How to end this American nightmare will be Biden’s dilemma

Facing a Gerald Ford quandary - will Joe Biden call for legal pursuit of Trump after he leaves office or write his own end to this ordeal?

President-Elect, Joe Biden. Ending this long national nightmare is probably going to be down to the Democrats. Picture: AFP

So what happens with Donald Trump now? Not just tomorrow and the next day but in the months and years to come. Let’s begin in 1974. “My fellow Americans, our long national nightmare is over.” With these words Gerald Ford accepted office as president of the United States after the Watergate scandal had forced his predecessor Richard Nixon from office. Yet even before he gave his address Ford’s dilemma had become painfully apparent. Should he end the national nightmare by pardoning Nixon for any crimes he might have committed, or should he allow the law to take its course and the courts to punctuate the end?

As he said when announcing a pardon for Nixon, he thought Watergate an American tragedy. “It 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,” he said.

Ford believed that Americans did not want to see a former president in jail and that it would be disastrous for the country’s image abroad if it was seen to treat former heads of state as criminals. It would lead dictators to cling to power even more tightly.

Like Ford, Joe Biden will want desperately to heal. He will want to move on from endless discussion of Trump. He too will face Ford’s dilemma: should he encourage the legal pursuit of Trump after he leaves office or, either formally or informally, discourage such action?

I don’t believe he can or will resolve Ford’s dilemma in Ford’s way, and not only because it was a political disaster that quite possibly cost him re-election.

To start with, Ford was motivated by compassion for Nixon and his family that Biden will not feel and Trump most certainly does not deserve - neither did Nixon by the way, but that’s another matter. Nor does Biden’s party position allow him easily to resist action against Trump, even if he were inclined to. The same will apply to the Trump supporters who invaded the Capitol.

Supporters of US President Donald Trump invade the US Capitol in Washington, DC. Picture: AFP

So it seems very likely that the end of the Trump years in office will be the beginning of the Trump years in court. Rightly.

There had been speculation that Trump would resign from office 24 hours before inauguration day, allowing his vice-president to take office and pardon him. There are many reasons to believe this would not happen. One is that legal scholars believe it would require some sort of at least implicit admission of guilt for unspecified crimes, an admission it is impossible to imagine Trump giving.

The second is that a president cannot issue pardons in exchange for a consideration. And becoming president is such a consideration. This, too, became apparent in 1974. So Mike Pence wouldn’t be able to make Trump any assurance of a pardon in exchange for resignation. The two men would have to work on trust. If that was ever imaginable, it certainly isn’t now.

Yet before Biden can consider Ford’s dilemma, every actor in American government has a sharper problem to consider. Can they wait that long?

Trump has less than two weeks left in office but can he be allowed to remain even for that period, given that he is now encouraging violent resistance to his departure from the White House?

There are two ways in which he could be removed. The first is through impeachment. This would require a majority of the House of Representatives to charge him with high crimes and misdemeanours and two thirds of the Senate to find him guilty. The problem would not necessarily be finding the numbers who believe that he should be charged and would wish to find him guilty. The problem would be assembling a Senate conviction quickly enough given the proportion of senators likely to insist, for reasons of precedent apart from anything else, upon all the trimmings of a full trial.

So more practical might be using the 25th Amendment of the constitution, introduced in 1965, in which the vice-president and a majority of the cabinet - or “any such body as Congress may by law provide” - can remove a president due to his incapacity.

It would be fast enough to work - Trump would immediately be removed and by the time congressional review was complete his term would have expired. And, in my view, it would be merited.

Wednesday’s events may persuade some Republicans that such boldness is now required. That it is their duty. Yet the size of the Republican vote in the House to review Pennsylvania’s presidential results, a vote taking place after the invasion, cautions wariness about too much optimism. Ending this long national nightmare is probably going to be down to the Democrats. And they will need to be tough.

The Times