It's Rightly Hard To Prosecute the President
I Know It's Frustrating That Politicians Seem Above the Law, But It Is For the Best
There is an ongoing discussion about what to do about the various laws that President Trump allegedly violated as President. In liberal discourse spaces, you will find no shortage of people bringing up this or that statute that Trump allegedly violated, and fantasizing about him being frog-marched off to prison.
That may, of course, still happen. There are certainly numerous active investigations. But I don’t think enough people appreciate why it is that prosecutors are so cautious in this area, and what the dangers are if a prosecution were to be actually commenced.
The best evidence I can point you to is to look to other countries. For instance, in Peru, almost every recent former President has been prosecuted. It’s not, of course, that prosecutors lacked material— a lot of the charges seemed to have some merit. But on the other hand, it’s also not like Peru is a uniquely corrupt country. Rather, it is a country with rather typical levels of corruption for the developing world and Latin America— worse than some places, better than others. Yet every former President gets prosecuted. What is going on?
What’s going on is that the prosecution of Presidents is an intrinsically political activity. That may seem weird at first glance. Let’s say whoever the 47th President turns out to be, simply hacks into a cryptocurrency account and steals a billion dollars. There’s no doubt about the 47th President’s guilt. Why would that be intrinsically political, as long as guilt were proven beyond a reasonable doubt?
The answer is political polarization. We all live in epistemic bubbles, and rest assured, the supporters of POTUS 47 will find some fig leaf theory to assert that their President is being railroaded and is innocent. Don’t believe me? I lived through the Clinton impeachment. Bill Clinton had one excellent argument— that the crime alleged wasn’t serious enough to justify his removal from office. And he and his supporters made that argument. But they also made a bunch of obviously terrible arguments about how what he did wasn’t technically a lie (I can go into the gory details if you want, but no, Bill Clinton affirmatively and brazenly lied, not merely withheld information, in both his deposition and grand jury testimony) and wasn’t material to the case and thus not perjury (also preposterous, especially with respect to the grand jury testimony where the central issue in the case was whether he told the truth in his earlier testimony, but also pretty preposterous with respect to the deposition as well).
The point is, part of how polarization works is that you don’t simply defend your guy. You adopt whatever epistemically questionable BS is necessary to defend your guy. You basically do the same thing that juries and the public did when OJ Simpson and R Kelly were on trial the first time around— pretend that obvious evidence of their guilt doesn’t really prove their guilt. Humans are really good at this.
And the apex of polarization is the President. The President personifies the party he belongs to, and personifies evil to the opposing party. We have seen this with every recent President. Even people who would be intellectually honest to, say, admit that a member of Congress or a Governor of their own party engaged in serious wrongdoing will do everything possible not to do that with the President. Polarization is at its zenith in this situation.
And a result is, a successful effort to prosecute a President in a polarized society will never be accepted by the President’s own supporters. They will want revenge. And they will look for some reason to prosecute the next President. That is exactly what has happened in Peru— once you create a norm that you are going to prosecute and imprison ex-Presidents, there’s an effort to go after each President and bring a prosecution.
And in the United States, this is intensified by the fact that we have such a multiplicity of federal laws. As Harvey Silverglate said, we all probably commit three felonies a day. In the area of campaign finance alone, a Byzantine structure of laws governs even minute details of the actions of candidates. It’s thus really easy to look for and find something to prosecute a former President for if you were determined to do so.
But, you might ask, wasn’t President Trump egregious? Didn’t he do things that no other President did? And sure, in principle, yes he did. But that misunderstands the issue— the issue isn’t whether President Trump’s conduct was substantively worse than predecessors, but whether a prosecution of President Trump will be perceived as a partisan escalation by his supporters, meriting a response against Democratic Presidents. And what do you think the answer to that is?
This argument meets great resistance, I have found. It is drummed into us at an early age that no person is above the law, and often the Watergate scandal and President Nixon’s resignation is taught as an example of our system working. But it’s worth noting that not only was our country far less polarized (at the time of the Watergate investigation, there were conservative Democrats and liberal Republicans), but the Watergate scandal could have easily itself turned into a partisan tit-for-tat had it not been for two actions that cooled the fires.
First, Republican Senators like Barry Goldwater went to Nixon and convinced him to resign. They told him they didn’t have the votes to defend him in the Senate. One thing that is missed in this oft-told story is it could have been a bluff— there was never any on-the-record vote count as to whether 2/3rds of the Senate supported his conviction. But even if it was not a bluff, you have to consider what the GOP Senators’ motive was in going to Nixon— they understood that had the Senate actually removed Nixon from office, there would be an enormous backlash from Republican base voters, who would have advocated total war against the Democrats. Because Nixon’s resignation played out as a voluntary act to save the country, that backlash did not happen.
But it still would have had Nixon been prosecuted and imprisoned. And that’s why President Ford’s pardon of Nixon was crucial to the entire enterprise. This was a very unpopular act, but Ford understood his party’s base well and knew that an actual prosecution and conviction of Nixon would have opened the floodgates towards future prosecutions of Presidents.
All of this offends the sensibilities of a lot of us. In one sense, Nixon got away with serious crimes. (Although, you should note that Presidents care a lot about the judgments of history and Nixon has fared poorly in that department because of his actions.) But you need to consider whether imprisoning politicians who commit crimes is as important to you as the stability of the country. Our culture romanticizes “let justice be done or the heavens fall”, but personally, I wouldn’t actually want the heavens to fall on us just to throw someone in prison. The reality is that the legal system has wisely stayed away from the prosecution of former Presidents. The quasi-legal immunity that this creates kind of sucks, but it’s better than the alternative.