Can a Former President Be Indicted? A Historian Offers Perspective.

On June 8, 2023, it was announced former President Donald Trump became the first president in American history indicted for a felony after leaving office. Every media story used the word “unprecedented.” Although the indictment of former President Trump was, indeed, the first, I thought I would offer you some historical perspective.

I am a professional historian and not a lawyer. This article draws no conclusions about the validity of the pending charges against former President Trump. While his indictment was a historical moment, it’s worth considering that Trump was not the first former President who could have faced indictment for alleged felonies. In fact, under different circumstances, at least two other former presidents, John Tyler, and Richard Nixon, could have faced criminal charges.

Can a Former President Be Indicted? A Historian Offers Perspective.

John Tyler served as the 10th president of the United States from 1841 to 1845. Tyler is perhaps best known for his controversial decision to annex Texas, ultimately leading to the Mexican-American War. However, Tyler’s legacy is also tarnished by his later decision to join the Confederacy during the Civil War. A man who had sworn an oath to “…preserve, protect, and defend the Constitution” renounced our country and agreed to serve in the government of the enemy. It would be as if former President Hoover joined Hitler’s government. Under the law, Tyler could have been charged with treason and sentenced to death by hanging.

Following the unconditional surrender of the terrorist forces attempting to overthrow the country, some Americans advocated for the execution of the rebellion’s leaders. Generals Grant and Sherman, following the magnanimous example of President Lincoln, did not arrest the traitors. Significantly, neither the Democratic Johnson nor Republican Grant Departments of Justice opted to try any traitors for treason.

Tyler died before the end of the war. As a result, the possibility of his arrest and trial is hypothetical. As a former president who had renounced his ties to the United States and joined the Confederacy, Tyler was undeniably a controversial figure, despised by many patriotic Americans. After the war, no leader of the traitorous rebellion faced prosecution for treason. However, given his status as a former President, the Attorney General might have made Taylor an example. Therefore, if he had survived the war, Tyler could have faced criminal charges for his actions.

RICHARD NIXON

Richard Nixon is a more recent example of a former president who could have faced indictment under different circumstances. Nixon served as the 37th president of the United States from 1969 to 1974. However, his presidency was cut short by the Watergate scandal, which ultimately led to his resignation in 1974.

During Nixon’s Presidency, his Department of Justice issued an opinion stating that no person could not be arrested or face criminal charges while serving as President. Subsequent Attorneys General and Special Prosecutors have honored this opinion. As a result, when Special Counsel Robert Mueller issued his report on allegations of personal corruption during his investigation of Trump, he did not recommend the prosecution of the sitting President. The Mueller report identified ten separate potential acts of obstruction of justice by Trump.

IS THE NIXON DOCTRINE LEGAL?

No court has affirmed the Nixon Department of Justice’s opinion that a sitting President cannot face criminal charges. It is an opinion, not a law. Mueller could have asked a grand jury to indict President Trump. The Supreme Court would have had to rule on the legality of the indictment.

While Nixon was never indicted for his role in the sprawling Watergate scandal, ample evidence suggests that his arrest and indictment for numerous felonies, including obstruction of justice and abuse of power. Multiple aides and advisors close to Nixon were indicted and convicted for their involvement in the scandal.

Nixon’s own words would have convicted him. On the infamous Watergate tape, Mixon ordered a burglary at the Brookings Institution, a liberal think tank. The recordings clearly establish Nixon committing numerous acts of obstruction of justice; each one could have brought a felony indictment and conviction. Additional evidence suggested Nixon conspired to break tax laws,

Given this overwhelming evidence, it’s not difficult to imagine a scenario in which Nixon could have faced criminal charges for his role in the Watergate scandal. However, Gerald Ford granted Nixon an unconditional pardon. As a result, he saved Nixon from facing any legal consequences. Without the pardon, there is no doubt whatsoever that Richard Nixon would have been indicted,

Can a Former President Be Indicted? A Historian Offers Perspective.

Notably, John Tyler and Richard Nixon are not the only former presidents who could have faced indictment under different circumstances. For example, there have been allegations of personal wrongdoing and corruption during the presidencies of other presidents, such as Andrew Johnson and Bill Clinton.

ANDREW JOHNSON

President Andrew Johnson blatantly broke a dubious law, “The Tenure Of Office Act,” despite taking a sacred vow to ensure all laws were ‘faithfully executed.”

By intentionally breaking the law, Johnson was undeniably guilty. His intent was to get the constitutionality of the law tested in court. However that could have been done in a lawsuit rather than by breaking the actual law. Even his staunchest supporters made no argument to indicate Johnson was innocent of breaking the law. The question came down to a political matter.

BILL CLINTON

President Bill Clinton lied to a grand jury during the investigation into his extramarital affair with Monica Lewinsky. Congress impeached both as a consequence.

Being impeached, as Andrew Johnson and Bill Clinton were, is not the same as being indicted.

Impeachment is a political process, whereas indictment is a criminal process. Andrew Johnson and Bill Clinton could have faced criminal charges after their Presidencies in different circumstances.

GEORGE W. BUSH

Finally, some scholars suggest President George W. Bush committed a crime by authorizing warrantless wiretapping of American citizens. If their analysis is correct, at least in theory, Bush could have faced indictment after his term ended. It’s important to note that the actions taken by Bush are not uniformly regarded as illegal.

In conclusion, while Donald Trump may have been the first former President to be indicted, he is not the first former President who could have faced legal consequences for his actions. John Tyler and Richard Nixon are just two examples of former presidents who could have faced indictment under different circumstances. While it’s rare for a former president to face indictment, history has shown that it’s not impossible and that the actions of former presidents can be subject to legal scrutiny even after they leave office.