By Andrew Mitrovica
Picture the scene: Donald Trump stands in a courtroom sporting an orange jumpsuit. Handcuffed, his carefully coiffed mane is slightly dishevelled. He is uncharacteristically subdued after taking a shellacking on election day – November 3, 2020. His perpetual, painted-on bronze tan has been erased to reveal a chalk-white complexion. Looking old and forlorn, head bowed, Trump finally, belatedly, faces a judge and the long-overdue judgment he has so fittingly earned.
That, as Humphrey Bogart – cribbing from Shakespeare – famously said, is “the stuff that dreams are made of”. More particularly, it is the stuff of dreams that Democratic House Speaker Nancy Pelosi may be having lately, since she reportedly prefers to see Trump in prison rather than impeached – even after the US president admitted in the Oval Office that he would happily collude with foreign spies bearing “dirt” on Joe Biden and company.
It is a dream shared by countless other so-called progressives who, like Pelosi, envision the glorious day when Trump will be forced to forgo the opulent trappings of his Palm Beach resort, Mar-a-Lago, for a long, sobering stint circling the yard in a federal penitentiary.
Indeed, would-be Democratic presidential nominee and former California attorney general, Senator Kamala Harris, recently insisted that, if elected, that oh so satisfying dream would turn quickly real, since, under her command, the Department of Justice would be obliged to indict Trump for obstruction of justice, among other possible felonies.
“Everyone should be held accountable, and the president is not above the law,” Harris said, aware, perhaps, that her send-Trump-to-jail gambit was calibrated to give her faltering campaign a propitious jolt of attention.
But Harris, Pelosi et al know, no doubt, how the historical scorecard to date reads – Number of US presidents: 45; Number of US presidents prosecuted: 0.
So, despite all the huffing and puffing about “accountability” and, surely by now, stale “the president is not above the law” rhetoric, the odds that Trump will ever don prison garb and be shipped off to Rikers Correctional Center after being evicted from the White House are about as remote as Dick Cheney checking into The Hague for a lengthy, involuntary stay.
Still, I suspect Harris’ and Pelosi’s posturing about sending Trump to the dock is intended to mollify Americans who believe that in lieu of (or coupled with) impeachment, Trump should be charged and jailed.
Sure, a conga-line of Trump’s apparatchiks, including his former campaign manager and consigliere, has been trotted off to prison, while their ex-boss evades a similar, humiliating fate.
However justified, the sketch I paint at the top of this column would likely be considered by many Americans as an intolerable indignity visited upon the majestic “office of the presidency”. As such, it would be challenging to prosecute Trump in the hyper-polarised political and cultural climate that stubbornly defines America.
In this context, Trump’s legion of supporters would view his prosecution as constitutionally blasphemous persecution, rather than an impartial attempt to uphold the rule of law and, in so doing, confirm that no president presides above it.
Trump and his equally inchoate media allies on radio, print and, of course, Fox News, are genetically primed to wail that any effort, by anyone, at any time, to charge him with any crime would constitute not only a politically motivated vendetta but the “deep state’s” final, vengeful coup de grace – with predictable emphasis on the word “coup”.
Angry, aggrieved and spurred on, it’s plausible that Trump could go on an unrestrained pardon-spree as his presidency ends, culminating in a screeching, legally dubious dodge that he enjoys the prerogative to pardon himself.
Despite all their prison bluster, if one of the growing litter of Democrats now vying to become the party’s presidential nominee did prevail over Trump late next year, it’s hard to imagine the new president indicting the old, batty president and risking further fracture of an already splintered nation.
For his part, Biden, the current frontrunner to challenge Trump, believes his friends across the aisle are redeemable once their Trump-induced fever breaks. If he wins, pursuing a Republican president in court might scuttle Biden’s fanciful designs to bring Republicans and Democrats “together”.
In any event, former US President Gerald Ford essentially established the precedent on this kumbaya-like score when he granted a disgraced Richard Nixon a “full, free and absolute” pardon for any crimes he committed while in office on September 8, 1974.
Watergate revealed that Nixon, with the connivance of his most senior advisers and assistance of several powerful tentacles of the national security apparatus, had, for years, run what amounted to a criminal enterprise out of the White House that, in toto, subverted his sworn oath to “preserve, protect and defend the Constitution of the United States”.
Though his decision was widely condemned by Americans who yearned to see Nixon indicted, Ford reasoned that America’s “tragedy, in which we all have played a part… could go on and on and on, or someone must write the end to it. I have concluded that only I can do that and, if I can, I must.”
Ford was praised in some sentimental quarters for placing country over ambition. His popularity plunged after pardoning Nixon and he subsequently lost to Jimmy Carter in 1976.
Arguably, Ford’s pardon was less an act of national-psyche-repairing altruism and more a calculated act of self-preservation by the presidential embodiment of the powers-that-be.
Beyond the impulse to “heal” a divided people and end a “long, national nightmare,” Ford – and every other president after him – probably accepted that, given the nature and legally prickly exigencies of the job, it might be best to avoid putting your predecessor in jail since there, by the grace of the Justice Department, go I.
If Trump loses – and that intoxicating prospect remains uncertain – I expect he will briefly return to his signature New York tower and then retire to a life of golfing and the unthinking cocoon of reality TV, free from the fear that citizen Trump will become inmate Trump.
Andrew Mitrovica is an International Affairs Analyst.