WASHINGTON \u2014 For the first time in American history, a former president of the United States has been indicted on criminal charges. It is worth pausing to repeat that: An American president has been indicted for a crime for the first time in history.<\/p>\n
So many unthinkable firsts have occurred since Donald J. Trump was elected to the White House in 2016, so many inviolable lines have been crossed, so many unimaginable events have shocked the world that it is easy to lose sight of just how astonishing this particular moment really is.<\/p>\n
For all of the focus on the tawdry details of the case or its novel legal theory or its political impact, the larger story is of a country heading down a road it has never traveled before, one fraught with profound consequences for the health of the world\u2019s oldest democracy. For more than two centuries, presidents have been held on a pedestal, even the ones swathed in scandal, declared immune from prosecution while in office and, effectively, even afterward.<\/p>\n
No longer. That taboo has been broken. A new precedent has been set. Will it tear the country apart, as some feared about putting a former president on trial after Watergate? Will it be seen by many at home and abroad as victor\u2019s justice akin to developing nations where former leaders are imprisoned by their successors? Or will it become a moment of reckoning, a sign that even someone who was once the most powerful person on the planet is not above the law?<\/p>\n
\u201cWhether the indictment is warranted or not, it crosses a huge line in American politics and American legal history,\u201d said Jack L. Goldsmith, a Harvard Law professor and former top Justice Department official under President George W. Bush.<\/p>\n
If that were not enough to shake the timbers of the republic, the first may not be the last. Mr. Trump could face a second indictment in Georgia and a third from federal prosecutors and potentially even a fourth.<\/p>\n
There is consternation that the barrier-shattering indictment would involve something as unseemly as paying hush money to cover up a sexual romp. Given that the defendant has been involved in far more earth-shattering events like trying to overturn an election and inspiring an attack on the Capitol to prevent the transfer of power, the allegations by Manhattan prosecutors seem less than epochal.<\/p>\n
But if the issue is accountability, then the case could redraw the lines and make it less daunting for prosecutors in Georgia and Washington to follow suit by charging more serious crimes if they have the evidence, since they will not have to bear the burden of justifying action never taken before. Leave it to the only president ever impeached in Congress twice to face so many prosecutions that lawyers need a scorecard just to keep track.<\/p>\n
While the indictment of Mr. Trump takes the country into uncharted waters, the authors of the Constitution might have been surprised only that it took so long. Justice Department policy maintains that sitting presidents cannot be indicted, but the framers explicitly contemplated the prospect of them being charged after leaving office.<\/p>\n
A president impeached by the House and convicted and removed from office by the Senate \u201cshall nevertheless be liable and subject to indictment, trial, judgment\u00a0and punishment, according to law,\u201d Article I, Section 3 of the Constitution declares.<\/p>\n
\u201cGenerally, we consider that language to suggest that, whatever may happen with respect to an impeachment while a president is in office, he still may be held liable civilly or criminally after he leaves office for his misconduct in office,\u201d said Michael J. Gerhardt, a constitutional law professor at the University of North Carolina.<\/p>\n
In other words, no former president was immune from criminal liability. \u201cThe framers would have been horrified at the possibility of a president ever being above the law while in office or after leaving it,\u201d Mr. Gerhardt said.<\/p>\n
Indeed, while voting to acquit Mr. Trump at his second impeachment trial \u2014 the one charging him with inciting the Jan. 6, 2021, attack on the Capitol \u2014 Senator Mitch McConnell, the Republican leader from Kentucky, said he did so because Mr. Trump was no longer in office but added that he was still subject to criminal prosecution.<\/p>\n
\u201cMy view is that so long as the case that is brought is for a crime that is not unusual to charge, and the proof is also as strong as one would normally have \u2014 i.e. that one wards against the problem of selective prosecution \u2014 then it is imperative that we hold politicians to account regardless of what position they hold or held,\u201d said Andrew Weissmann, a deputy to Robert S. Mueller III, the special counsel who investigated the Trump campaign\u2019s ties to Russia.<\/p>\n
Meena Bose, who is the executive dean of Hofstra University\u2019s Peter S. Kalikow School of Government and runs a presidential history project, said that a country plagued by polarization and concerns about democracy would be stronger by enforcing responsibility on its leaders. \u201cAn active and continuing commitment to making sure all public officials follow the rule of law is essential to addressing those challenges,\u201d she said.<\/p>\n
But others worry about the long-term consequences for the presidency, not least because this indictment is being brought by a local prosecutor rather than the Justice Department, opening the door to prosecutors around the country taking it upon themselves to go after a president.<\/p>\n
In 2008, voters in two small towns in liberal Vermont approved resolutions accusing Mr. Bush and Vice President Dick Cheney of \u201ccrimes against the Constitution\u201d and instructing their town attorneys to draft indictments. Nothing ever came of it, but it is not hard to imagine a conservative local prosecutor trying to charge President Biden with, say, failing to adequately guard the border.<\/p>\n
How Times reporters cover politics.<\/strong><\/span>\u00a0We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.<\/span><\/span><\/p>\n \u201cThis presents the opportunity for potentially thousands of state and local prosecutors to investigate and charge a president without the impediment imposed by D.O.J.\u2019s policy against indicting sitting presidents,\u201d said Stanley M. Brand, a former House counsel whose firm represents a couple of Trump associates in the investigation into the mishandling of classified documents. \u201cIt theoretically subjugates the presidency in a way I don\u2019t believe was ever constitutionally contemplated.\u201d<\/p>\n Mr. Goldsmith said any prosecution could tear at the fabric of the system. \u201cEspecially if this indictment is followed by even a justified indictment from the special counsel, we will see recriminations and retributions in the medium term, all to the detriment of our political national health,\u201d he said.<\/p>\n Mr. Trump\u2019s allies branded the Manhattan case political even before any indictment without waiting to review the actual evidence. Whatever Alvin L. Bragg, the district attorney, turned up was immaterial \u2014 to defend their party\u2019s most recent president, and possible next nominee, they preemptively declared the prosecution illegitimate because it was brought by a Democrat.<\/p>\n Representative Mark E. Green, Republican of Tennessee and the chairman of the House Homeland Security Committee, compared any prosecution of Mr. Trump to political cases in less developed countries. \u201cDaniel Ortega arrested his opposition in Nicaragua and we call that a horrible thing,\u201d he said last week. \u201cMr. Biden, Mr. President, think about that.\u201d<\/p>\n Locking up former leaders on specious, politically driven charges may be common in the world\u2019s autocracies, but some of the most advanced democracies have not shied away from putting their leaders on trial for crimes. In Israel, former Prime Minister Ehud Olmert spent more than a year in prison for bribery, fraud and other charges while the incumbent prime minister, Benjamin Netanyahu, is currently on trial on similar charges.<\/p>\n In Italy, former Prime Minister Silvio Berlusconi, who just regained some power as part of a governing coalition, has faced 35 criminal court cases during his long career, although he was definitively convicted just once for tax fraud and sentenced to a year of community service. Just last month, he was acquitted on charges of bribing witnesses at a previous underage prostitution trial.<\/p>\n Other leaders of democratic nations convicted in recent years include former Presidents Jacques Chirac (embezzlement) and Nicolas Sarkozy (influence peddling) in France, former President Park Geun-hye (corruption)\u00a0in South Korea and former President Chen Shui-bian (bribery) in Taiwan.<\/p>\n In the United States, Teapot Dome, Watergate, Iran-contra and Whitewater never put a president in the dock. The only sitting president to see the inside of a police station as a defendant was Ulysses S. Grant, who was stopped for speeding down the streets of Washington in his horse-drawn carriage. He paid $20 and went on his way.<\/p>\n While no president has ever been indicted before, an early vice president, Aaron Burr, was put on trial for treason after leaving office for plotting to carve off Western territories into a new country, although he was acquitted. Nearly two centuries later, another vice president, Spiro T. Agnew, resigned amid a plea deal in a corruption case.<\/p>\n Mr. Trump would not be barred from running for his old office by an indictment or even a conviction. In 1920, Eugene V. Debs, the Socialist leader, mounted his fifth bid for the White House from prison, where he was serving time for his opposition to World War I. He received 919,799 votes, or 3.4 percent of those cast. Of course, unlike Mr. Trump, he was not a major-party candidate and had no prospects of winning.<\/p>\n At least a couple other presidents worried about being indicted after office. Richard M. Nixon was pardoned by his successor, Gerald R. Ford, a month after resigning, sparing him any prosecution in the Watergate scandal. Bill Clinton struck a deal with Whitewater prosecutors on his last full day in office in which he admitted providing false testimony under oath about his affair with Monica S. Lewinsky, gave up his law license for five years and paid a $25,000 fine in exchange for not facing charges as a private citizen.<\/p>\n In pardoning Mr. Nixon, Mr. Ford was not trying to set a precedent barring future prosecutions of a president, said the historian Richard Norton Smith, whose biography of Mr. Ford, \u201cAn Ordinary Man,\u201d will be published next month. Instead, he was trying to move the country beyond Watergate as he confronted challenges like inflation, the last vestiges of the Vietnam War and deep public cynicism.<\/p>\n \u201cHe wasn\u2019t forgiving Nixon so much as he was trying to forget him,\u201d Mr. Smith said. \u201cThat is, to counter the popular, political and media obsession that, quite understandably, had formed around the previously unthinkable concept of an American president facing jail time. And the existence of which prevented him from doing his job or the American people from moving on to confront all the problems that Nixon left behind him.\u201d<\/p>\n That decision, he added, should not mean that Mr. Trump is handed a get-out-of-jail-free card due to Mr. Ford. \u201cIt seems more than a little unfair to make him a scapegoat for the wrongdoing of subsequent presidents,\u201d Mr. Smith said. \u201cAs he himself warned in 1980, if voters ever chose an arrogant president \u2018and I mean in a vicious way \u2014 God help the country.\u2019\u201d<\/p>\n