Why Brett Kavanaugh’s 'Nixon pardon' argument doesn’t work in Trump’s case: analysis

The US Supreme Court last week heard Donald Trump's argument that he should immune from federal prosecution — particularly in reference to special counsel Jack Smith's January 6 election interference case against the ex-president.

During the oral arguments on April 25, Justice Brett M. Kavanaugh made a claim that The Washington Post's Aaron Blake challenges in a Monday, April 29 analysis.

"Kavanaugh invoked President Gerald Ford’s 50-year-old pardon of Richard Nixon, while suggesting that perhaps presidents need to be somewhat insulated," Blake writes.

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The justice asked, "How about — I think it came up before — President Ford’s pardon? Very controversial in the moment — hugely unpopular, probably why he lost in ’76. Now looked upon as one of the better decisions in presidential history, I think, by most people. If [Ford is] thinking about, 'Well, if I grant this pardon to Richard Nixon, could I be investigated myself for obstruction of justice on the theory that I’m interfering with the investigation of Richard Nixon?'"

Blake writes:

If anything, Kavanaugh citing this example would seem to speak to his and his conservative colleagues’ sympathy for at least the broad strokes of Trump’s argument — that presidents shouldn’t have to constantly fear criminal reprisals once they leave office. And it’s at least somewhat logical to think such a fear could hamstring their decision-making and prevent them from doing things that turn out to be vital for the country’s well-being.

It’s just that the Nixon pardon isn’t a great example of a dicey but necessary decision Americans now regard as something a president should feel empowered to do. Maybe it was at one time, but not now that another former president has been accused of dirty tricks, compelling the Supreme Court to take up the question.

The Post senior political reporter emphasizes that the justice "is right that the pardon might well have cost Ford the 1976 election, and also that public opinion warmed to the decision over the years," considering the fact "Gallup polling showed support for the pardon going from 38 percent shortly before he offered it to 35 percent in 1976, but up to 54 percent by 1986."

In 2002, Blake notes, a Washington Post/ABC News poll revisited the issue once more, "and found even stronger support: 59 percent of Americans said Ford had done the right thing, while 32 percent said he had done the wrong thing — a nearly 2-to-1 ratio."

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Blake suggests "more recent polling suggests that’s not really the case anymore. The pollster YouGov asked such questions in both 2014 and 2018, and Americans were actually about evenly split."

In the 2014 poll, 34 percent said Ford should have pardoned Nixon, but 32 percent said he shouldn’t have. The 2018 poll — notably conducted during Trump’s presidency and after Trump had talked about pardoning himself — showed that nearly 4 in 10 approved of the Nixon pardon and about the same number disapproved.

Blake reports, "Princeton University historian Julian Zelizer wrote last year that 'Ford entrenched a damaging norm that became part of our nostalgia, pushing leaders away from taking legal action against elected officials who abused their power.'"

The Post reporter also notes former US Rep. Elizabeth Holtzman (D-NY) wrote last year, "It set a terrible example, as I predicted at the time, by fostering the idea of presidential impunity. Perhaps if the criminal process had been allowed to work itself out in Nixon’s situation, Trump would not have thought he was immune from accountability, and his behavior would have been different."

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Blake's full analysis is here (subscription required).