A president faces prosecution, and a democracy is tested

The US is heading down a road it has never travelled before, one fraught with profound consequences for the health of the world’s oldest democracy

By Peter Baker

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New York City Police Department (NYPD) officers stand outside the Manhattan Criminal Court after former US president Donald Trump's indictment by a Manhattan grand jury following a probe into hush money paid to porn star Stormy Daniels, in New York City, on Friday. — Reuters
New York City Police Department (NYPD) officers stand outside the Manhattan Criminal Court after former US president Donald Trump's indictment by a Manhattan grand jury following a probe into hush money paid to porn star Stormy Daniels, in New York City, on Friday. — Reuters

Published: Fri 31 Mar 2023, 5:37 PM

Last updated: Fri 31 Mar 2023, 7:22 PM

For the first time in American history, a former president of the United States has been indicted on criminal charges. It is worth pausing to repeat that: An American president has been indicted for a crime for the first time in history.

So many unthinkable firsts have occurred since Donald Trump was elected to the White House in 2016, so many inviolable lines have been crossed, so many unimaginable events have shocked the world, that it is easy to lose sight of just how astonishing this particular moment really is.

For all of the focus on the tawdry details of the case or its novel legal theory or its political impact, the larger story is of a country heading down a road it has never traveled before, one fraught with profound consequences for the health of the world’s oldest democracy. For more than two centuries, presidents have been held on a pedestal, even the ones swathed in scandal, declared immune from prosecution while in office and, effectively, even afterward.

No longer. That taboo has been broken. A new precedent has been set. Will it tear the country apart, as some feared about putting a former president on trial after Watergate? Will it be seen by many at home and abroad as victor’s justice akin to developing nations where former leaders are imprisoned by their successors? Or will it become a moment of reckoning, a sign that even someone who was once the most powerful person on the planet is not above the law?

“Whether the indictment is warranted or not, it crosses a huge line in American politics and American legal history,” said Jack L. Goldsmith, a Harvard Law professor and former top Justice Department official under President George W. Bush.

If that were not enough to shake the timbers of the republic, the first may not be the last. Trump could face a second indictment in Georgia and a third from federal prosecutors and potentially even a fourth.

There is consternation that the barrier-shattering indictment would involve something as unseemly as paying hush money to cover up a sexual romp. Given that the defendant has been involved in far more earth-shattering events like trying to overturn an election and inspiring an attack on the Capitol to prevent the transfer of power, the allegations by Manhattan prosecutors seem less than epochal.

But if the issue is accountability, then the case could redraw the lines and make it less daunting for prosecutors in Georgia and Washington to follow suit by charging more serious crimes if they have the evidence, since they will not have to bear the burden of justifying action never taken before. Leave it to the only president ever impeached in Congress twice to face so many prosecutions that lawyers need a score card just to keep track.

While the indictment of Trump takes the country into uncharted waters, the authors of the Constitution might have been surprised only that it took so long. Justice Department policy maintains that sitting presidents cannot be indicted, but the framers explicitly contemplated the prospect of them being charged after leaving office.

A president impeached by the House and convicted and removed from office by the Senate “shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law,” Article I, Section 3 of the Constitution declares.

“Generally, we consider that language to suggest that, whatever may happen with respect to an impeachment while a president is in office, he still may be held liable civilly or criminally after he leaves office for his misconduct in office,” said Michael J. Gerhardt, a constitutional law professor at the University of North Carolina.

In other words, no former president was immune from criminal liability. “The framers would have been horrified at the possibility of a president ever being above the law while in office or after leaving it,” Gerhardt said.

Indeed, while voting to acquit Trump at his second impeachment trial — the one charging him with inciting the January 6, 2021, attack on the Capitol — Sen. Mitch McConnell, the Republican leader from Kentucky, said he did so because Trump was no longer in office but added that he was still subject to criminal prosecution.

“My view is that so long as the case that is brought is for a crime that is not unusual to charge, and the proof is also as strong as one would normally have — i.e. that one wards against the problem of selective prosecution — then it is imperative that we hold politicians to account regardless of what position they hold or held,” said Andrew Weissmann, a deputy to Robert Mueller, the special counsel who investigated the Trump campaign’s ties to Russia.

Meena Bose, who is the executive dean of Hofstra University’s Peter S. Kalikow School of Government and runs a presidential history project, said that a country plagued by polarization and concerns about democracy would be stronger by enforcing responsibility on its leaders. “An active and continuing commitment to making sure all public officials follow the rule of law is essential to addressing those challenges,” she said.

But others worry about the long-term consequences for the presidency, not least because this indictment is being brought by a local prosecutor rather than the Justice Department, opening the door to prosecutors around the country taking it upon themselves to go after a president.

In 2008, voters in two small towns in liberal Vermont approved resolutions accusing Bush and Vice President Dick Cheney of “crimes against the Constitution” and instructing their town attorneys to draft indictments. Nothing ever came of it, but it is not hard to imagine a conservative local prosecutor trying to charge President Joe Biden with, say, failing to adequately guard the border.

Goldsmith said any prosecution could tear at the fabric of the system. “Especially if this indictment is followed by even a justified indictment from the special counsel, we will see recriminations and retributions in the medium term, all to the detriment of our political national health,” he said.

Trump’s allies branded the Manhattan case political even before any indictment without waiting to review the actual evidence. Whatever Alvin L. Bragg, the district attorney, turned up was immaterial — to defend their party’s most recent president, and possible next nominee, they preemptively declared the prosecution illegitimate because it was brought by a Democrat.

Rep. Mark E. Green, R-Tenn., chair of the House Homeland Security Committee, compared any prosecution of Trump to political cases in less developed countries. “Daniel Ortega arrested his opposition in Nicaragua and we call that a horrible thing,” he said last week. “Mr. Biden, Mr. President, think about that.”

Locking up former leaders on specious, politically driven charges may be common in the world’s autocracies, but some of the most advanced democracies have not shied away from putting their leaders on trial for crimes. In Israel, former Prime Minister Ehud Olmert spent more than a year in prison for bribery, fraud and other charges while the incumbent prime minister, Benjamin Netanyahu, is currently on trial on similar charges.

In Italy, former Prime Minister Silvio Berlusconi, who just regained some power as part of a governing coalition, has faced 35 criminal court cases during his long career, although he was definitively convicted just once for tax fraud and sentenced to a year of community service. Just last month, he was acquitted on charges of bribing witnesses at a previous underage-prostitution trial.

Other leaders of democratic nations convicted in recent years include former Presidents Jacques Chirac (embezzlement) and Nicolas Sarkozy (influence peddling) in France, former President Park Geun-hye (corruption) in South Korea and former President Chen Shui-bian (bribery) in Taiwan.

In the US, Teapot Dome, Watergate, Iran-Contra and Whitewater never put a president in the dock. The only sitting president to see the inside of a police station as a defendant was Ulysses S. Grant, who was stopped for speeding down the streets of Washington in his horse-drawn carriage. He paid $20 and went on his way.

While no president has ever been indicted before, an early vice president, Aaron Burr, was put on trial for treason after leaving office for plotting to carve off Western territories into a new country, although he was acquitted. Nearly two centuries later, another vice president, Spiro T. Agnew, resigned amid a plea deal in a corruption case.

Trump would not be barred from running for his old office by an indictment or even a conviction. In 1920, Eugene V. Debs, the Socialist leader, mounted his fifth bid for the White House from prison, where he was serving time for his opposition to World War I. He received 919,799 votes, or 3.4 per cent of those cast. Of course, unlike Trump, he was not a major-party candidate and had no prospects of winning.

At least a couple other presidents worried about being indicted after office. Richard Nixon was pardoned by his successor, Gerald Ford, a month after resigning, sparing him any prosecution in the Watergate scandal. Bill Clinton struck a deal with Whitewater prosecutors on his last full day in office in which he admitted providing false testimony under oath about his affair with Monica Lewinsky, gave up his law licence for five years and paid a $25,000 fine in exchange for not facing charges as a private citizen.

In pardoning Nixon, Ford was not trying to set a precedent barring future prosecutions of a president, said historian Richard Norton Smith, whose biography of Ford, “An Ordinary Man,” will be published next month. Instead, he was trying to move the country beyond Watergate as he confronted challenges such as inflation, the last vestiges of the Vietnam War and deep public cynicism.

“He wasn’t forgiving Nixon so much as he was trying to forget him,” Smith said. “That is, to counter the popular, political and media obsession that, quite understandably, had formed around the previously unthinkable concept of an American president facing jail time. And the existence of which prevented him from doing his job or the American people from moving on to confront all the problems that Nixon left behind him.”

This article originally appeared in The New York Times

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