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The Attorney General’s Choice

Thomas O'Halloran/PhotoQuest/Getty Images

President Gerald Ford appears at a House Judiciary Committee hearing about his decision to pardon Richard Nixon, October 17, 1974

On the afternoon of August 30, 1974, President Gerald Ford gathered four of his top advisers in the Oval Office. “I’m very much inclined,” he told them, “to grant Nixon immunity from further prosecution.” For the previous twenty-one days, since Richard Nixon’s resignation, Ford had been playing a game of chicken with Watergate Special Prosecutor Leon Jaworski over Nixon’s legal fate. Jaworski had long since concluded that Nixon had engaged in criminal acts. But should he be prosecuted, or would abstaining better serve the interests of national healing? That was a question Jaworski felt Ford, rather than he, should answer.

Oddly, no similar standoff exists today. All eyes are on how Attorney General Merrick Garland will resolve the question of whether Donald Trump should be prosecuted for his role in trying to overturn the results of the 2020 election, which led to the insurrection on January 6. But that singular attention is misplaced. As in 1974, the Department of Justice has a responsibility here, but so does the president, and neither may interfere with the other. The president cannot tell the department whether or not to indict. And if the department determines there is sufficient evidence to convict Trump of criminal acts and the principles of federal prosecution counsel in favor of an indictment, DOJ has no jurisdiction to do anything other than indict. It would be beyond its proper powers to weigh whether indicting would be in the national interest. That is a decision reserved to the president through the power to withhold or issue a pardon.

The Watergate prosecution team raised this point to Jaworski in 1974, writing in a memo that when “familiar factors of prosecutorial discretion…uniformly dictate prosecution,” prosecutors have an obligation to rely on this “traditional compass” rather than to “try to make a decision based on a mixture of perceived public sentiment and long-range public policy choices.” To do the latter would be to make a “‘political’ decision on the issue” that is reserved to the political actors—Congress or the president—to make.

President Ford understood this division of responsibilities. Speaking to the press two days before the Oval Office meeting at which he announced his inclination to his staff, he described the difference between his job and the attorney general’s: “I think the special prosecutor, Mr. Jaworski, has an obligation to take whatever action he sees fit in conformity with his oath of office [with respect to] any and all individuals.” But when asked whether Nixon should be granted immunity from prosecution, Ford declared, “In this situation, I am the final authority.”

This division of responsibilities has to do with the different capacities of the two offices, which the Founders recognized and historical practice has affirmed. In typical cases, prosecutors exercise broad discretion over whether to indict, even when a crime has been committed. This is such a routine part of the prosecutorial function that the Department of Justice has guidelines for how its lawyers should exercise it. According to the Justice Department manual for US attorneys:

The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

Barring other considerations, those standards (which also specify that a defendant’s political popularity is an impermissible reason to decline prosecution) would require indictment in either the case of Nixon or of Trump. However, the former Justice Department official Jack Goldsmith, among others, has argued that prosecuting a former president requires the attorney general to ask a further question, not included in the Justice Department’s instructions: “whether the national interest would be served by” doing so. “This is not a question,” Goldsmith adds, “that lawyerly analysis alone can resolve. It is a judgment call about the nature, and fate, of our democracy.”

But precisely because that question cannot be answered by “lawyerly analysis alone,” it is a mistake to make the attorney general responsible for answering it. “Whether the national interest would be served by” prosecuting a former president is, as the Watergate prosecution team recognized, fundamentally not a legal question—the principles of federal prosecution offer no guidance for answering it—but a political one. It is, in other words, a values-based question about how government can best advance what George Washington called the “public good.” “The only factor (apart from matters of health) preventing the prosecution of a case with evidence of serious criminality as strong as that which we had against ex-President Richard Nixon would be political in nature,” the former Watergate prosecutor Richard Ben-Veniste told us in an interview. “Such a decision would not be in the province of the prosecutor, but rather would rest in the pardon power that can be exercised only by the president.”

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This is true not only because of the presidency’s greater capacity to balance all the political interests at stake, but also because the president, not the attorney general, is directly accountable to the people. Jaworski understood this. As described in 31 Days, the historian Barry Werth’s excellent recounting of his deliberations, the Watergate special prosecutor “worried that the decision he now faced” of whether to abstain from indicting a former president who had committed crimes “should not be left to a lone prosecutor unaccountable to voters.”

The different powers of the two offices also counsel in favor of this division of responsibilities. If a former president committed crimes—which would be important for the public to know—the attorney general does not have a means of establishing that fact while simultaneously declining to prosecute. Cases in which the Department of Justice has tried to fault a subject’s behavior while declining to prosecute have gone poorly. When Robert Mueller declined to recommend prosecuting Donald Trump but also declined to absolve him of criminal liability for obstructing justice, it caused more confusion and consternation than resolution. The public had no forum in which to learn if the president had committed a crime, and the president had no forum in which to exonerate himself from the suggestion that he had. And while James Comey’s decision not to prosecute Hillary Clinton for allegedly mishandling government e-mails at least followed the standard US attorney manual guidelines, his attempt to explain that decision while at the same time—in spite of Justice Department protocols—faulting her actions led to similar confusion and controversy.

If one believes that it is best for the future of the nation neither to prosecute a former president nor to erase or ignore that former president’s criminal acts, only the president has the appropriate means to thread that needle: namely, the power to pardon. In his deliberations, Ford found it especially persuasive that as far back as 1915, the Supreme Court had held that a pardon “carries an imputation of guilt; acceptance a confession of it.”

Historians, politicians, and journalists have generally come to view Ford’s decision to grant Nixon a pardon favorably. We have our doubts about whether it was the right one, and we are strongly of the view that a similar decision about Trump would be unwise, but that is another matter. Ford defended his decision for the rest of his life, primarily because he believed that it established Nixon’s guilt. During an interview with Bob Woodward in 1998, Ford pulled a crumpled clipping of that Supreme Court quote out of his wallet and said, “I’ve got it in my wallet here because any time anybody challenges me I pull it out.”

The Founders also grasped the difference between the normal judgments delegated to prosecutors and questions that should be left to presidents in moments of national crisis. Arguing in favor of the pardon power to the people of New York during the ratification debates, Alexander Hamilton suggested that “in seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.” This is precisely the consideration many are now asking Merrick Garland to take into account. But the Founders deliberately gave this power to the president alone, and courts have repeatedly held that it cannot be delegated. 

In his memoir about the Watergate-era deliberations, Ben-Veniste wrote:

Should we as prosecutors proceed strictly according to the evidence? Or should we try to take into account the “public interest” and decide in our own minds whether it would be too divisive for the country to have Nixon indicted, thus prolonging the agony of Watergate? There was strong feeling among the [Special Prosecutor’s team] that the latter approach would be wrong. A decision not to prosecute Nixon in order to save the country further Watergate anxiety, we believed, should be made if at all by a more representative body, namely Congress. If the country didn’t want us to pursue Nixon, better for that consensus to be expressed through legislation or congressional resolution than by the lone decision of one prosecutor not accountable to the electorate.

And yet the Founders didn’t give that power to Congress, as Justice Joseph Story recognized. Writing in his Commentaries on the Constitution (1833) about pardons and the crime of treason (which is not far removed from the crime of seditious conspiracy that is among those for which former president Trump might be charged), Story explained that the Founders thought “the head of the nation” would be better situated than Congress to “weigh the motives for and against the remission of the punishment.” He doesn’t even mention the attorney general.

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In the aftermath of Watergate, at a crucial moment for clarifying the division between the responsibilities of the Justice Department and those of the presidency, Attorney General Griffin Bell recounted the history of that division: “The opinion-giving responsibility of the Attorney General was for ‘questions of law’ only.” He explained that George Washington sought in his first attorney general “a skilled, neutral expounder of the law rather than a political adviser.” While the attorney general’s job has grown significantly since Washington’s day, the line between law and politics continues to demarcate the department’s unique position.  

To be absolutely clear, out of respect for the attorney general’s independence, the president should not tell him what to do or lean on him in any way. But the attorney general’s jurisdiction is also more limited than some, like Goldsmith, have proposed. In cases like Trump’s, where the federal principles clearly counsel for prosecution, if the attorney general determines that the former president’s “conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction,” then he must indict. Any other decision would usurp not only the president’s pardon power but also his authority to decide that the public good is not served by pardoning Trump. 

In a speech one year after the attack on the Capitol, Attorney General Garland said this: “The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law—whether they were present that day or were otherwise criminally responsible for the assault on our democracy. We will follow the facts wherever they lead.” He could not have better articulated his proper role.

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