JURIST Guest Columnist John Felipe Acevedo, visiting lecturer of Law at the University of Alabama School of Law, discusses the possibility of a former President facing criminal charges...
No current or former President of the United States has faced criminal charges after leaving office. Two Presidents, Richard Nixon and William Clinton, have come close and one Vice-President, Spiro Agnew, plead nolo contendere to charges on the day he left office. With ten ongoing federal and eight ongoing state criminal investigations into Donald Trump, his campaign, or businesses, it is possible, even likely, that he will be the first former President facing criminal prosecution. The Department of Justice has a decades-old prohibition against indicting a sitting President, so any prosecution would occur after Donald Trump leaves office.
So what criminal acts have previous presidents allegedly or actually engaged in—and what can this tell us about what may happen to Trump?
Although it is likely that Richard Nixon had no prior knowledge of the burglary and attempted bugging of the Democratic National Committee offices located in the Watergate complex, he became immersed in the ensuing cover up and likely obstructed justice in the process. In February of 1974 the House of Representatives authorized the Judiciary Committee to begin investigating if sufficient grounds existed for impeaching President Nixon. On August 9th he became the first President to resign from office. It was widely believed that upon leaving office Richard Nixon could be prosecuted for obstruction of justice for his role in the Watergate cover up.
Twenty-four years later, Bill Clinton was impeached for obstructing justice, lying under oath, and coaching a witness during the sexual harassment lawsuit filed by Paula Jones. In Clinton v. Jones, the Supreme Court held that a President can be held civilly liable for actions committed before they became president, so it is not hard to imagine that they would also be criminally liable. Two months after his acquittal by the Senate, Clinton was cited for contempt of court for lying during the proceedings and fined $90,000. In his final days in office, Clinton did agree to a five year suspension of his Arkansas law license and to pay a $25,000 fine for lying during a deposition for the Paula Jones investigation in exchange for a promise that no criminal charges would be filed against him.
The only high executive branch official to actually have been convicted of a crime after assuming office is Vice President Spiro Agnew, who plead guilty to one count of tax evasion. The charge stemmed from Agnew’s involvement in a construction kickback scheme during his governorship of Maryland, but the payments continued while he was Vice President. Agnew, like Presidents Nixon and Trump, asserted that he could not be charged with a criminal offence while in office. However, after negotiations, Vice President Agnew plead guilty in exchange for a fine and probation. His guilty plea thus established that an executive officer may be held criminally responsible for acts committed during office, but—since Agnew resigned the same day he plead guilty—left open the constitutional issue of whether a sitting executive could be charged while still in office.
The Nixon, Clinton, and Agnew scandals have established that a president can be held criminally liable for actions committed either before or during their term in office. However, this is only the start of the inquiry. The issues raised by such a prosecution will depend on whether the prosecution is conducted by state or federal prosecutors. If the prosecution is conducted under federal law, the outcome turns on the pardon power of the president and the applicability of any statute of limitations. If the prosecution is conducted under state law then the issue is the strain on federalism.
History suggests there are three pardon possibilities: Donald Trump pardons himself, he pardons all co-conspirators thereby removing all incentive for them to cooperate, or he resigns and President Mike Pence pardons him. The second scenario is the most likely because it is the least susceptible to challenge and does not rely on anyone other than President Trump himself.
We do not know if a President can pardon themselves because none of them have tried. Current legal opinions are divided on the issue, but forty years ago President Nixon was told by members of the Department of Justice that he could not pardon himself. Conversely, President Trump could resign and have Mike Pence pardon him upon assuming office, or Trump could bank on a Democratic successor pardoning him—an unlikely but not impossible scenario. Gerald Ford pardoned Richard Nixon shortly after assuming office in order to help the nation move beyond the Watergate scandal. However, President Trump seems very unlikely to resign his office.
A more likely scenario is that President Trump will use his Article II power to pardon anyone who is connected with the investigation, thereby removing any leverage federal prosecutors have to flip them against him. Bill Clinton was accused by many of doing exactly this when he issued 140 pardons on his final day in office. But in fact, none of the pardons issued had any direct link to Bill Clinton, although a few were tied to his brother-in-law Tony Rodham. Thus, although the presidential pardon power has been questioned it has never been challenged when used to cover up potential presidential crimes. A mass pardon by President Trump would be a constitutionally, if not politically, acceptable way of handling the federal investigations. However, none of these scenarios would prevent a state from prosecuting Donald Trump once he left office.
The statute of limitations may bar prosecution for any offences that occurred before or early in President Trump’s term of office—this issue becomes more important if he wins a second term in office. A 2000 Justice Department memorandum contemplated that the prohibition on indicting a sitting president would make it possible that the statute of limitations would prevent prosecution after the person left office. The memorandum reasoned that the risk was justified both to prevent a constitutional crisis that would accompany the indictment of a sitting president and because if the alleged crime was sufficiently severe, then impeachment would likely remove the person from office thus clearing the way for prosecution. The statute of limitations for obstruction of justice and the other crimes that have been alleged against President Trump are five years. Consequently, even if President Trump loses the 2020 election, the statute of limitations will likely have run unless charges are brought shortly after he leaves office.
In contrast, state district attorneys have no set policies against indicting a sitting president and could therefore indict at any time before the statute of limitations runs in their jurisdiction. Additionally, any federal pardon would not apply to state criminal liability. Of course, President Trump could request a delay in the trial until after he leaves office, but this would not stop the prosecution itself. If former President Trump is prosecuted under state laws the primary concern is one of federalism; the balance of power between the state and national governments.
The prosecution of a former president by a state would open the door for the future prosecution of other presidents by their opponents. Donald Trump’s situation is unique because of the wide ranging nature of his potential criminal liability, which extends from his business activities to his campaign, inauguration committee, and obstruction of justice during his presidency. Although Trump may be an unusual former president the normalization of prosecution of ex-executives would enable the states to threaten Presidents whom they disagree with so long as there is some activity that can be criminally investigated.
Ever since McColluch v. Maryland, the Supreme Court has worried about the ability of the states to directly oppose the legitimate functions of the federal government. Of course, the key difference is that if Donald Trump did commit felonies then his actions were obviously not legitimate governmental functions. Despite the danger of states prosecuting ex-presidents whom they do not like, this is the lesser evil as it can of course easily be avoided by presidents simply not engaging in criminal activities. The alternative—not prosecuting felonious former presidents—would place the president above the law and make the office closer to a king than the executive of a republic. It is a cornerstone of our criminal justice system that everyone is subject to the law.
John Felipe Acevedo received his JD from the USC Gould School of Law and his PhD in history from The University of Chicago. He publishes in the areas of criminal law, legal history, and defendant’s rights.
Suggested citation: John Felipe Acevedo, The People v. Donald J. Trump? An Inquiry into President Trump facing Criminal Charges, June 26, 2019, https://www.jurist.org/commentary/John-Acevedo-Trump-criminal-charges
This article was prepared for publication by Leanne Winkels, a JURIST Staff Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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