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Ex-President Trump on Trial

The Justice Department has never prosecuted a president after he leaves office. Kamala Harris wants to change that. What could go wrong?

Chip Somodevilla/Getty Images

It’s March 2021, two months since President Kamala Harris was sworn in as the forty-sixth president of the United States. The Senate has just confirmed her nominee for attorney general in a mostly party-line vote, after two moderate Republican senators voted to end a filibuster. In a phone call to the country’s new top federal law-enforcement official, Harris offers her congratulations on the victory, then a request: Start building a case to prosecute Donald Trump.

This is not as fanciful as it may sound. Harris is one of the handful of Democratic contenders who say they would allow or instruct the Justice Department to prosecute their predecessor if he is defeated in next fall’s election. It would be an extraordinary step for the American experiment: No president has ever been prosecuted for a crime while in office or after leaving it. Given Trump’s behavior in office, some might find it more than warranted. But it would be a constitutional minefield, and could have unintended consequences for American democracy.

There’s no guarantee that the Democratic nominee will defeat Trump next fall, but some candidates are already discussing whether they would prosecute him if they win. Harris, the California senator, said last week that her administration would likely pursue charges against Trump based on the Mueller report’s obstruction findings. “I believe that they would have no choice and that they should, yes,” she told NPR. South Bend Mayor Pete Buttigieg told The Atlantic, “I would want any credible allegation of criminal behavior to be investigated to the fullest.”

If a Democratic president pursues criminal charges against Trump, what would that investigation look like? His efforts to obstruct the Russia investigation would be the most obvious target. The second volume of special counsel Robert Mueller’s 448-page report laid out in detail how Trump repeatedly tried to undermine and shut down the investigation for almost two years. Mueller declined to make a traditional prosecutorial decision on whether to charge Trump himself, citing a Justice Department policy that forbids charging a sitting president, and the constitutional questions that such an action would raise. Neither of those hurdles would apply after Trump leaves office, however.

Though Mueller’s investigation is over, more than a dozen state and federal inquiries into the president and his affairs continue apace. Two states and three U.S. attorney’s offices are looking into the Trump 2016 inaugural committee and whether any foreign donors illegally contributed to it. The New York attorney general’s office is probing the Donald J. Trump Foundation, which it described as “functioning as little more than a checkbook to serve Mr. Trump’s business and political interests” instead of a nonprofit charity. The Trump Organization, the president’s business conglomerate, is under scrutiny for insurance fraud. And Trump himself effectively became an unindicted co-conspirator last year after Michael Cohen pleaded guilty to two campaign-finance charges related to the Stephanie Clifford (professionally known as “Stormy Daniels”) payments, which Cohen said he made at Trump’s direction.

Perhaps the biggest question of all is what’s in Trump’s tax returns. The president became the first major presidential candidate to refuse to release his returns in 2015, falsely claiming that he couldn’t disclose them because he was under audit. Since then, he’s gone to extraordinary lengths to keep those returns from the public, and the Treasury Department is now openly defying a congressional request under black-letter federal law for access to them. The fight over his returns could turn out to be a mountain over a molehill; Trump may simply want to hide that he’s not worth as much as people think.

But the balance of probability suggests otherwise. In an October 2018 investigation, The New York Times reported that Trump stayed afloat in the early ’90s when his father transferred more than $400 million to him through what the paper described as “suspect tax schemes.” In May, the Times also reported that the president claimed more than a billion dollars in losses to the IRS during the same period, when he “appears to have lost more money than nearly any other individual American taxpayer.” How he fared in the 2000s and 2010s is still unknown. The IRS has lost its edge when it comes to investigating wealthy Americans, but a Democratic president could revitalize it, which may have adverse consequences for Trump in the long run.

Prosecuting a president after he leaves office would break new ground, to say the least. It has never happened before. Thanks to a sweeping pardon from President Gerald Ford, Richard Nixon faced no criminal consequences from Watergate after his resignation. Ken Starr’s office considered the possibility of indicting Bill Clinton in the late ’90s, but ultimately decided against it. And while both ex-presidents wrestled with disbarment and serious legal debts in post-presidential life, Trump lacks a law license and is far wealthier than either of his predecessors.

Of Trump’s 43 predecessors, Nixon came closest to facing charges after he left office. A month passed between his resignation and Ford’s pardon, during which time the Watergate special prosecutor’s office weighed whether to charge him. Nixon had already been named an unindicted co-conspirator in the case against his top aides even before he turned over the White House tapes. Leon Jaworski, who became the Watergate special prosecutor after the Saturday Night Massacre, said in 1977 that he would have faced a serious constitutional dilemma if Ford had never pardoned Nixon.

“There is the First Amendment and the public’s right to know on the one hand—there is former President Nixon’s constitutional right to a fair trial under the Sixth and other amendments on the other hand,” he said during a Fordham Law Review symposium. “Had the unprecedented news media coverage of the events that transpired so influenced and subjugated the minds of prospective jurors that a fair trial could not have been accorded Nixon for a year, for two years—three years? And how does one accord a fair trial, under a presumption of innocence, to a defendant sitting in the dock as a resigned president who left office under the pressure of impeachment proceedings charging criminal wrongdoing?”

Prosecuting Trump would raise thorny questions about American democracy as well. As I noted last year, one of the traits that distinguishes a stable democracy from its unstable counterparts is that political opponents aren’t jailed by the faction in power. That’s why Trump’s “lock her up!” chants directed at Hillary Clinton, coupled with his desire to turn the Justice Department into a wing of the White House, has drawn so much alarm over the last three years. “Nothing good will come of a system in which the chief executive may direct the full force of the state against those he believes have wronged him,” Lawfare’s Quinta Jurecic wrote last week on this quandary.

At what point does the norm against prosecuting one’s political opponents cause harm to the rule of law, rather than preserving it? Trump is testing those civic fences with the zeal of a velociraptor. And yet, by working to undermine that norm, he may ultimately become the first victim of its absence.