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Donald Scarinci, founding partner of Scarinci Hollenbeck. (Photo: Donald Scarinci.)

Scarinci: Trump Is Not the First Ex-President to Clash with Law Enforcement

By Donald Scarinci, November 21 2022 12:01 am

While there is some authority and public policy support that incumbent Presidents should not face indictment while in office, there is little to protect a President when they leave office. 

In our country’s more than 200-year history, no president has ever been indicted while serving in the White House or after leaving office. However, there have been criminal investigations. In fact, this is the third time in the past 50 years that Americans have had to contemplate what should happen when a former president potentially breaks the law. 

President Nixon Received Pardon

President Richard Nixon’s involvement in the Watergate break-in and its subsequent cover-up triggered Congressional hearings and subsequent impeachment proceedings. The Watergate scandal resulted in 69 government officials being charged, with Nixon named an unindicted co-conspirator by a grand jury. 

Nixon was never criminally charged, largely due to a Department of Justice (DOJ) memorandum concluding that the U.S. Constitution mandates recognition of presidential immunity from indictment and criminal prosecution while in office. “[T]he President is the symbolic head of the Nation,” the memo explained. “To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.” The DOJ reached the same conclusion in 2000 in response to investigations into the conduct of then President Bill Clinton.

Even after Nixon’s resignation, the prospect of criminal charges remained. But in 1974, President Gerald Ford pardoned Nixon for any crimes that he might have committed against the United States as president, including those related to the Watergate scandal. While controversial at the time, critics now largely acknowledge that Ford’s decision was in the best interest of the country. In explaining his rationale to Congress, President Ford stated: “I was absolutely convinced then as I am now that if we had had [an] indictment, a trial, a conviction, and anything else that transpired after this that the attention of the President, the Congress and the American people would have been diverted from the problems that we have to solve. And that was the principal reason for my granting of the pardon.”

Ford reportedly took solace in the Supreme Court’s decision in Burdick v. United States, in which the Court held that a pardon carried an “imputation of guilt” and accepting a pardon was “an admission of guilt.” Thus, by accepting the pardon, Nixon was implicitly acknowledging his culpability. 

President Clinton Was Never Indicted

Bill Clinton also faced legal troubles while serving as president and after leaving office. In 1994, Paula Jones filed a lawsuit accusing Clinton of sexual harassment when he was governor of Arkansas. Separately, Ken Starr was appointed as special counsel to investigate Clinton’s actions in connection with a failed land development called Whitewater, which eventually revealed Clinton’s sexual relationship with Monica Lewinsky. It resulted in Clinton providing false testimony about the affair before a grand jury.  

The House of Representatives impeached Clinton for lying under oath and for obstruction of justice, but he was acquitted in the Senate. He avoided indictment when he reached an immunity deal with prosecutor Robert W. Ray. Under the agreement, which was finalized on Clinton’s final day in office, he had to admit that he lied under oath. “I tried to walk a fine line between acting lawfully and testifying falsely, but I now recognize that I did not fully accomplish this goal and that certain of my responses to questions about Ms. Lewinsky were false,” Clinton said in a statement. “I hope my actions today will bring closure and finality to these matters.”

Once President Clinton left office, he faced additional scrutiny when U.S. Attorney for the Southern District of New York Mary Jo White launched a criminal investigation into the circumstances of Clinton’s pardon of commodities trader Marc Rich. Two grand juries were convened to investigate whether the pardons were issued in exchange for donations to Democratic organizations, but the probe ultimately ended in 2005 without criminal charges.  

President Trump Now Faces Uncertainty

The potential criminal prosecution of former President Trump has reignited debate about whether a former president can (or should) face charges.  Given the growing political polarization in the United States, a decision either way will likely fuel further discord. The debate is also more complex because Trump is being investigated for actions he took while serving as president, as well as conduct that occurred before and after his presidency. 

Should prosecutors conclude that there is sufficient evidence to sustain a conviction, the next question is whether public policy concerns warrant foregoing prosecution. On one hand, Americans should feel confident that no one is above the law, even a former president. On the other hand, criminalizing even tangentially political conduct is a slippery slope that is likely to further divide the country, particularly with respect to charges related to actions taken while in office.

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