One of the judges’ attempts to explore practical considerations, however, raised eyebrows. Justice Brett M. Kavanaugh invoked Gerald Ford’s pardon of Richard Nixon 50 years ago, while suggesting that presidents should perhaps be somewhat insulated.
“What would you say – I think this has already been mentioned – about President Ford’s pardon? » Kavanaugh asked. “Very controversial right now – extremely unpopular, probably why he lost in 1976. It’s now considered one of the best decisions in presidential history, I think, by most people. people.
“If (Ford) asks himself, ‘Well, if I grant this pardon to Richard Nixon, could I myself be investigated for obstruction of justice based on the theory that I interfere with the investigation into Richard Nixon? »
The idea seemed to be that this was a president doing something he might have feared was legally risky and that the American people did not want – but history has now borne it out. And perhaps Ford would not have made such a contribution to his country if the fear of prosecution had proved pervasive.
But it’s not as clear that Americans revere the decision as much as Kavanaugh suggests.
Kavanaugh is correct that the pardon could very well have cost Ford the 1976 election and that public opinion has warmed to the decision over the years. A Gallup poll showed support for the pardon rising from 38 percent shortly before he offered it to 35 percent in 1976, but as high as 54 percent in 1986.
A Washington Post/ABC News poll tested the decision again in 2002 and found even stronger support: 59 percent of Americans said Ford did the right thing, while 32 percent said he did the bad thing – a margin of almost 2 to 1. .
But more recent polls suggest that is no longer really the case. Polling firm YouGov asked such questions in 2014 and 2018, and Americans were actually evenly split.
In the 2014 poll, 34 percent said Ford should have pardoned Nixon, but 32 percent said he should not have. The 2018 poll — notably taken during Trump’s presidency and after Trump talked about pardoning himself — showed that nearly 4 in 10 people approved and disapproved of Nixon’s pardon.
This latest poll, notably, also showed that only 15 percent were “strongly” in favor. We are far from what “most people” consider “one of the best decisions in presidential history”.
Kavanaugh may have been referring to academics, some of whom have taken a more positive view of grace in the decades since.
But even that doesn’t come close to a consensus. If there was anything like consensus at one point, Trump’s flouting of the law as president from 2017 to 2021 has sparked real reflection on the wisdom of having absolved a former president plagued by scandals for criminal acts. If Nixon had been tried and eventually convicted, perhaps Trump would not have flown so close to the sun. Setting a precedent by punishing a former president for corruption and holding him to account could have meant that no one is truly above the law.
If anything, Kavanaugh citing this example appears to demonstrate sympathy from him and his fellow conservatives for at least the broad strokes of Trump’s argument — that presidents should not have to constantly fear criminal retaliation once they leave their functions. And it is at least somewhat logical to think that such fear could paralyze their decision-making and prevent them from doing things that prove vital to the well-being of the country.
It’s just that Nixon’s pardon is not a good example of a risky but necessary decision that Americans now view as something a president should feel empowered to make. Perhaps there was a time, but not now, that another former president was accused of dirty tricks, forcing the Supreme Court to take up the issue.
washingtonpost
