states:
Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
So while DeSantis could delay the inevitable, and force New York to go to Federal Court to enforce the Constitution – in the end, if Trump decides to hide in Florida, he would be “delivered up” (Puerto Rico v Bransted 483 U.S. 219). And it would lead to US Marshals arresting a former President protected by a Secret Service detail, with all of the fuss that might create. As an acknowledged “flight risk”, Trump would then be held in confinement — Riker’s Island? And they would have to accommodate the Secret Service detail as well.
Path Forward
So DeSantis got his “sound bite’, and Trump will probably show up in Court next week. What’s of concern is that a Presidential candidate was so quick to jump on a clear Constitutional violation. Looking at his actions violating the First Amendment in Florida already, DeSantis must not have been listening in Professor Tribe’s Constitutional Law class at Harvard Law School.
Donald Trump put our nation in un-precedented times. Every action we take determines not only his fate, but what we expect from our future leaders. Ford took the “easy way out” in 1974, avoiding the pain of a Nixon trial and possible incarceration. But by avoiding that pain, it set the stage for our current agony. There is only one correct path forward: allow justice to take its course.
