No president of the United States has ever been prosecuted. Richard Nixon, who likely came the closest, was rescued from the threat of criminal charges by a pardon bestowed by his successor, Gerald Ford. But now, in the wake of the Mueller report’s account of potential obstruction of justice by President Donald Trump, Democratic politicians are beginning to weigh the possibility that Trump will be brought before a court.
“I want to see him in prison,” Speaker of the House Nancy Pelosi reportedly told House Democrats in a closed-door meeting earlier this month. And asked by the NPR reporter Scott Detrow whether, as president, she would support bringing an obstruction case against Trump, the Democratic presidential candidate Senator Kamala Harris answered: “I believe that [the Department of Justice] would have no choice and that they should, yes.”
Harris framed her answer in the language of justice: “Everyone should be held accountable, and the president is not above the law.” Yet her comments should be concerning to anyone who cares about maintaining the independence of law enforcement from political influence.
The idea that a presidential candidate can permissibly endorse the potential prosecution of a political opponent is itself a sign of how much damage Trump has done to that principle. Part of that damage comes from Trump’s own insistence on treating the Justice Department as a personal political tool, which eats away at the codes of behavior that have, in the past, barred politicians from making similar promises. Part of it also comes from the strain Trump has put on the constitutional system. Trump’s conduct is what has forced these questions on presidential candidates and political leaders: What, after all, do you do with a possibly criminal ex-president? What does it mean to balance accountability against the importance of preserving an apolitical system of law? How, in the wake of the Trump presidency, are Americans to understand what “justice” means?