The former president who dispatched with so many of the norms and unwritten rules of the presidency could soon be on the other side of some norm-busting: It looks increasingly possible that he’ll become the first former president to be charged with a crime.
It’s the latest and biggest in a growing number of signs that the former president’s legal jeopardy is very real. Just last week, New York Attorney General Letitia James (D) announced that her investigation of the Trump Organization was now criminal in nature, not just a civil matter. James signaled that her team is working with Vance’s. Trump is also the subject of a criminal investigation in Fulton County, Ga., of his meddling in the vote-tabulation process in that state, and multiple federal cases have implicated him in potential wrongdoing, too.
Were Trump to face charges stemming from any of these inquiries, it would be a first in American history. But that’s not because all of his predecessors were necessarily innocent; it’s because there is very real and legitimate tension between holding powerful people accountable — even the (formerly) most powerful person in the world — and the idea that a functioning democracy doesn’t involve legal retribution against one’s political foes once they’re out of power. New administrations will also often prefer not to relive the controversies of the past in the name of moving forward with their own agenda.
The reasons former presidents haven’t been charged are varied.
Richard M. Nixon was deeply implicated in the Watergate scandal, but Gerald Ford pardoned him to turn the page.
Bill Clinton lied to investigators in the Monica S. Lewinsky scandal. The Senate acquitted him in his impeachment trial, but a special prosecutor was looking at charging him after he left office in 2001. On his final full day, Clinton cut a deal to avoid that, agreeing to pay $25,000 and losing his law license for five years. Again, the reason: moving forward. “I think it’s a collateral benefit to the country that the new president be given a fresh start if that can be achieved,” the special prosecutor, Robert W. Ray, said at the time. “The best interests of the country would be achieved by letting the past be the past.”
The independent counsel in the Iran-contra investigation also considered criminal charges for Ronald Reagan and George H.W. Bush, although a report released later concluded that neither warranted them.
Although no former president has faced charges, that’s not the case for vice presidents. Aaron Burr was charged with treason for plotting to annex parts of Louisiana. He was later acquitted. He was also indicted while serving as vice president for murder in New York and New Jersey, related to his duel with Alexander Hamilton, but he never stood trial.
Nixon’s first vice president, Spiro Agnew, also faced prosecution and resigned in 1973 while pleading guilty to tax evasion.
Charging a former president, of course, is different. They are the ones who are truly in charge, making potential prosecutions look more political and potentially weaponized. There would inherently be accusations of politicization if federal charges were brought by the Biden administration’s Justice Department, but the fact that the two elected officials looking at charges in New York — Vance and James — are Democrats is already being used by Trump to claim that this is the latest “witch hunt.”
At the same time, there is no question that Trump has thumbed his nose at the rules of politics and at legal constraints more than any other recent president.
Special counsel Robert S. Mueller III detailed five instances in which Trump’s actions may well have satisfied the conditions of obstruction of justice in the Russia investigation, while saying he couldn’t accuse Trump of crimes because of long-standing Justice Department policy against charging a sitting president.
Trump’s own Justice Department also implicated him in a proven crime involving hush money paid late in the 2016 campaign to women who said they had affairs with Trump.
Trump’s tax schemes from before his presidency have also come under a microscope, with the New York Times saying they included “instances of outright fraud.” Such schemes appear in many or most cases to have taken place outside the statute of limitations, but Trump’s taxes continue to be a focus of prosecutors.
Even early Wednesday, shortly after news broke of the New York grand jury, ESPN reported that the son of former senator Arlen Specter (R-Pa.) implicated Trump in an alleged bribe offer, before he became president, to get Specter to drop Congress’s investigation of the National Football League’s New England Patriots. Trump denied the charge to ESPN, with his spokesman calling it “completely false.”
Trump has also forfeited the moral high ground when it comes to the idea of prosecuting political opponents. He egged on supporters in 2016 when they chanted that his then-opponent, Hillary Clinton, should be in prison. He also said at a 2016 debate that, if he became president, that’s where she would land. You can’t do that and then claim, as a former president, that you’re off-limits or that you’re shocked that political opponents might one day prosecute you.
The tension that has long loomed over such questions still applies, though — even if you accept that his conduct often ventured into extremely dicey legal territory. If the federal government declines to charge him, but Democratic elected officials in a deep-blue state do, how does that look? Vance is leaving political office, which diminishes claims that this may be a politically expedient effort, but James is an ambitious rising star in the Democratic ranks. She has every reason to look like she’s, at best, holding accountable the former Republican president, who is Public Enemy No. 1 to many. At worst, she may look as though she’s doing it to further her political career — a claim against which her past commentary isn’t exactly helpful.
And Trump is only so happy to play up this argument in the name of defending himself and rallying his base. It has also been an effective one, at least when it comes to warding off conviction in his impeachment trials.
On an extremely raw political level, advocates for charging Trump also must consider this: What exactly might come from it? Trump has built an entire political brand on the idea of victimization. Even in the 2020 election, after everything that happened over the previous four-plus years, including an impeachment and the Russia investigations, he came closer than most people realize to winning reelection. He also has the devotion of a very large swath of the country.
If there’s one place in which a jury might ultimately convict him, New York City would be a prime candidate, but he has skated past legal trouble many times before. And although you may be able to indict a ham sandwich, making the case against and convicting that ham sandwich is another matter entirely.
That’s not, of course, an argument against doing what is legally actionable and holding people accountable no matter who they are. Trump seemed to constantly regard the presidency as license to do whatever he wanted — so much so that he said exactly that, on multiple occasions.
The momentary pain of a politically divisive prosecution must also be measured against what a former president getting a free ride might mean for how future presidents conduct themselves in office. What barriers remain when the Justice Department finds significant evidence of obstruction by a president — in a case involving himself — and implicates the president in a separate case, but never presses the case criminally? Even once the known DOJ policy against indicting incumbent presidents no longer applies?
The calculus in the past has weighed heavily toward letting things be and moving on. Trump, though, insists upon being a political player much more than previous presidents. And he pushed the bounds significantly more than his predecessors, on multiple fronts.
For approximately the 1 millionth time, he’s pushing those around him into making a fraught choice about what to do about it.