The Washington PostDemocracy Dies in Darkness

Trump indictment marks a first for U.S. democracy. It may not be the last.

No ex-president had been indicted before Thursday, prompting debate over whether the case will ultimately strengthen or weaken the rule of law.

Former president Donald Trump speaks at the Conservative Political Action Conference in Maryland on March 4. The expected prosecution of Trump shatters an unwritten American political norm. (Jabin Botsford/The Washington Post)
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President Warren G. Harding was in danger of facing criminal charges in 1921 in the Teapot Dome bribery scandal, but he died in office first. Richard M. Nixon faced almost certain indictment after the Watergate scandal forced his resignation in 1974, but his successor and former vice president, Gerald Ford, pardoned him.

Those cases were as close as any current or former president had ever come to criminal charges in the 234 years since George Washington took office, until Donald Trump’s indictment on Thursday by a Manhattan grand jury.

The expected prosecution of Trump shatters an unwritten American political norm and brings the United States more in line with dozens of other nations, including democracies such as South Korea, Brazil, France, Italy and Israel, that have criminally charged, convicted and in many cases jailed former leaders.

It also left U.S. historians and legal scholars puzzling over what the new legal landscape will look like for future presidents. Several said it was a moment that could open a new era of legal peril for former presidents, including the possibility of tit-for-tat, politically motivated prosecutions.

“Anyone who is worried that this will be the beginning of a pattern of indicting past presidents is right to be worried,” said Jill Lepore, a Harvard University historian and author.

“The problem is not doing it but making it a habit,” she said. “If it happens once, the rule of law has held. If it happens after every presidency, the rule of law is lost.”

Trump and his backers allege that the charges — which have not been unsealed, but which are expected to involve possible violations of campaign finance laws when Trump paid $130,000 in hush money to an adult film actress with whom he had an affair — have already taken the country down that path.

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Donald Trump is facing historic legal scrutiny for a former president, under investigation by the Justice Department, district attorneys in Manhattan and Fulton County, Ga., and a state attorney general. He denies wrongdoing. Here is a list of the key investigations and where they stand.
Justice Department criminal probe of Jan. 6
The Justice Department is investigating the Jan. 6 riot and whether Trump or his aides may have conspired to obstruct the formal certification in Congress of the election result or committed fraud to block the peaceful transfer of power. Attorney General Merrick Garland appointed veteran prosecutor Jack Smith to oversee both this and the Mar-a-Lago investigation.
Mar-a-Lago documents investigation
FBI agents found more than 100 classified documents during a search of Trump’s residence at his Mar-a-Lago Club in Palm Beach, Fla., on Aug. 8 as part of a criminal probe into possible mishandling of classified information. A grand jury is hearing witness testimony as prosecutors weigh their next steps.
Georgia election results investigation
Fulton County District Attorney Fani T. Willis (D) is investigating whether Trump and his allies illegally meddled in the 2020 election in Georgia. A Georgia judge on Feb. 15 released parts of a report produced by a special-purpose grand jury, and authorities who are privy to the report will decide whether to ask a new grand jury to vote on criminal charges.
Manhattan district attorney’s investigation
District Attorney Alvin Bragg (D) convened a grand jury to evaluate business-related matters involving Trump, including his alleged role in hush-money payments to the adult-film actress Stormy Daniels during the 2016 presidential campaign. On March 30, the grand jury voted to indict Trump, making him the first ex-president to be charged with a crime. Here’s what happens next.
Lawsuit over Trump business practices in New York
Attorney General Letitia James (D) filed a lawsuit Sept. 21 against Trump, three of his children and the Trump Organization, accusing them of flagrantly manipulating the valuations of their properties to get better terms on loans and insurance policies, and to get tax breaks. The litigation is pending.


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Trump, who denies all charges, has insisted on his social media platform, Truth Social, that he is the victim of “horrible radical left Democrat” investigations. Before the announcement of the action against Trump, Sen. Eric Schmitt (R-Mo.) tweeted that Trump’s potential indictment is “some Third World Banana Republic lunacy and a very, very dangerous road to go down.” After the indictment news broke Thursday, Trump wrote in a post: “THE USA IS NOW A THIRD WORLD NATION.”

But many scholars of the Constitution and the executive branch say the charges demonstrate the strength of U.S. democracy, proving that not even a former president is above the law.

“It’s the failure to indict Mr. Trump simply because he was once the president that would say we were well on the way to becoming a banana republic,” said Laurence Tribe, a Harvard University legal scholar who taught Barack Obama and advised his presidential campaign and administration. “Those who fear that indicting a former president would say that U.S. democracy is in trouble have it exactly backwards and upside-down.”

Michael Beschloss, a presidential historian and author, said the long U.S. tradition of not indicting former presidents is partly because “in general, presidents did not misbehave, in a criminal sense, to a degree that would have made that seem urgent.”

“Part of it has also been an unfortunate view that ex-presidents deserve some kind of monarchical immunity that normal citizens do not,” he said. “How do you explain to someone who steals toothpaste from a drugstore that they are more subject to American law than a president is?”

The porn star, the checks and the president: Trump’s tawdry path to peril

Trump’s New York indictment may not be his last. He and his allies are under investigation by the district attorney in Fulton County, Ga., for efforts to overturn the 2020 presidential election. A Justice Department special counsel, Jack Smith, is also investigating those efforts, as well as the possible mishandling of classified information.

The precedent-setting indictment in Manhattan is likely of more concern for former presidents than it is for those seeking the job or currently doing it.

Although there is no law against prosecuting political candidates, the Justice Department has a policy of being extremely cautious about seeming partisan or influencing the outcome of elections. The Justice Department also follows a policy dating to 1973 against prosecuting sitting presidents.

Harding and Nixon are the two presidents who may have come closest to being prosecuted, with Nixon’s greatest legal peril coming after he left office. (One president, Ulysses S. Grant, was arrested in 1872 for speeding in downtown Washington in his horse-drawn carriage, but reportedly never showed up for his court appearance on the misdemeanor infraction.)

Jon Grinspan, a curator of political history at the National Museum of American History, said Andrew Johnson, in office from 1865 to 1869, was also accused of breaking the law, though not by a prosecutor. Johnson was impeached by the House of Representatives for violating a law requiring him to obtain Senate consent to replace his secretary of war. But he was acquitted at his Senate trial.

“The failure of his impeachment in 1868 meant that it just went away,” Grinspan said. “Sometimes impeachment scratches the itch, and they don't move on from there.”

Ford’s pardon of Nixon a month after his resignation headed off the possibility of an indicted ex-president in handcuffs for the first time.

In his pardon, Ford said: “The tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States.”

Ford said prosecuting Nixon would have caused “prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.”

Beschloss said Trump spent time with Nixon after he left office, writing to him that he had been a “great” President and urging him to move to Trump Tower in New York.

“In retrospect, I now believe that Ford never should have pardoned Nixon, at least so immediately,” Beschloss said. “It gave later presidents, especially Trump, the idea that they were somehow above the law.”

Claire Jerry, also a curator at the National Museum of American History, said that in the nearly half-century since Nixon’s resignation, public opinion toward the presidency has been changing. The notion of the presidency as an institution “above reproach regardless of who’s in the office” has been increasingly challenged.

She said the rise of social media and 24/7 news has given people access to immediate information that was not available in the past. “The issues are not new, but our ability to know about the issues is certainly different now,” she said.

The status of key investigations involving Donald Trump

Several historians noted that impeachments were once almost as rare as criminal indictments. But, Lepore said, members of the House of Representatives have introduced resolutions calling for the impeachment of every president since Ronald Reagan was inaugurated in 1981.

Bill Clinton was impeached but not convicted. Trump was impeached by the House twice and acquitted by the Senate both times. Republicans have introduced multiple resolutions to impeach President Biden, though they have not gone anywhere.

“Before (1981), you didn’t just holler, ‘Impeach him!’ when you didn’t like the president,” Lepore said.

Grinspan said he did not believe the indictment against Trump was political. But he saw parallels between ending the country’s record of not prosecuting ex-presidents and the rise of impeachments.

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In addition to his involvement in more than 4,000 lawsuits over the course of his half-century in real estate, entertainment and politics, Donald Trump has been the subject of investigations by federal, state and regulatory authorities in every decade of his long career.
Federal investigators accuse Trump and his father of discriminating against Black New Yorkers in renting out apartments. Case settles with no admission of guilt, but Trump has to run ads pledging not to discriminate.
Federal investigators look into whether Trump gave apartments in his Trump Tower to organized crime-connected figures to keep his project on track. Trump denies the allegation. Separately, New Jersey officials probe Trump’s ties with mob figures, then grant him a casino license.
New Jersey regulators investigate Trump’s finances and conclude he “cannot be considered financially stable,” yet extend his casino license to protect jobs at his Atlantic City hotel.
Federal securities regulators cite Trump’s casino for downplaying negative results in financial reporting.
New York state sues Trump, alleging his Trump University defrauded more than 5,000 people. Trump is found personally liable. After Trump becomes president, he is impeached — and acquitted — over allegations that he solicited foreign interference in the U.S. presidential election.
Trump is impeached — and acquitted — a second time for incitement of the Jan. 6, 2021, attack on the U.S. Capitol. New York state sues Trump, alleging he falsely inflated assets to mislead lenders. He is also under criminal investigation for events surrounding Jan. 6 and his handling of classified documents.


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“Any weapon that’s brought into politics on one side shows up on the other pretty quickly, so I would not be surprised if we see further indictments of presidents and political figures down the line,” he said.

Even some critics of Trump have questioned whether the Manhattan district attorney’s office should have sought an indictment against Trump over his hush money payments to Stormy Daniels.

Some critics have said those charges are trivial and flimsy compared to others in separate investigations into Trump’s finances and his attempts to overturn the 2020 election. They argue that prosecuting Trump for the Daniels payments risks making the judicial system appear politicized and damaging public confidence in U.S. rule of law.

Edward Luce, Washington-based columnist for the Financial Times, wrote a recent piece under the headline, “It’s unwise to get Trump on a technicality.”

“The prospect that Manhattan’s district attorney could briefly handcuff Trump … has so excited his detractors that it seems to have triggered a collective loss of judgment,” he wrote, adding that charging Trump with “fiddling with business expenses” would help him and undermine the justice system.

“It would reinforce the MAGA conspiracy theory that ideological prosecutors working for the deep state are determined to derail Trump’s 2024 campaign,” Luce wrote.

Critics have also said an indictment could lead to the kind of violence Trump’s supporters engaged in during the Jan. 6, 2021, attack on the U.S. Capitol. Trump has called for protests and criticized those who have insisted they be peaceful.

Wilfred M. McClay, a historian at Hillsdale College, a conservative Christian school in Michigan, answered questions about a potential Trump indictment by quoting Abraham Lincoln, who “contended that if the American nation were ever to be destroyed, it would be destroyed by suicide, by internal disintegration, and not by an external foe.”

“All of us will have much to answer for,” McClay said in an email, “if we choose to fight to the death over matters of relatively little import, while the nation’s vast and looming problems, including our very capacity to deal effectively with our external foes, go largely unaddressed.”

Others said Trump is accused of serious crimes that warrant prosecution, and that the rule of law only survives when it is applied equally to everyone.

“I would rather live in a country where presidents and ex-presidents are held strictly to account than a country in which they are allowed to cut dangerous corners out of anxiety that justice might seem too ‘politicized,’” Beschloss said.

More on the Trump NY indictment

The latest: Former president Donald Trump’s criminal trial in New York is scheduled for March 2024. Trump pleaded not guilty to 34 counts stemming from 2016 hush-money payments, the first criminal charges for any former U.S. president.

What is the case about? The investigation involves a $130,000 payment made to Stormy Daniels, an adult-film actress, during the 2016 presidential campaign. It’s one of many ongoing investigations involving Trump. Here are some of the key people in the case and how the indictment process will work.

What are the charges? Trump is charged with 34 felony counts of falsifying business records. Falsifying business records is a felony in New York when there is an “intent to defraud” that includes an intent to “commit another crime or to aid or conceal” another crime. Here’s the full text of the Trump indictment.

Can Trump still run for president? While it has never been attempted by a candidate from a major party before, Trump is allowed to run for president while under indictment — or even if he is convicted of a crime. Here’s how Trump’s indictment could impact the 2024 election.