All the President's Men

It took precisely two hundred and thirty-three years and ten months. The Teapot Dome, Operation Menu, Watergate, Iran-Contra, Whitewater, Iran-Afghanistan and Extraordinary Rendition to name a few of the most grievous presidential scandals: not a single Executive faced any criminal repercussions. In 1872, President Ulysses S. Grant was arrested for speeding in DC in his horse-drawn carriage; the Civil War hero paid a twenty dollar fine and continued with his affairs. That was the closest experience the American people ever had concerning their President and the criminal law. 

The seismic consequences of indicting a former President of the world’s most powerful nation led Gerald Ford to pardon Richard Nixon, sparing him a potential prosecution for the Watergate fiasco. William Jefferson Clinton, on his last full day in office, came to an agreement with Whitewater prosecutors, where he admitted committing perjury (in relation to the Lewinsky scandal), relinquished his law license for five years and paid a fine, in exchange for immunity against any potential charges as a private citizen. The trauma and political circus following Watergate and Clinton’s impeachment led to the decision that it was better for the nation to draw a line in the sand and move on. This was a calculated decision in the supposed interests of political healing. 

It is important to note that a President possesses no talismanic immunity against criminal prosecution. In 2019, the Supreme Court in its landmark decision in Trump v. Vance, emphatically re-affirmed the bedrock principle that even a serving President does not stand above the law. It is almost certain that a serving President cannot be indicted: Article II, Section 4 of the Constitution preempts any criminal proceedings of an incumbent with the impeachment process. A President can be removed from office upon conviction in the Senate (in an impeachment trial) for “Treason, Bribery, or other high Crimes and Misdemeanors.” Once out of office, the President, as a private citizen, stands as an equal to any other American (at least in theory). 

The Founding Fathers, who abhorred unitary power and autarchy, expressly contemplated the possibility of a President facing criminal liability after leaving office. Article I, Section 3 of the Constitution spells out that even a president impeached by the House and convicted and removed from office by the Senate “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” This makes eminent sense, as the Framers painstakingly crafted a Constitution where sovereignty lies in the people and not a king, unlike the motherland where the monarch was above the law. 

Indicting a President is an entirely different beast to whether you can indict them. Lurking in the background is the stench of political persecutions, common in autocracies: the guy in power today rounding up his political opposition on sham charges, locking them up and throwing away the key (or sometimes, taking a shortcut with the firing squad). Notwithstanding, that simply cannot be enough to create a de facto barrier to prosecution of high-ranking officials, including Heads of State. That would not be consonant with any articulation of the rule of law. If the government can aggressively pursue a poor fellow for possession of a couple of joints, the President should not enjoy a berth of impunity by reason of status and the mere conjuring of a “persecution”. 

A number of mature democracies have not shied away from prosecuting their leaders: Israel, Italy, France, South Korea and Taiwan bear witness to this. Ultimately, any prosecution is “selective”, in the sense that it is always at the untrammelled discretion of the relevant prosecutor whether to charge or not (or to recommend charges to a grand jury). The point is that the mere status of an individual as a former President cannot serve as a shield in that decision-making process: if that were the case, any pretense of equal treatment before the law vanishes. 

That brings us to Donald John Trump, probably the most rancorous and delusional President heretofore. Just a month shy of two hundred and thirty-four years since Mr Washington’s maiden day in office, we have witnessed the first indictment of an American President. It bears repeating: in over two centuries of the Republic’s existence, an American President has been indicted for a crime for the first time. This is an epochal moment for the United States, whatever your personal predilections are on the forty-fifth President. A road never travelled before, this is a perilous moment for the nation. Mr Trump, with his penchant for inviting violence and disorder, will not go quietly in the night. The only President to ever attempt a coup d’etat — simply because his fragile ego could not accept the sovereign will of the American electorate — will not hesitate for a moment to stir up serious public disturbances.

We must be cognisant of the fact that Trump is still the favourite for the Republican nomination for President. The election is less than twenty months away. Even a conviction and imprisonment would not — at least constitutionally speaking — bar Trump from running or from assuming office. In America, sovereignty lies in the people, and it is their prerogative whether they seek to support and elect a convicted man. In 1920, Eugene Victor Debs, the leader of the American Socialist Party, who was unjustly imprisoned for nothing more than expressing his opposition to US entry into World War I, received nearly one million votes from the confines of his prison cell. What would happen if an individual is convicted and sentenced for a crime while awaiting to assume the Presidency, is a matter, I believe, that did not cross the minds of the Nation’s Founders; there is a more than minimal possibility that we will find out. 

Of the sprawling criminal investigations that Mr Trump is facing, the New York charges are by far the least serious; this does not make them unmeritorious, and we must wait to see the extent of their gravity when the indictment is unsealed. The die is now cast; whether this gives prosecutors in Georgia (investigating potential election-related crimes, solicitation and racketeering), and the Department of Justice (investigating potential unauthorised retention of government documents, obstruction, and the most serious of all, an attempt to impede the lawful transfer of power) more confidence to bring forth indictments, remains to be seen. In every case where the former President faces scrutiny, he always — rather tediously — cries foul: “witch-hunt”, “very unfair”, “political persecution”, “weaponisation of the justice system”; we’ve heard that record a million times. The bind is that tens of millions of Americans earnestly believe what the snake-oil salesman is telling them, and most Republican officials in Washington are still towing the line. Alas, this story may not have a happy ending. 

America is facing a reckoning: the winds of political virulence have not cooled; the foundations of its democracy are trembling; the fevers of authoritarian-cultism have not broken. The jury is still out. As Benjamin Franklin said it’s “a Republic; if you can keep it.” At least, for a brief moment in time, America can lay claim to the fact that no one, not even the President, is above the law. That is a noble ideal.