The indictment of former President Donald Trump by the Manhattan district attorney’s office on criminal charges stemming from an alleged hush-money payment to an adult-film performer is the latest teachable moment for educators, even if there is some evidence they aren’t eager to jump on it.
But the first criminal indictment involving a former president has scholars debating the larger implications of the precedent being set, questions that could easily come up in classrooms.
Is it really true that no U.S. president has faced criminal indictment before?
That is true, though historians have been quick to note that a sitting president has been arrested before. That was President Ulysses S. Grant, who was speeding in his horse-drawn carriage on the streets of Washington when a local police officer stopped him.
“Do you think, officer, that I was violating the speed laws?” said Grant, who had been warned by the same officer, William Henry West, the day before about racing his carriage, according to an account in the Washington Evening Star cited by Smithsonian Magazine.
West replied that Grant was speeding. “I am very sorry, Mr. President, to have to do it, for you are the chief of the nation, and I am nothing but a policeman, but duty is duty, sir, and I will have to place you under arrest.”
Grant went with West to the police station, asking the officer about his Civil War experience (West had fought with an all-Black Union regiment), and promised him there would be no repercussions for carrying out the arrest of the president. Grant paid $20 in collateral, then failed to appear in court and forfeited the amount, according to Smithsonian.
Haven’t some presidents and vice presidents faced legal troubles during and after office?
Yes. President Andrew Johnson was accused of violating a law requiring him to get Senate consent to replace his secretary of war. He was impeached by the House of Representatives but acquitted by the Senate. President Richard M. Nixon, a Republican, faced possible prosecution for crimes related to the Watergate scandal after he had dodged impeachment by resigning in 1974 but was issued a blanket pardon by his successor, President Gerald R. Ford.
Nixon’s first vice president, Spiro T. Agnew, faced an investigation in 1973 by a Baltimore grand jury into allegations that he solicited bribes while a county executive and governor of Maryland in the 1960s. He delivered a speech declaring, “I will not resign if indicted! I will not resign if indicted!” But under pressure from the White House, Agnew resigned as part of a plea bargain agreement on tax evasion charges. He received three years probation and a $10,000 fine.
President Bill Clinton, a Democrat, was impeached in 1998 on charges of lying under oath and obstruction of justice stemming from his affair with Monica Lewinsky, but was acquitted by the Senate. Clinton agreed to a deal with the Whitewater special prosecutors on his last full day in office by admitting false testimony under oath. He gave up his law license for five years and paid a fine.
In a much earlier era, former Vice President Aaron Burr was indicted on treason charges in a plot to detach Western states and territories from the Union. He was acquitted in an 1807 trial. The Burr affair was discussed at length in a 2020 U.S. Supreme Court decision in which President Trump, a Republican, was seeking to block enforcement of a subpoena from the Manhattan district attorney’s office. Writing for a high court majority that ruled a sitting president was not exempt from a state criminal subpoena, Chief Justice John G. Roberts Jr. noted that the trial judge in Burr’s case upheld a subpoena directed at President Thomas Jefferson, who was believed to be orchestrating the prosecution of his political rival from afar.
The opinions in that case, Trump v. Vance, included references that seem relevant today. Justice Samuel A. Alito Jr. noted in a dissent that the Manhattan district attorney’s office had not clearly said it would not charge the then-sitting Trump.
“If a sitting president were charged in [Manhattan], would he be arrested and fingerprinted?” Alito asked. “He would presumably be required to appear for arraignment in criminal court, where the judge would set the conditions for his release. Could he be sent to Rikers Island or be required to post bail?”
Alito referred to Federalist Paper No. 69, written by Alexander Hamilton, who said that a president may “be impeached, tried, and, upon conviction … would afterwards be liable to prosecution and punishment in the ordinary course of law.”
Trump is a former president now facing criminal indictment. What do legal scholars think of that?
Many suggest that this situation is exactly what the founders expected, that even a former president was not above the law.
“The key here is that both presidents and former presidents are subject to the rule of law,” Meena Bose, the executive dean of Hofstra University’s Kalikow School of Government and the director of a presidential history project there, said in an interview. “The political ramifications cannot guide the legal process.”
Laurence Tribe, a Harvard Law School professor and former adviser to President Barack Obama, told The Washington Post that “It’s the failure to indict Mr. Trump simply because he was once the president that would say we were well on the way to becoming a banana republic.”
But other scholars say it sets a dangerous precedent that could allow, say, a local prosecutor in Texas to launch a criminal case against a president for failing to secure the border.
“Whether the indictment is warranted or not, it crosses a huge line in American politics and American legal history,” said Jack L. Goldsmith, a Harvard Law professor and former top Justice Department official under President George W. Bush.
Would the indictment, or a conviction, bar Trump from his announced run for the presidency?
Scholars seem to agree that the answer is no. While the Constitution bars officials who have been impeached and convicted of “high crimes and misdemeanors” from further office, Trump was acquitted in two impeachments.
In 2016, former Texas Gov. Rick Perry unsuccessfully sought the Republican presidential nomination (his second attempt) despite being under indictment on state charges of abuse of power. The charges were dismissed after Perry dropped out of the race.
In 1920, Socialist Party nominee Eugene V. Debs ran for president while he was in prison for a conviction under the Espionage Act of 1917 for a rabble-rousing speech against the draft for World War I.
Bose, of Hofstra, said the Manhattan case is undoubtedly a “teachable moment” in schools, one of many that emanate from the presidency and now post-presidency of Trump.
“There’s a legal process and a political process that is unfolding,” she said. “It’s challenging to teach about events as they’re progressing.”
