Should We Leave the Indictment of Ex-Presidents Alone?

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Donald Trump announced a new run for the presidency on Tuesday, Nov. 15, 2022. This comes at a time when several investigations seem to be closing in on him. The Justice Department is investigating his appropriation of government documents, some of them highly classified, that belong to the National Archives. For this he may be indicted. The state of Georgia has been investigating Trump’s attempts to pressure Georgia election officials into “finding” enough votes to overturn the 2020 election results there. For this he may be indicted. New York state has been investigating his and his company’s business practices. The congressional Jan. 6 committee issued a subpoena requiring Mr. Trump to appear for questioning and to submit documents for its review. The deadline passed and he failed to comply with the congressional subpoena. Congress may recommend that the Justice Department indict the former president for non-compliance, as it did Steve Bannon and Peter Navarro.

For any of the rest of us, this would represent “a world of trouble.” Average American citizens cannot ignore subpoenas, congressional or otherwise, without grave legal jeopardy. We don’t know yet whether any indictments will be issued — on their merits — in any of these cases, but Donald Trump’s status as a former president of the United States may somehow shield him from legal consequences that would probably shatter anyone else.

Nothing in the U.S. Constitution or in congressional law protects a former president from legal action. The minute they hear the next person take the oath of office, the outgoing president becomes a regular American citizen again, subject to all the laws the rest of us must comply with. That’s the civics of the situation, but that’s not exactly how it works. Whatever the American people think of any given individual who has been president, however disillusioned or disgusted they might be, they have what amounts to a mystic regard for the presidency, and they have historically been exceedingly reluctant to treat former presidents like regular citizens. In other words, former presidents carry a kind of protective aura with them through the rest of their lives. In addition to getting preferential treatment at restaurants and ball games — some of this for security reasons — they do seem to levitate above the routine machinery of the law. It’s hard to imagine a former president getting a traffic or a parking ticket, for example.

It’s impossible to believe that in 233 years and 46 presidents, none has deserved to be both impeached and convicted. We have now impeached four times: Andrew Johnson in 1868; Bill Clinton in 1998; Donald Trump in 2019; and Donald Trump again in 2021. Each of the Senate trials that followed failed to convict and remove. Probably Richard Nixon would have been convicted if he had hung on through the inevitable Senate trial in 1974, but he resigned before that Senate drama could play out.

In Act Four, Scene Five of Shakespeare’s Hamlet, the usurper king Claudius is willing to present himself unarmed against the raging and rebellious Laertes, back from France to avenge the death of his father Polonius. With serene confidence Claudius says, “There’s such divinity does hedge a king” that he need not fear a violent attack by his closest counselor’s son.

William Jefferson Clinton

Take Bill Clinton, for example. He lied under oath during the Paula Jones sexual harassment debacle. The American public understood that people are likely to lie about illicit sexual activity, but it is nevertheless the case that Mr. Clinton perjured himself under oath. This is criminal behavior. Other individuals are frequently indicted for perjury and sometimes they go to prison. Why wasn’t Clinton indicted? Just hours before he left office on Jan. 20, 2001, the president reached a deal with the independent counsel. If he agreed to issue a formal admission of his crime before he ceased being president, he would be spared criminal indictment. Accordingly, Clinton made a forthright admission, while still serving as president, that he had given false testimony under oath. In his statement, Clinton wrote, “I tried to walk a fine line between acting lawfully and testifying falsely, but I now recognize that I did not fully accomplish this goal and that certain of my responses to questions about Ms. [Monica] Lewinsky were false. I hope my actions today will bring closure and finality to these matters.” That was pretty half-hearted, but it did the job.

Prosecutor Robert W. Ray decided this was sufficient. “I think it’s a collateral benefit to the country that the new president [George W. Bush] be given a fresh start if that can be achieved,” Ray said. “The best interests of the country would be achieved by letting the past be the past.” In other words, the prosecutor in the case decided not to indict, not because Clinton was innocent, but because he did not want Clinton’s legal troubles to cloud the “fresh start” of a new president of the United States. Prosecutors make judgment calls all the time, of course, but it is clear that Bill Clinton carried some occupational immunity with him as he exited the White House. Is this fair and just? If Clinton had been leaving his position as the CEO of a Wall Street firm, would the prosecutors have decided not to indict for “the best interests” of the industry?

Clearly, there is a hedge that protects former presidents of the United States.

Richard Milhous Nixon

After Richard Nixon resigned in disgrace on Aug. 8, 1974, to avoid an impeachment trial, it was clear that he was heading for one or more indictments for his crimes. But just a month later, his replacement, Gerald R. Ford, went on national television to grant Nixon “a full, free and absolute pardon.” Ford said, “We would needlessly be diverted from meeting [the nation’s] challenges if we as a people were to remain sharply divided over whether to indict, bring to trial, and punish a former president, who already is condemned to suffer long and deeply in the shame and disgrace brought upon the office he held. Surely, we are not a revengeful people. We have often demonstrated a readiness to feel compassion and to act out of mercy. As a people we have a long record of forgiving even those who have been our country’s most destructive foes.”

President Ford’s argument makes sense. It was time to declare that “our long national nightmare is over,” as he put it on Aug. 9 when he took the oath of office. The post-resignation criminal trials of Richard Nixon would have sucked all the oxygen out of Ford’s attempts to do the nation’s business, and prolonged the agony of the Watergate affair, which had stunned the nation and brought federal government activity to a standstill for two years. But to argue that Nixon had suffered enough, that because he would have to carry his guilt through the rest of his life he should now be spared the logical legal outcome of his serious crimes, has little to do with legal justice and everything to do with the fact that, if indicted, Nixon would have been the first former president to cross that threshold.

The Dynamics of Hesitation

Just as no president has been successfully impeached, so no former president has been indicted. When the justice system reaches that line, it hesitates, and until now it has stepped back. There is perhaps a sense that if that threshold is ever crossed, either in an impeachment conviction or a criminal indictment, such action might become routinized as a political tool or — what is equally problematic — the appearance of being a political tool. Perhaps we are still so respectful of the presidency as a constitutional institution, carrying the aura of JFK, FDR, Theodore Roosevelt and Abraham Lincoln, that we cannot bear to push the button that says, “indict, convict, imprison.”

I think we as a people are understandably reluctant to put a former president on the stand, sequester a jury of their fellow citizens to determine their fate, and then send them to federal prison. It feels so unseemly, so dramatic, so grave. Some have argued that it would just be better for President Biden to pardon Trump and get it over with. It seems clear that Donald Trump is counting on that aura to protect him. His early announcement that he is running again for the presidency does not legally shield him from indictment in the cases that are underway, but he knows, as perhaps everyone knows, that his televised Mar-a-Lago announcement by itself raises something of a force field between him and the prosecutors.



If John Adams was right that the American republic is a government of laws and not men, and if we really subscribed to republican principles, we would find it quite possible to indict, convict and imprison former presidents. The ancient Athenians developed a constitutional mechanism to banish for 10 years the most troublesome and dangerous figures in their politics. It was called ostracism. Indicting a former president might even be a sign of the health of a republican system of government. We’d be sorry to see it come to that, of course, in part because it would call into question our wisdom in electing them in the first place, but it would have a salutary chastening effect on all subsequent presidents.

The first post-presidential indictment may come now, in one or more of the cases advancing toward Donald Trump. Writing in The Atlantic, Paul Rosenzweig has said, “The tradition of granting post-term immunity from prosecution to those who leave the White House now comes at too great a cost.” But it may well not happen. You can bet that there are exceedingly heated and painful conversations going on among prosecutors in Atlanta, New York City, and in the Robert F. Kennedy Building in the District of Columbia. One of my political associates said recently, “It may be bad for justice and the idea of justice, but it will be much better for the country, given the profound partisanship of this time, to just leave it alone.”

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You can also hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, The Thomas Jefferson Hour. He is also a frequent contributor to the Governing podcast, The Future in Context. Clay welcomes your comments and critiques of his essays and interviews. You can reach him directly by writing cjenkinson@governing.com or tweeting @ClayJenkinson.