I voted to impeach Nixon: Here’s the case to prosecute Trump

There is evidence Donald Trump may have committed federal crimes. As long as he’s president, Trump has temporary protection from prosecution, but once he leaves office, should he be prosecuted? Or should he be left alone in the interest of healing the country’s partisan divide?   

President-elect Joe Biden is right to say that his Department of Justice (DOJ) will handle any investigation of Trump, or prosecution if it comes to that, in the normal course. That means the DOJ will conduct a professional assessment of the case, undertake any additional inquiries and determine if a rock-solid prosecution can be brought — and, if it can, bring it. For a country adhering to the rule of law, there really is no other choice.

Former special counsel Robert Mueller identified 10 ways Trump might have obstructed justice in connection with the Russia collusion investigation. Mueller did not determine whether Trump should be indicted, but nearly 700 former U.S. prosecutors believed there was enough evidence for prosecution. Other possible criminal misconduct, such as Trump’s financial dealings and his efforts to upend the 2020 election, may also warrant examination.

Presidents are not entitled to immunity. The constitution explicitly states that a president can be tried and prosecuted for crimes committed in office. Former President Nixon and Trump himself were subjects of criminal investigations, and a grand jury named Nixon an unindicted co-conspirator.

If presidents who commit crimes in office cannot be prosecuted while in office — and aren’t to be prosecuted when they leave — they have impunity. That presents a grave threat to our democracy by removing the strongest deterrent to presidential criminality.

We cannot be seduced by the “healing” argument — the notion that somehow, if we let bygones be bygones, we can move forward as a country as though Trump, and the havoc he has wrought, never happened and won’t recur.

That is fantasy. 

Is “healing” a more important national objective than protecting our democracy from future presidents who commit crimes thinking they’re immune from criminal law? Is it more important than the principle of equality under law, so that a spy who sells secrets to China gets punished but a president who conspires with Russia, say, to win an election, doesn’t?

And, after all, what possibility exists that refusing to prosecute Trump will help us heal? Out of office, Trump is likely to remain a vocal force, goading his supporters with lies and seeking to divide the country. It is also highly unlikely that Biden would get much credit for a healing gesture if he stopped Justice Department action against Trump. Trump would undoubtedly claim it proves he did nothing wrong.

Former President Ford’s pardon of Nixon gave the notion of presidential impunity its real impetus.

As a member of the House Judiciary Committee that voted to impeach Nixon, I challenged Ford when he testified before Congress about the pardon. Ford said that the country needed “tranquility,” not “prolonged and divisive debate” about Nixon’s punishment. Those arguments resonate today. But I had little concern about tranquility because America had already withstood the Nixon impeachment effort without serious unrest. I was much more concerned that setting a precedent of presidential impunity and establishing a dual system of justice — one for presidents and another for everyone else — would come back to haunt us.

And it did.

Former President George W. Bush may have violated U.S. criminal anti-torture laws in the Iraq War, but nothing happened to him. Did the failures to prosecute Nixon or investigate Bush lead Trump to believe he was untouchable, encouraging him to flout our laws, the constitution and longstanding norms? If Trump is given a pass, it sends a message of impunity to future presidents — including Trump, should he run again. That path will lead to worse division and unrest the next time we elect a president who thinks he or she is above the law.

On the other hand, what happens if the DOJ acts against Trump? Could that change some minds and bring about some healing? 

Possibly.

In 1972, Nixon won reelection in one of the biggest landslides ever. But after the Senate Watergate hearings and the House impeachment proceedings against him, opinion dramatically shifted. By the time Nixon resigned in August 1974, fewer than 25 percent of Americans still supported him. Fair and honest exposition of the facts brought the country together.

This may be harder to achieve today, given how Trump and right-wing media promulgate “alternative facts.” Still, a serious investigation and prosecution, resting on robust evidence and conducted fairly, may have a similar effect as the Watergate hearings. Even if Trump’s core supporters aren’t persuaded by airing factual evidence, millions of other Americans will be. Most importantly, prosecuting Trump would set an indelible precedent — and lay down a marker that future presidents must heed.

Elizabeth Holtzman served in Congress for four terms as a Democratic representative from New York. She was a member of the House Judiciary Committee during the Watergate investigation involving Richard Nixon. She is a Harvard Law graduate and the author of “The Case for Impeaching Trump.”