A president faces prosecution, and a democracy is tested

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.

This article originally appeared in The New York Times