The Washington PostDemocracy Dies in Darkness

The precedented investigation of an ex-president’s actions

President Bill Clinton appears at the 1996 Democratic National Convention. (Frank Johnston/The Washington Post)
6 min

“Has anyone paused to think about the implications of investigating a former president?” asked a top aide to a former Republican president. “Hauling aides before Congress for a political show is one thing, but hauling them before a grand jury is another story.”

The aide added: “It strikes me that we are witnessing the creation of a very dangerous precedent.”

The quote above sounds as though it came since we learned last week that the FBI had searched former president Donald Trump’s residence at Mar-a-Lago — a situation Republicans have roundly condemned as unprecedented, and as representing the political weaponization of the Justice Department (despite not knowing precisely what led to the search).

But while this search of an ex-president itself appears to be without precedent, the legal scrutiny and even a criminal investigation involving a former president’s actions are not. The quote is actually from a March 2001 column by former Nixon White House aide John Dean, who was concerned about a budding federal investigation into Bill Clinton’s pardon of fugitive financier Marc Rich.

Today, the federal probe of Rich’s pardon and others issued by Clinton is more a historical footnote than anything else, as it never resulted in criminal charges. But as we confront another investigation of a former president’s actions while leaving office, it’s worth emphasizing that our leaders have been probed by the Justice Department before. And as with the current investigation, that probe occurred under a Justice Department run by the opposite political party.

Less than a month after Clinton left office in January 2001, the U.S. attorney for the Southern District of New York, Mary Jo White, confirmed something that had been suspected: that her office would investigate whether Rich and those around him effectively purchased his pardon through donations to Democratic organizations and the Clintons themselves (including $450,000 for the Clinton presidential library fund). The Washington Post reported at the time that George W. Bush’s new attorney general, John D. Ashcroft, had reviewed the decision to open the probe.

The news of the probe drew sharp and concerted rebuttals from Clinton himself, who denied any wrongdoing or improper connection between the donations and his decision.

The night of the announcement, Clinton told Geraldo Rivera he had been “blindsided” by it and blamed it on Republicans (even though Democrats also criticized the pardon). He added: “There’s not a single, solitary shred of evidence that I did anything wrong, or that Marc Rich’s money changed hands. There’s certainly no evidence that I took any of it.”

Three days later, Clinton published a New York Times op-ed proclaiming his innocence.

“The suggestion that I granted the pardons because Mr. Rich’s former wife, Denise, made political contributions and contributed to the Clinton library foundation is utterly false,” Clinton wrote. “There was absolutely no quid pro quo.”

In the following weeks came revelations of subpoenas of Clinton library fundraising documents and government documents related to the pardon. Ashcroft later expanded White’s mandate to include all of more than 170 pardons Clinton issued on his final day. Clinton’s half brother, Roger Clinton, was subpoenaed for his work on several pardon requests. Rich’s ex-wife was reportedly given immunity. Clinton would soon express regret over the Rich pardon, maintaining his innocence but acknowledging it was “terrible politics” and complaining that he gave his enemies fodder to have him “mugged one more time on the way out the door.”

The news soon faded, particularly after the 9/11 terrorist attacks. But documents released in 2016 and early 2017 detailed the extent of the probe. They showed it included two grand juries, “hundreds of interviews” and “numerous witnesses.” They also showed that White’s successor who took over the probe in late 2001, eventual FBI Director James B. Comey, was “enthusiastic” about the investigation. (Comey had prosecuted the case against Rich in the late 1980s and early 1990s.)

Despite that apparent enthusiasm and four years of investigation, the probe resulted in no criminal charges when it was closed in 2005.

The comparisons between Trump’s lot and other presidents and presidential candidates are flying thick and fast right now — particularly with regard to Hillary Clinton’s emails and a specious parallel Trump and his allies have tried to draw between his handling of government documents and Barack Obama’s. And as with almost every comparison, this is not apples to apples; plenty of factors make the Rich investigation unlike what we’re seeing today. Leading that list is that Clinton was never served with a search warrant, and it’s not clear precisely how aggressively White and her successors probed his actions, specifically (though Clinton was obviously quite concerned at the outset).

But there are also plenty of potentially valid reasons that the probe of Trump’s actions might have gone further than the one into Clinton, including most notably that Trump or someone in his circle removed sensitive government documents and that he apparently declined to return all of them when the government kept inquiring about the matter. (It stands to reason that if Clinton withheld key documents in the Rich probe, the government might have been quite interested in retrieving them.)

The potential crimes cited by the government for the Trump search, as laid out in the search warrant released Friday, also suggest that the actions at issue may have gone beyond mere possession of the documents.

As Dean himself said over the weekend: “There’s a reason Trump provoked this. He’s the one who didn’t cooperate. He’s the one who forced [Attorney General] Merrick Garland’s hand. We don’t know what it is he has or had.”

In other words, despite the rush to judgment about an abuse of power — and with the knowledge, as Dean once argued, that investigating former presidents is a fraught exercise that will force the Justice Department to account for its actions — it’s probably worth finding out precisely why this investigation of a former president’s actions has progressed along these lines. But it’s not unheard of for the Justice Department to scrutinize a former president’s actions.