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The Only Thing Worse Than Prosecuting a President Is Not Prosecuting One

Trump’s imminent arraignment has spawned a wide and reckless array of legal hot takes.

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Former U.S. President Donald Trump arrives in New York City ahead of his scheduled arraignment on Tuesday following his indictment by a grand jury.

Former President Donald Trump is set to be arraigned on Tuesday in New York City after his indictment by a local grand jury last week. We don’t yet know the charges that he faces; those will be unveiled during Tuesday’s proceedings. Reporting by major news outlets suggests that charges are related to hush-money payments to adult-film actress Stormy Daniels during the 2016 election. But Manhattan District Attorney Alvin Bragg’s office has investigated Trump for other things as well, and he could surprise us.

Without more information, there is little point in speculating about the charges and their potential consequences for Trump. Naturally, that hasn’t stopped a great many commentators from weighing in with practical or philosophical criticisms of an indictment that they haven’t read. Much of this discourse involves whether it is appropriate to indict a former president at all. None of it is particularly persuasive.

I’ll start with the most extreme claims. When Fox News hosts weren’t busy reeling from their big loss last week in the Dominion defamation lawsuit, they were denouncing the imminent Trump indictment as illegitimate and lawless. Tucker Carlson, who occasionally dabbles in hyperbole, described it as a “political purge” and suggested the rule of law had been suspended. More than a few right-wing commentators, including one of Trump’s sons, likened the case to what happens in “third world” countries or “banana republics.” South Carolina Senator Lindsey Graham even made an emotional plea to viewers to “give the president some money to fight this bullshit.”

Carlson and Graham aren’t really trying to make serious arguments here, so there isn’t much point dwelling on them. But the “third-world banana republic” point is common enough that it’s worth addressing. If anything, the problem in those countries is typically that there are too few prosecutions of corrupt and lawless officials, not too many of them, and that public confidence in the rule of law naturally declines as a result. Mature liberal democracies can and do prosecute their leaders. Former leaders in France, Italy, and South Korea have all faced criminal charges in recent years without those countries devolving into anarchy or kleptocracy.

Other denunciations are more pragmatic in nature. They do not necessarily defend Trump’s conduct per se; indeed, there is not really much of a factual dispute between Trump and his critics about what actually happened. Instead they insist that there was some kind of preexisting norm against prosecuting former American presidents and that Bragg—and, by some alchemy, Democrats writ large—have recklessly violated it.

“The danger for America is the precedent this prosecution sets,” The Wall Street Journal’s editorial board claimed on Thursday. “Mr. Bragg is busting a political norm that has stood for 230 years. Once a former President and current candidate is indicted, some local Republican prosecutor will look to make a name for himself by doing the same to a Democrat. U.S. democracy will be further abused and battered. Mr. Bragg, the provincial progressive, is unleashing forces that all of us may come to regret.”

In fact, Trump will not actually be the first sitting or former president to be arrested; that dubious honor belongs to Ulysses S. Grant, who was arrested for riding a horse too fast in the nation’s capital in 1872. Trump will indeed be the first president to be indicted at any level—but only because Gerald Ford pardoned Richard Nixon in 1973 before the latter could face a near-certain federal indictment for his role in the Watergate crisis. Indeed, Ford pardoned Nixon precisely to avoid that possibility. To whatever extent that norm existed, it is safe to say that Watergate both established it and undermined it simultaneously.

Other critics warned of potential retaliation. “If a prosecution that even some of Trump’s critics consider a stretch brings him down, then we can expect more dubious prosecutions of politicians in both parties,” Ramesh Ponnuru, the editor of National Review, wrote in The Washington Post over the weekend. “District attorneys in deep-red jurisdictions can be just as creative as those in New York. Republican voters may grow more adamant about demanding it. They could decide that nobody really cares about the civic norms that once inhibited abusive prosecutions—an argument that Bragg has just made more persuasive.”

It’s impossible to say whether this is an “abusive prosecution” until we see the indictment and the evidence, so I’ll let that go for the time being. It’s still worth bringing up two important points here. One is that neither this prosecution nor any other can really “bring down” Trump. The Constitution does not ban Americans from running for president if they have been convicted of a crime or even if they are imprisoned for committing one. Eugene Debs, the early twentieth-century socialist leader, famously ran for president in 1920 while incarcerated for violating the Sedition Act of 1918 by denouncing America’s involvement in World War I. Trump could be convicted and still run for president no matter the sentence; there is ample reason to believe that a large portion of his followers would still not abandon him. After all, they think it’s all a witch hunt.

The other is that “Republican voters may grow more adamant about demanding something” is no longer an effective deterrent for anyone else in the American political system to make decisions. This is the same political party that, as an institution, formally defined the events of January 6 as “legitimate political discourse.” And there is no one in the United States less entitled to such a deferential norm than Donald Trump, who spent the 2016 campaign threatening to jail his opponent if he won, pressured the Justice Department to lock up his rivals throughout his time in office, and responded to losing the 2020 election by staging a coup attempt that left multiple people dead.

Ankush Khardori, a former federal prosecutor and TNR contributor, wrote an op-ed in The New York Times over the weekend that was similarly critical of the Trump indictment on more generalized grounds. He argued that if Bragg’s prosecution of Trump was perceived as lawless or illegitimate, it might encourage red-state prosecutors to pursue similar charges against Democratic candidates. That wouldn’t affect Delaware native Joe Biden, Khardori noted, but it could affect future candidates from red or purple states.

That is a fair prediction; future Democratic presidential candidates may have to trust in the good faith of jurors to protect them from prosecutorial misconduct. Unfortunately, Khardori’s hypothetical scenario was not quite persuasive. “Every president travels throughout the country campaigning, fund-raising and making stops for official business,” he wrote. “Say a candidate instructs the motorcade to speed to an event and it results in a deadly car accident or he directs organizers to let people into a venue that is over capacity and someone loses his or her life, crushed in the crowd. Are we later going to see an investigation and prosecution for involuntary manslaughter?”

I am going to go out on a limb here and say that I’m OK with hypothetically prosecuting presidential candidates if they mow down pedestrians with their motorcade. I think the alternative proposition here—that a candidate for high office could run over one of my loved ones and get away with it—is actually more horrifying to consider. I think this hypothetical scenario gets right to the heart of the matter: Should people really be held to a different legal standard than everyone else just because they are running for office? We’re not talking about the Justice Department’s traditional norm of pausing indictments and investigations to avoid interfering with ongoing elections; we’re talking about recognizing a broader form of personal immunity for presidents, former presidents, and would-be presidents.

There is no parallel for this anywhere else in the American political system. State and federal prosecutors bring charges against elected officials and candidates for office on a regular basis. At least nine state governors have been convicted of crimes ranging from bribery to extortion since 2000. (A tenth, Virginia’s Bob McDonnell, was later freed by the Supreme Court.) Twenty sitting members of Congress were tried and convicted over the same time span. Former Speaker of the House Dennis Hastert, who was once third in line for the presidency, was even prosecuted in 2016 for making illegal payments to cover up sexual abuse of minors before he entered political life. How proximate should one be to the Oval Office before they can’t be prosecuted for their crimes?

The Constitution speaks only once about legal immunity for any kind of public official. The Speech or Debate Clause states that members of Congress “shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.” This protection is believed to stem from instances where medieval English kings infringed upon Parliament’s liberties and privileges without consequence, most famously when Charles I stormed the House of Commons on the eve of the English Civil War.

No such immunity clause exists for presidents, or for lower-ranking members of the executive branch, or even for federal judges. The Justice Department policy against indicting a sitting president is more practical than constitutional, and even then it is dubious. Even the carve-out for lawmakers is narrow: It excludes a wide variety of crimes from immunity and only applies in certain circumstances related to their official duties. A member of Congress cannot invoke the clause after shooting someone on Capitol Hill in broad daylight or committing insider trading with knowledge they obtained through official channels.

We’ll know more about the merits of the case against Trump when the indictment is unsealed on Tuesday. It may be that Bragg’s prosecution turns out to be hard to defend; as I’ve written previously, based on the scant information available about the legal theories that seemed to be in play, it may be anything but a slam-dunk. His evidence could be flimsy, his witnesses may be unreliable, and his legal theories may be incomprehensible. On the other hand, he might also be bringing a bulletproof case. We’ll find out later this week. Until then, we have just a simple basic principle to fall back upon: that no person, no matter how wealthy or powerful, is truly above the law.

This article has been updated.