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American history offers no precedent for criminal trials of a former (and prospective) president.
This article appears in the July/August 2021 issue of The American Prospect magazine. Subscribe here.
Not long from now, Donald Trump may reoccupy the national spotlight in a way no former president ever has before: as a defendant in one or more criminal trials who is simultaneously running to regain political power. The New York investigation of Trump’s business dealings has now resulted in the first of what may be a series of indictments of the Trump Organization and its officers, ultimately leading to Trump himself. Even more explosive are possible cases stemming from actions he took while in office, including his conduct related to the January 6th assault on the Capitol.
These legal cases will be unfolding in political time as Trump reasserts his power in the Republican Party in the run-up to 2024 and claims the whole government is engaged in a massive conspiracy against him. We are not done with Trump, and he is not done with us.
American history offers no precedent for criminal trials of a former (and prospective) president. Many people, not just Trump supporters, would probably prefer to avoid trying him since it may make him into a martyr; I too might have liked to say, “Let’s just move on.” If the seven Senate Republicans who voted to convict Trump in his second impeachment trial had been joined by ten other members of their party, the Senate could have disqualified him from holding federal office again, and the country might have turned the page. (Congress might also have used the 14th Amendment to impose the same disqualification.) But the Senate’s failure to convict has left no choice. As The Boston Globe declared in an editorial in June, “Now there is only one way left to restore deterrence and convey to future presidents that the rule of law applies to them. The Justice Department must abandon two centuries of tradition by indicting and prosecuting Donald Trump for his conduct in office.”
But whether the U.S. legal system can bring Trump to justice is an open question. The record in prosecuting the rich and powerful is not encouraging. We have a deep-seated culture of impunity that offers the privileged seemingly inexhaustible escape hatches from being held legally accountable.
The presidency gave Trump a new basis for escaping legal accountability.
So far, the life of Donald Trump has been a study in the culture of impunity: taxes dodged in the inheritance from his father, debts expunged through six bankruptcies, business failures eclipsed by his TV role as a supposed business genius, contractors stiffed, allegations of sexual harassment or assault by at least 18 different women waved off. Trump’s entire life has taught him the lesson that he can defy the law and social norms and get away with it.
The presidency gave Trump a new basis for escaping legal accountability. Under a Justice Department opinion never tested in court, a president cannot be indicted while in office. And, under an unwritten norm, the federal government does not prosecute former presidents for their actions in office once they have left it. That adds up to a perfect formula for putting presidents above the law for anything they do while president.
Consider how Trump never faced any consequences for violating the Constitution’s Foreign Emoluments Clause, which bars federal officers from taking money or gifts from a foreign government. Other presidents have divested themselves of assets or put them in a blind trust, but Trump did neither. Shortly after his election, a Saudi lobbyist paid for 500 rooms at the Trump International Hotel in Washington as part of a lobbying campaign against a bill the Saudi government opposed—one of several known instances in which foreign governments or their representatives funneled money to Trump. On January 23, 2017, three days after Trump took office, Citizens for Responsibility and Ethics in Washington filed suit against him for violating the Emoluments Clause, but during the four years he was president the courts were somehow unable to resolve the issue. On January 25, 2021, the Supreme Court dismissed the emoluments case on the grounds that Trump’s departure from the presidency five days earlier rendered the case moot. The Court protected itself from having to make a hard decision; it failed the country. The Emoluments Clause is an explicit anti-corruption rule in the Constitution, and our legal system could not figure out how to enforce it against Trump.
At Trump’s second impeachment trial, the majority of Republican senators used the same kind of escape hatch to avoid confronting his role in the January 6th insurrection. They took the position that he couldn’t be convicted after leaving office, even though the Senate has previously convicted former officials at impeachment trials. The rationale is obvious: Such officials could resign after being impeached but before a trial began and thereby escape a conviction and the penalty of being disqualified from holding federal office again. It also makes no sense that the Constitution would leave Congress with no means of convicting presidents if they committed high crimes and misdemeanors so close to the end of their term that Congress would be unable to act in time.
The Emoluments Clause is an explicit anti-corruption rule in the Constitution, and our legal system could not figure out how to enforce it against Trump.
Immediately after the Senate’s verdict, Mitch McConnell declared on the Senate floor that Trump was “still liable for everything he did while he was in office,” “didn’t get away with anything yet,” and could still face legal consequences. What McConnell and other Republicans will say if and when Trump is indicted remains to be seen. But even apart from the predictable partisan opposition, the criminal justice system may not hold Trump accountable for two reasons. Unlike the Senate, it cannot hold Trump liable for his failures to perform the duties of the presidency. Criminal cases will turn on more narrowly defined criteria—criteria that are in some respects narrowly defined to protect private individuals from the power of the state, not to judge the actions of those with the highest public responsibilities.
Moreover, the criminal justice system operates slowly, and Trump’s lawyers may see to it that it operates so slowly that trials are delayed until he is in the midst of another presidential campaign, at which point the courts may postpone the cases indefinitely. The reluctance of the courts to proceed against the leader of the opposition party may protect Trump in the cases involving his private business as well as his actions in office.
The charge by the House of Representatives against Trump in his second impeachment trial was “incitement of insurrection,” which could translate into at least two criminal charges—incitement and seditious conspiracy under the federal insurrection statute. In a 1969 case, Brandenburg v. Ohio, the Supreme Court expanded First Amendment protections for “advocacy of the use of force or of law violations,” declaring that the government could not punish such advocacy except when it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
In his post–impeachment trial speech to the Senate, McConnell castigated Trump in terms that are specifically relevant to the Brandenburg criteria:
There is no question that President Trump is practically and morally responsible for provoking the events of that day.
The people who stormed this building believed they were acting on the wishes and instructions of their president.
And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth. …
The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things.
McConnell then went to answer a Trumpian defense, distinguishing what Trump did from what “many politicians” do when they “make overheated comments or use metaphors that unhinged listeners might take literally”:
This was different. This was an intensifying crescendo of conspiracy theories, orchestrated by an outgoing president who seemed determined to either overturn the voters’ decision or else torch our institutions on the way out.
The unconscionable behavior did not end when the violence began. Whatever our ex-president claims he thought might happen that day, whatever reaction he says he meant to produce, by that afternoon, he was watching the same live television as the rest of the world. A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him.
McConnell noted that although “it was obvious that only President Trump could end this,” he did not “do his job” and “take steps so federal law could be faithfully executed, and order restored” but instead “watched television happily as the chaos unfolded” and “kept pressing his scheme to overturn the election!”
But then, after making the case that Trump knew that he was provoking “imminent lawless action,” McConnell gave himself an escape hatch if Trump is charged criminally with incitement: “By the strict criminal standard,” McConnell said, “the president’s speech probably was not incitement.” We can be sure that is exactly what Trump’s lawyers will argue—that Trump did not explicitly call for the use of force against Congress, even though he invited it and reveled in it while his followers were assaulting the Capitol.
Trump’s defenders will also likely insist that he is not guilty of seditious conspiracy because he didn’t call explicitly for the use of force in whatever private communications took place between Trump or his aides and the insurrectionists—as though his public encouragement was not plain evidence of his role.
But none of this may matter because in the cases that may be brought against Trump, the courts may never get to a final verdict. So cautions Yale Law professor Bruce Ackerman.
In a conversation with me about the potential Trump prosecutions, Ackerman noted that these cases will be a “race against time”—of legal time against political time—and the lawyers that Trump retains will have plenty of opportunities to run out the clock. Republican-appointed judges may also contribute to slow-walking the cases until the point in 2023 when the next presidential election season has begun, at which time there will be constitutional arguments for the courts to avoid making any decision.
In other words, like the emoluments case or the second impeachment trial, the criminal prosecutions may end, not with a verdict, but with the evasion of a verdict—if, in fact, there are prosecutions. In our culture of impunity, there are always higher reasons for letting the big shots off. After the financial crisis, the higher reason for not prosecuting the corporate leaders responsible for abuses was the supposed damage that the whole economy would suffer. Now the higher reason will likely be that indicting Trump would set a woeful precedent for criminal prosecutions of former political leaders. But if prosecution is ruled out, why would presidents—including perhaps Trump again in 2025—believe the law can be enforced against them?
Trump has repeatedly bet that he could defy the law and get away with it because the country’s legal institutions are too slow and too weak to stop him. He’s been right his whole life. And Trump himself is just the most conspicuous case of the failure of the criminal justice system to enforce the laws against the privileged and the powerful. If the system is unable once again to do anything about his violations of law, the verdict may fall on the system itself and those who have sworn to defend the Constitution but just can’t figure out how to do it.
