Indicting a Former President Should Always Have Been Fair Game

A New York grand jury is treating the former commander in chief like everyone else.

A black-and-white photo of the White House
Erin Scott / Reuters

No former president of the United States has ever been indicted at either the federal or state level. That more-than-two-centuries-old record, if you want to call it that, looks like it could soon be broken—something that should have happened a long time ago.

A few American presidents have certainly behaved questionably enough to meet the standard of probable cause needed for an indictment. Given this, the fact that no former president has ever been prosecuted implies some kind of political tradition—one the Founders never intended to establish. They made clear in the Constitution—specifically in Article I, Section 3, Clause 7, which says an impeached president can be tried after he leaves office—that indictments of former presidents aren’t supposed to be taboo.

Yet our system of government has had a hard time mustering the will to prosecute disgraced presidents. The closest the country has ever come to such a moment, until now, was in January 2001, when Independent Prosecutor Robert Ray decided not to seek an indictment of former President Bill Clinton for lying under oath about his affair with Monica Lewinsky. Ray had wanted to indict Clinton. Sources later told the legal scholar Ken Gormley that Ray was “ready to pull the trigger” once Clinton left office. Ultimately (reportedly after being persuaded by his deputy, Julie Thomas), Ray decided that if Clinton agreed to a deal that included publicly admitting to having been misleading and evasive under oath, the country would get closure after the long Whitewater investigation and didn’t need to see him indicted.

Twenty-five years earlier, Special Prosecutor Leon Jaworski had been far less enthusiastic than Ray about prosecuting a different former president—Richard Nixon. Jaworski’s posture may seem surprising given the crimes not only that Nixon was accused of but for which there was direct evidence on tape—it certainly surprised me when, in the 2000s, I immersed myself in the history of Watergate as the founding director of the Richard Nixon Presidential Library and Museum. An overwhelming majority of Jaworski’s Watergate-trial team didn’t share his reluctance to indict Nixon. Jaworski’s deputy, Henry Ruth, described eloquently the weight of the decision Jaworski faced. Ruth wrote to the special prosecutor in the summer of 1974:

Indictment of an ex-President seems so easy to many of the commentators and politicians. But in a deep sense that involves tradition, travail and submerged disgust, somehow it seems that signing one’s name to the indictment of an ex-President is an act that one wishes devolved upon another but one’s self. This is true even where such an act, in institutional and justice terms, appears absolutely necessary.

“Yeah, well, I just don’t think it would be good for the country to have a former president dumped in the D.C. jail,” Nixon told the vice-presidential nominee Nelson Rockefeller in a telephone conversation on August 24, 1974. Nixon accepted that as a former president he could be indicted, but he had his lawyer argue against indictment on the basis that a fair trial would be impossible—effectively a violation of Nixon’s Sixth Amendment right to an impartial jury—because of the highly publicized impeachment process. And Jaworski agreed. “I knew in my own mind that if an indictment were returned and the court asked me if I believed Nixon could receive a prompt, fair trial as guaranteed by the Constitution, I would have to answer … in the negative,” he wrote in his Watergate memoir, The Right and the Power.

Jaworski hoped Nixon’s successor, Gerald R. Ford, would take the decision out of his hands. After Ford revealed at his first press conference, on August 28, 1974, that he was considering pardoning Nixon, Jaworski told his top lieutenants, “I certainly would not ask the grand jury to indict Nixon if President Ford intended to pardon him.” Fortunately for Jaworski, Ford didn’t want to wait for an indictment. The day after his press conference, Ford instructed his closest advisers to review whether a president could pardon an individual before an indictment. When Jaworski met with Philip W. Buchen, Ford’s White House counsel, on September 4 to signal to the president that if he intended to pardon Nixon, it should be done before an indictment, Jaworski was pushing an already open door. Two days earlier, Ford’s team had told the president he didn’t have to wait for the special prosecutor to act.

A number of considerations compelled Ford to act quickly (Nixon’s poor health, concerns over the protection of Nixon’s tapes and papers, which in that era a former president had the right to destroy), but the anticipated costs to the presidency and the nation of a drawn-out prosecution—and the difficulty of a fair trial—figured prominently among them. At his meeting with Jaworski, Buchen asked Jaworski how long he thought it would take for the Watergate scandal to die down enough to make a fair trial possible for Nixon. Jaworski’s answer was discouraging.  “A delay, before selection of a jury is begun, of a period from nine months to a year, and perhaps even longer,” Jaworski wrote in his formal reply to Buchen after the meeting. As for jury selection itself, Jaworski wouldn’t even hazard a guess about how long that could take. America could have been well into its bicentennial year—and a presidential-election year—before Nixon stood trial. Four days later, Ford pardoned Nixon.

In the cases of both Clinton and Nixon, the behavior at issue occurred during their time in office. Until Donald Trump, you have to go back to the late 19th century to find even the whiff of possibility that a former president would be indicted for something done before or after his presidency. Following the collapse of his Wall Street brokerage firm, Grant & Ward, in 1884, former President Ulysses S. Grant came under some suspicion when his partner, Ferdinand Ward, was arrested for fraud. But Grant, who was dying of throat cancer and would spend his last painful months writing his memoirs in order to leave an inheritance and enable his widow to pay back the family’s debts, turned out to be as much a victim of Ward’s lies as his investors were.

There will be a lot of discussion in the coming days about the political utility (for Trump) and political price (perhaps for his detractors) of Trump’s indictment for a felonious scheme in New York City, but taking the long view, it is about time our country set this precedent. Good government requires a little fear among the powerful, including presidents. Presidents especially need to know that if they engage in criminal acts, their power cannot protect them forever.

Should a group of New York grand jurors soon decide that the indictment of Trump is “absolutely necessary,” they will finally confirm, as the Founders expected, that ordinary citizens have the power to treat former commanders in chief like anyone else. And that’s something that should always have been an American tradition.