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    Does Bringing Criminal Charges Against a Former President Break a Foundational American Rule?

    Politics 4 Mins Read
    President Trump

    As first appeared in Florida Daily

    By Aron Solomon

    It will be far more than a footnote in U.S. presidential history that former President Donald J. Trump has been charged in several criminal cases.

    As of this week, here is a summary of the current charges:

    In New York, former President Trump faces 34 felony counts of falsifying business records in the first degree.

    He has been charged with 31 counts of willful retention of classified documents, one count of conspiracy to obstruct justice, and one count of withholding a document or record.

    He has been charged with four felony counts of obstruction under 18 U.S.C. § 1512 and 18 U.S.C. § 1519, and two felony counts of false statements under 18 U.S.C. § 1001.

    He has been indicted in Washington, DC, in the Jan. 6th case on four felony counts for attempting to overturn the 2020 election.

    And, finally, former President Trump will turn himself in this week in Georgia on charges related to his alleged involvement in a “criminal enterprise” to overturn the 2020 election.

    In this latest case, it is alleged that Trump and 18 allies, including Rudy Giuliani and Mark Meadows, committed 13 crimes related to his efforts to overturn the election.

    As of today, Donald J. Trump has pleaded not guilty to all charges.

    While no other former U.S. president has ever been indicted or faced criminal charges, there have been instances where previous presidents came close to legal troubles. Here are some examples:

    1. Harry Truman (1945-1953): Truman’s presidency was marred by scandals, including allegations of corruption and bribery. However, no criminal charges were brought against him.

    2. Dwight Eisenhower (1953-1961): Eisenhower faced accusations of financial impropriety and political scandals during his presidency. However, he was not indicted or charged with any crimes.

    3. John F. Kennedy (1961-1963): Kennedy’s presidency was also marked by scandals, including allegations of extramarital affairs and connections to organized crime. However, no criminal charges were ever brought against him.

    4. Lyndon B. Johnson (1963-1969): Johnson faced allegations of corruption and financial impropriety during his presidency. However, he was not indicted or charged with any crimes.

    5. Richard Nixon (1969-1974): The Watergate scandal overshadowed Nixon’s presidency, ultimately leading to his resignation. While not indicted while in office, he faced the threat of impeachment and potential criminal charges. However, he was pardoned by his successor, President Gerald Ford.

    Part of the reason no other former president has faced criminal charges comes from a 240-year tradition in American politics of granting post-term immunity from prosecution to those who leave the White House. An excellent 2020 article in The Atlantic explored the tradition of granting post-term immunity from prosecution to those who leave the White House. While this article argued that granting immunity now comes at too high a cost, the reason for the tradition “is because Americans don’t like the idea of criminalizing politics.”

    Where that line is drawn between politics and criminal offenses is not only a legal question, but a historical one, which is why there were instances in the past, such as the Office of the Independent Counsel deciding not to indict former President Bill Clinton, that might have resulted in criminal charges today.

    As for the current legal issues former President Trump is fighting, Florida lawyer John Lawlor observes that the often optimistic timelines we see and hear may not be realistic. “From a legal perspective, any case brought against a former U.S. President will be complex and nuanced. It would be unrealistic to expect that these cases can even come close to following normal time guidelines, especially in the unique situation where the former President charged is again running for office.”

    About Aron Solomon

    A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor-in-Chief for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, YouTube, NewsBreak, and many other leading publications.

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