The Presidential Precedent We Need to Be Talking About

Following the New York grand jury indictment of Donald Trump in March on false business records and campaign finance violations I was not alone detecting a sour wisp of anti-climax. A felony nexus with a misdemeanor does not feel proportionate to dealing justice to a president who has been, inter multi alia, impeached for incitement to insurrection.

But the impeachment is critical to understanding what kind of precedent we are setting with this case and how criminal law applies to the chief executive of the United States. The New York indictment is naming a former president—that is, a private American citizen—for allegations that predate his term in office.  This sidesteps, uneasily, a still-unanswered question in more than 200 years of American jurisprudence: whether the President of the United States can face criminal charges for actions taken while in office.

The Trump indictment is unique: no person who has held the executive office has faced criminal prosecution.  That is true. But there is an extensive legal history behind this unresolved question that explains in part why the New York case may be the best one to bring against Trump—and why other cases, such as the Georgia election tampering investigation, pose extremely problematic questions we may not want to resolve.

The New York Trump case is not complicated. As a candidate for president, regulated by federal election law, Donald Trump made payments to three separate parties to assure their silence about alleged infidelities he committed.  These payments were then hidden as business expenses rather than campaign contributions.  All of these actions took place before Trump assumed the presidency on Jan. 20, 2017, that is, when he was still a private citizen.

The fact pattern is important because they distinguish the case from other scandals, crimes, and misdemeanors allegedly committed by Trump and past presidents.

The urtext for modern presidential corruption is, of course, Watergate.  The Justice Department Special Prosecutor, Federal Bureau of Investigation, and the Judiciary Committee of both House and Senate all asserted jurisdiction of one kind or another as the break-in and cover-up were investigated.  The government charged 69 former government officials with crimes involving Watergate resulting in 48 guilty verdicts.  Archibald Cox won a crucial case in the Supreme Court forcing the president to release the infamous tapes recorded inside the Oval Office.

But, importantly, the Watergate grand jury named President Richard Nixon an unindicted co-conspirator, recognizing Nixon’s role in the crime without actually charging him.  That left the question about indicting a sitting president unanswered.  Wanting to avoid a lengthy high-profile court fight to settle the issue, Special Prosecutor Leon Jaworski (replacing Cox after the Saturday Night Massacre) determined that the only recognized constitutional authority in the case of alleged criminal conduct by the president was the House of Representatives exercising its impeachment powers.  He surrendered his case and its evidence to the House Judiciary Committee which proceeded with an impeachment vote that destroyed Nixon’s political support and forced him to resign.

In the Monica Lewinsky affair, Independent Counsel Kenneth Starr, while investigating allegations of sexual harassment that predated Bill Clinton’s presidency, stumbled across evidence Clinton had allegedly committed subornation of perjury while in the Oval Office. Starr, too, referred the lurid case to the House of Representatives, essentially affirming in practice the Watergate precedent, which resulted in Clinton’s impeachment followed by acquittal in the Senate trial.

The now-established norm of referring criminal investigations of the chief executive to the Congress was extended by Special Counsel Robert Muller to include pre-inauguration actions involving Russian collusion.  Trump’s alleged actions, taken as a presidential candidate and private citizen, implicated a sitting president.  Muller’s referral of the case to the House, which did not result in impeachment, again implicitly leans against indictment of a sitting president—even for alleged crimes committed before taking office.

Muller cited Justice Department guidelines—and they are just that, they are not federal  law or regulation—dictating that a federal prosecutor may not charge a sitting president as his reason for not indicting Donald Trump.  This decision unintentionally widened the scope of presumed immunity for the president: once in office, the chief executive is safe from criminal prosecution for actions committed before taking office.

These cases, which serve as political or historical rather than legal precedent, very deliberately side-step an uncomfortable, and undecided, question in U.S. law: How do we hold legally accountable a president who has committed a crime?  Implicit in this question are two more that we may not want to answer: Can a president be indicted for actions they took while in office? And, is the president immune from criminal indictment while serving in the office?

These are serious questions nobody should be in a rush to answer because the potential answers are at least as unsettling as leaving crimes unprosecuted.  Nonetheless, there is an historical analogue to the New York case that suggests a way for justice to prevail.

That is the case of Spiro Agnew, vice president under Richard Nixon.  In 1972, the U.S. Attorney in Maryland developed a powerful case documenting extensive corruption by Agnew as governor of Maryland—that is, prior to his vice presidency.  Agnew protested his innocence and asserted he could not be prosecuted as a sitting vice president. The only alternative, under those circumstances, was to refer the case to the House of Representatives for impeachment proceedings.  At this time, Watergate was in full saprophytic bloom and the White House did not want to give Congress any practice with impeachment.  So the U.S. Attorney struck a deal with Agnew: he would resign, appear in court as a private citizen, and plead nolo contendere to a single felony charge. He paid a fine of $10,000 and was placed on three years’ probation.

In other words, a criminal case was successfully brought against a former vice president for actions taken before he assumed federal office. That is very much what we are contemplating now with Trump in New York.

This has several implications. First is what it says about the other investigations around Trump, particularly the Georgia election tampering case that allegedly occurred while Trump was President. Prosecuting a former president for actions taken while president opens up a potentially huge space for litigation of all kinds which may be in the best interest of the country to avoid.  This was an essential element of the Watergate Special Prosecutor’s reasoned decision not to indict Nixon while he served.

The second House impeachment affirms this practice because it included Trump’s alleged Georgia election tampering in the charging document.  The Georgia state case would find it difficult to avoid an unwanted court fight over the question of whether impeachment or prosecution is the most Constitutional remedy for criminal actions taken by the president while in office.

So the New York case sidesteps an unsettled question of American law that we may not want to answer, now or ever. If Trump is tried and convicted in New York it will significantly shrink the space of immunity surrounding the President of the United States, serving and former, while preserving freedom of action by the chief executive and Congressional impeachment powers.  As we approach our republic’s semiquincentennial, that may be the best outcome we could reasonably expect from this most unprecedented of presidents.  It may not be completely satisfying.  But it will be an important demarcation containing abusive or illegal executive power, testament that in the United States no individual is above the law and the Constitution.