Trump Opened Pandora’s Prosecutorial Box

For centuries America has avoided seriously considering whether former presidents should ever be prosecuted. Now that luxury is gone.

Illustration of a gavel on top of the presidential seal.
Getty; The Atlantic

One of Donald Trump’s biggest effects on American politics has been bringing ideas that used to be considered fringe into the mainstream. Although the most glaring examples include things like election subversion or cozying up to white supremacists, this summer has seen another previously outré idea become more common: prosecuting a former president.

For more than two centuries, law-enforcement agencies have shied away from or otherwise been able to avoid criminal investigations of former presidents. That’s not because they were models of probity. Warren Harding had the good sense to die before the Teapot Dome scandal broke. Richard Nixon, who said he was not a crook, was one but benefited from a pardon from his successor, Gerald Ford. Bill Clinton struck a deal to resolve his legal difficulties in the closing days of his presidency. Going after a former president has been seen as a move that is divisive at best and at worst could create a norm of persecuting political opponents. Until recently, even many consistent Trump critics have rejected the idea of charging him with crimes.

No more—now it is another taboo discarded. Over the summer of 2022, the conventional wisdom among pundits seems to have shifted from skepticism or agnosticism about criminally investigating Trump to support for investigations and a sense that an indictment is not only ever more likely but possibly even preferable. In late August, the New York Times editorial board wrote that prosecuting Trump was “a necessary first step” toward fixing “the greatest crisis in American democracy since the Civil War.” Commentators who have previously worried about the downside of a prosecution now see it as both likely and justified. Even the Times columnist Ross Douthat, a staunch Trump critic but stauncher conservative, is resigned to criminal cases against Trump while warning that the Justice Department must not make any errors.

The shift is primarily a product of the explosive disclosures about Trump removing public records from the White House, including highly sensitive ones, then allegedly lying about handing them over and attempting to obstruct the investigation. Compared with some of Trump’s previous scandals, this one is relatively easy to understand. The presence of classified info may rattle the former national-security officials who make up much of the legal commentariat in a way other controversies did not. Also, unlike other scandals that Trump has defused by misbehaving in the open, his subterfuge here creates an aura of guilt.

But the shift began even before the classified-documents scandal broke, with the slow corrosion of Trump’s standing with Republicans and the public inflicted by the House committee investigating his attempts to overturn the election. The committee’s hearings have demonstrated the depth and tenacity of the president’s efforts to subvert the results of the race before January 6 as well as his exhortation and approval of the riot that happened that day. These revelations have shaken even conservative commentators who are wary of prosecuting Trump.

Some people long ago decided Trump is a proper focus for law enforcement. In October 2020, the veteran Republican lawyer Paul Rosenzweig argued in The Atlantic that Trump should not be immune from criminal investigation and, if merited, prosecution, after he left office. Although many Democratic voters likely agreed with him, the position placed Rosenzweig outside the mainstream of legal commentary, which, like the judicial system, tends to put great faith in precedent. “There are no easy answers here,” he conceded before concluding, “It would be too great an affront to law for a president to have perpetual immunity.” (Rosenzweig has warned against expecting the justice system to solve the political problem posed by Trump, as have I, but this is separate from whether investigations are the right thing to do.)

Both the Mar-a-Lago fiasco and the January 6 hearings have changed opinions because they have shown that, whatever the downsides of acting, Trump’s behavior has been lawless and poses a continuing danger. As my colleague Adam Serwer writes, it’s clear that giving him a free pass will not work, because the country has tried that and he’s kept misbehaving.

Yet even after Trump’s sustained attempt to subvert the election results and his incitement of the January 6 riot, and even after the Senate failed to convict Trump in an impeachment trial (despite majority support), hesitation to pursue criminal investigations has persisted. The common thread among the skeptical arguments—setting aside the sycophantic defenses of Trump—is worry about provoking the former president’s masses of fans, as the journalist Jonathan Katz notes.

This argument for caution has some conceptual flaws. Primarily, it gives weight to the speculative danger of backlash to accountability, while downplaying the already concrete harms of allowing Trump to go untrammeled. Beyond that, it grants undue deference to the small faction of Trump fans who might react violently—though as the January 6 insurrection showed, the fears of violence are reasonable. But this amounts to granting a heckler’s veto to extremists, when majorities of the public consistently support greater scrutiny of Trump.

In February 2022, when news of Trump removing documents first emerged, 56 percent of people in a Suffolk/USA Today poll agreed that it was “a serious issue of governance that warrants further investigation.” In June, a similar portion—58 percent—supported charging Trump over his role in the insurrection, in an ABC News poll. The following month, a PBS NewsHour/NPR/Marist poll found smaller but still majority support for charges. (Only a third believed he’d face charges, though.) Last month, 57 percent in an NBC News poll voiced support for continued investigations. And in a Wall Street Journal poll released Thursday, 52 percent said the FBI had acted properly in the search.

Finally, this argument assumes that the damage here can still be avoided. It cannot. Criminally investigating and even prosecuting a former president was once unthinkable; it is now very much thinkable. The person most responsible for this is Trump himself. The situation is, at bottom, a tragedy for the country. America would be better off—and indeed was better off—if there were no need to seriously consider prosecuting a former president. His behavior has placed the country in a painful catch-22: If he does not face accountability, the rule of law will suffer and the presidency will become a haven for criminality. If he does, future administrations will likely try to punish their political opponents with prosecution. Trump might face consequences for mishandling public records or trying to overturn the election, but this is a wound to the republic that cannot be redressed.