Philip Allen Lacovara has served as counsel to the Watergate special prosecutor, deputy U.S. solicitor general and president of the D.C. Bar.
Special prosecutor Leon Jaworski had replaced the original Watergate special prosecutor, Archibald Cox, after the so-called Saturday Night Massacre in October 1973. Jaworski resisted the strenuous recommendation from the staff that Nixon should be indicted along with his principal aides for complicity in covering up responsibility for the break-in at the Watergate offices of the Democratic National Committee. He was willing to allow Nixon to be included only as an “unindicted co-conspirator.”
That disparate treatment struck at the core value that had driven the very creation of the Watergate special prosecutor’s office. As Cox had said when resisting Nixon’s command to give up trying to secure the subpoenaed White House tapes, no man is above the law, including the president. To indict the men who acted on Nixon’s behalf and under his direction, but to leave him on the sidelines, undercut that crucial principle.
Once the Supreme Court’s decision forced Nixon to release the “smoking gun” tape, leaving Nixon with no alternative but to resign, any constitutional doubt about indicting a sitting president evaporated. Nixon then enjoyed no special claim to be treated more favorably than his confederates.
Once again, I and other members of the Watergate prosecution team urged Jaworski to bring Nixon before the bar of justice, together with former attorney general John Mitchell, former White House counsel John Ehrlichman, former chief of staff H.R. Haldeman, and others, who were awaiting trial.
Jaworski demurred, to give Ford time to decide whether to forestall any prosecution, and Ford strode into the breach by issuing the pardon. Following in the footsteps of former White House counsel John Dean and other White House aides and campaign officials who already had pled guilty, Mitchell, Ehrlichman, and Haldeman eventually were convicted and went to prison.
And Nixon? He went off to his estate in San Clemente, to write books and bask in the role of an elder statesman.
Garland now must decide whether to spare Trump from sharing the fate of hundreds of his supporters who answered his call to storm the Capitol on Jan. 6 to “stop” the fictitious “steal.” Almost 900 men and women already have pleaded guilty to various federal crimes or are awaiting trial for doing Trump’s bidding for their insurrection.
The public record of Trump’s responsibility includes his statements leading up to the infamous day, plus his incendiary remarks at the rally on the Ellipse, and the dangerous taunting of Vice President Mike Pence even after Trump knew that his mob had breached the Capitol. This evidence should be sufficient to convince any objective prosecutor that Trump bears culpability for a laundry list of serious federal felonies. The evidence so skillfully displayed by the House Jan. 6 Select Committee provides a template for criminal charges of conspiracy to defraud the United States of its lawful functions, obstruction of congressional proceedings, seditious conspiracy and inciting insurrection.
That last offense is particularly serious. The federal criminal code prescribes that anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, … shall be incapable of holding any office under the United States.” Based on the hearings so far, this is just what Trump appears to have done.
The justice system is the last mechanism available to hold Trump equally accountable for the grave crimes that he has spawned.
In one of the most naive observations in American political history, Maine Republican Sen. Susan Collins explained her vote to acquit Trump after his first impeachment: “I believe that the president has learned from this case” and he “will be much more cautious in the future.” Trump’s behavior since then showed that his acquittal in both impeachments simply emboldened him.
The twin goals of the criminal law — deterrence and retribution — require that the attorney general not imitate Ford’s blunder by giving a unique “get out of jail free” pass to a man so determined to grasp power at any cost.