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If Donald Trump were convicted, Joe Biden would have to consider a pardon

By Harlan Ullman, Arnaud de Borchgrave Distinguished Columnist
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If Donald Trump were convicted, Joe Biden would have to consider a pardon
A video of former President Donald Trump is shown as the House select committee investigating the Jan. 6 attack on the U.S. Capitol holds a public hearing to discuss its findings of a year-long investigation, on Capitol Hill in Washington, DC on Tuesday, June 21, 2022. Photo by Tasos Katopodis/UPI | License Photo

June 22 (UPI) -- President Gerald Ford's pardon of Richard Nixon after the Watergate fiasco no doubt helped Jimmy Carter win the 1976 election. But Ford was right then and right now. A former president in the docket would have been devastating to the nation.

Today, that possibility would be catastrophic. But make no mistake: Donald Trump could face prosecution over Jan. 6. The charge could be far more serious than inciting a riot, which would be very difficult to prove in a court.

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Trump's legal problem stems not from Democratic allegations but from his and former Vice President Mike Pence's lawyers; two judges; former Attorney General Bill Barr; and other witnesses who will testify in the remaining House select committee's televised hearings. And Trump's possible legal problems are not his alone. President Joe Biden could be swept in them as Gerald Ford was 48 years ago as to whether to prosecute or to pardon a former president.

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How serious are the possible charges against the former president? U.S. District Judge David Carter, in a case involving former Trump attorney John Eastman, concluded Trump "more likely than not corruptly attempted to obstruct Congress." Retired Republican-appointed Court of Appeals Judge Michael Luttig declared in testimony that Trump was "a clear and present danger to democracy."

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Trump deputy White House counsel Eric Herschmann strongly recommended to Eastman that he hire the "best criminal attorney" he can find. Barr testified he repeatedly warned Trump that believing the election was stolen was "nonsense." And the evidence so far, if proven correct, could make the case that Trump not only attempted to subvert government. By his actions, he meant to overthrow it.

This bombshell has been obscured by focus on Trump's role to incite the riot. Rioters testified how he "summoned them" to Washington to reverse the stolen election, by force if necessary. No doubt, Trump's actions certainly facilitated, if not provoked, the large crowds to assemble on the National Mall and march on the Capitol that fateful day. But can guilt be established beyond a reasonable doubt in a court of law? Probably not.

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As former prosecutor and New Jersey Gov. Chris Christie observed, if a case is to be made against a president, it cannot be a "swing and a miss." It must have a 99.999% or higher probability of obtaining a guilty verdict. And any Department of Justice is well aware of that standard.

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The most chilling possibility is a question. Given that Trump attempted a coup and had a plan to overturn the election and, in essence, overthrow the government illegally, does that amount to sedition? 18 U.S.C 2384 defines the crime of sedition as conspiring to "overthrow the government of the United States..." or opposing by force the "authority of the United States government...the execution of any law....."

The evidence is very strong. But the ramifications are staggering. The divisions in the nation are such that a large faction of Americans would fiercely protest a trial of a former president over an election they thought was won. Other forms of Jan. 6 levels of violence almost certainly would break out, probably country wide. A national state of emergency could be declared with horrendous consequences.

Hence, Biden could face impossible decisions, making Ford's pardon of Nixon seem trivial. First, how would Biden deal with the Justice Department if it embarked on a criminal investigation of Trump's conduct surrounding the events of Jan. 6? Second, how would Biden deal with an indictment were one forthcoming? And last, if a trial were to be held, would the White House be capable of preventing the proceedings from disintegrating into a national nightmare?

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All this is speculative. However, as the leak of a Supreme Court draft memo on Roe vs. Wade has set the stage for a potential political explosion, trying a former president would elevate such a spectacle to thermonuclear proportions. What can be done?

Few people have realized how potentially dangerous the findings of this select committee could prove. Would Biden preempt them by offering Trump a pardon or the equivalent of a "plea bargain" by not prosecuting should the former president agree never to run for office? And could that be binding?

Is a nation wracked with COVID-19; massive inflation and soaring gas prices; a war in Ukraine that could escalate; and other ticking time bombs capable of withstanding perhaps the greatest political crisis since the Civil War? For certain, no one knows.

Harlan Ullman is senior adviser at Washington's Atlantic Council, the prime author of "shock and awe" and author of "The Fifth Horseman and the New MAD: How Massive Attacks of Disruption Became the Looming Existential Danger to a Divided Nation and the World at Large." Follow him @harlankullman.

The views and opinions expressed in this commentary are solely those of the author.

House committee holds fourth public hearing on Jan. 6 Capitol attack

Georgia election worker Wandrea ArShaye Moss wipes her eyes as she testifies during a public hearing on the January 6, 2021 attack on the U.S. Capitol. The hearing on June 21 explored the pressure former President Donald Trump put on state election officials and workers to overturn the 2020 election results. Photo by Tasos Katopodis/UPI | License Photo

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