Opinion | Mitt Romney's Trump pardon argument has a massive flaw

Sen. Mitt Romney, R-Utah, says that President Joe Biden made a big mistake in not immediately pardoning former President Donald Trump when federal charges first dropped last year. “I mean, you may disagree with this, but had I been President Biden, when the Justice Department brought on indictments, I would have immediately pardoned him ... President Trump,” he said in an exclusive interview on MSNBC’s “The 11th Hour with Stephanie Ruhle” that aired Wednesday night. “Why? Well, because it makes me, President Biden, the big guy and the person I pardoned a little guy.”

"And, frankly, the country doesn’t want to have to go through prosecuting a former president," Romney added. The suggestion that Biden clear Trump of federal charges to insulate the populace from the strife of a contentious prosecution isn’t exactly new. Likewise, Biden said repeatedly during the 2020 primary and general election that pardoning Trump was off the table. But the fact that the idea keeps resurfacing speaks to its enduring, and in my opinion undeserved, place in our political mythos.

Rather than a requirement for national unity, Richard Nixon’s pardon after resigning as president was an easy escape hatch to avoid a much more difficult, and necessary, reflection on what it means when a president breaks the law. The idea that the Nixon pardon was a magnanimous gesture that was necessary for the good of the country is one that conservatives have pushed loudly since Trump left office in 2021. Supreme Court Justice Brett Kavanaugh claimed (somewhat erroneously) last month that it was “looked upon as one of the better decisions in presidential history, I think, by most people.” The National Review’s Rich Lowry made a similar argument last year, as did the American Enterprise Institute’s Danielle Pletka and Marc Thiessen, soon after the first of Trump’s federal indictments was handed up.

Things weren’t so clear at the time. The same day that Gerald Ford ascended to the presidency upon Nixon’s resignation, the Justice Department was busy weighing whether to bring criminal charges against Nixon. The resulting memo drafted by aides to the Watergate special prosecutor feels extremely prescient to read today. In examining the pros and cons, it cites several familiar reasons for why prosecuting a former president might be disruptive to the fabric of the country.

But while each side has the same number of points listed, the reasons for prosecuting Nixon are more stridently argued. The first and second of those points particularly stand out in opposition to Romney’s reasoning:

In the end, Ford erred toward the belief that resignation was enough of a punishment for Nixon (one, I will note, that Trump was not forced to endure). And while he may have personally seen pardoning Nixon as an act of mercy toward a broken man, the urge to move on from Nixon’s scandals was also political necessity for the GOP. The questions Ford faced in his first news conference after taking office in the wake of Nixon’s resignation were almost all about Watergate. Even after Ford signed the pardon in September 1974, Republicans lost 49 seats in the House and five in the Senate as the public punished the party in the midterm elections.

Two years later, the public was still in agreement that the pardon was a bad look for Ford, whose approval rating never fully recovered from the massive hit it initially took after the pardon. It took the public over a decade to begin to come around to the narrative that the pardon was required for the healing of the country, and that belief has wavered in polls since then. It has proved to be a Band-Aid over a much deeper trauma to the nation that is still gnawing away at us today as Trump is on trial in New York, facing criminal charges.

“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,” historian Julian Zeller wrote last year.

“He made a blunder on the Nixon pardon,” Ford’s former press secretary Jerald terHorst, who resigned in protest over it, likewise said during a 2009 interview, which was published in 2011 after his death the previous year. “It wasn’t so much that I objected to the pardon as it was that it set one man above the law. We don’t do that in our country.”

Whether he likes it or not, the elevation of one man above the law is exactly what Romney supported in his interview with Ruhle. Because he also argued that beyond a federal pardon, Biden should have leaned on prosecutors in New York and Georgia not to bring state-level indictments against his predecessor. If Lyndon B. Johnson had faced a similar situation when he was president, Romney said, “he’d have been all over that prosecutor saying, ‘You better not bring that forward or I’m gonna drive you out of office.'”

Imagine if a president had followed that advice, choosing to pressure and threaten prosecutors for applying an equal standard of justice, for, say, a political donor. It would have been a scandal of immense proportion, something that doesn’t change just because we’re talking about a former president. Had Biden followed Romney’s advice, putting his thumb on the scales in ways that exceed the scope of his office, it would have been an unfair application of justice on par with the very acts for which we have rightly castigated Trump.

Romney deserves credit for voting to convict Trump in both of his impeachment trials. For doing so, he won the John F. Kennedy Profile in Courage award — the same award that Ford was granted in 2001 for his pardon of Nixon. Unfortunately, I cannot agree that letting Nixon off the hook for his crimes was particularly courageous, and especially not when it seeds Trump’s argument that accountability and revenge are one in the same. Similarly, I believe that heeding Romney’s recommendation, no matter how well meaning, would have been an act of cowardice on Biden’s part, not justice.

This article was originally published on MSNBC.com