A New York grand jury is poised to indict former president Donald Trump for lying about paying off a porn star. Trump’s critics, who have pinned their hopes on criminal probes going back to alleged Russian influence in the 2016 presidential election, may welcome the unprecedented prosecution of a former president. But the prosecution may prove to be a mistake. It faces severe legal problems and may distract from more important investigations into the Jan. 6, 2021, attack on the US Capitol.
The indictment breaks one of the oldest norms in American politics. No sitting or former president has ever undergone criminal prosecution. Not only have former presidents usually faded away into the background, our legal system has generally refused to punish them for any criminal acts. Presidents enjoy “absolute immunity” from any private damages suits, for example, so that they can make difficult decisions without fear of future liability. Presidents must have “the maximum ability to deal fearlessly and impartially with the duties of [their] office,” the Supreme Court observed in 1982 because the president “must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.”
To be sure, former presidents return to civilian life subject to the rule of law as any other American. Indeed, the Framers limited impeachment solely to removal from office because they expected that prosecutors could hold presidents accountable for any criminal acts. Nevertheless, every federal, state, and local prosecutor in American history had agreed that the public interest was best served by not exercising this power. Prosecutors also have never indicted a serious major party candidate for the presidency. Instead, they were content to let the American people, through elections and history itself, render judgment on chief executives.
Trump’s opponents clearly believe that his unique threat to democracy may justify breaking traditional norms. But before popping the champagne corks, liberals should ask themselves whether they can live in this new world.
First, our legal system would allow partisan, elected state prosecutors to dramatically influence an election by investigating and prosecuting candidates from the opposing political party. Manhattan District Attorney Alvin Bragg ran as a Democrat who had already investigated Trump before, even as he refuses to prosecute a long list of felonies in New York. Under this precedent, an elected Republican district attorney from, say, Florida or Texas could investigate the Biden family and even President Biden himself for corruptly receiving money from Chinese companies. And there is no limiting principle if Bragg succeeds. What will stop Republican or Democratic prosecutors from investigating their rivals for Senate, the US House, and Cabinet agencies?
Second, our legal system would allow minor charges based on dubious legal theories to derail major party candidates and prosecute former office holders. Bragg called a grand jury to investigate Trump for a $130,000 hush money payment to Stephanie Clifford (aka Stormy Daniels) in exchange for a nondisclosure agreement. Bragg is not investigating Trump for paying Clifford for her silence but for trying to hide the payoff as legal services performed by his former lawyer Michael Cohen. Under New York law, such fiddling with the corporate books is a misdemeanor punishable by less than a year of jail time. It is as if Ken Starr tried to indict President Bill Clinton for speeding tickets.
To make matters worse, Bragg might have run out of time — New York prosecutors generally have two years to bring a misdemeanor case, a clock that ran out in 2018. To elevate false accounting into a serious felony, Bragg has to engage in legal acrobatics of the first order. According to press reports, Bragg plans to claim that Trump committed a felony because he falsified his business records to conceal another crime. Since the payoff itself doesn’t violate New York law, Bragg reportedly will claim that the $130,000 amounted to an unreported campaign contribution. The DA will have a hard time showing that Trump paid hush money to cover up a crime, rather than just to hide his affair from his family. It is as if Starr prosecuted Clinton for violating campaign laws by securing Monica Lewinsky’s silence about their tryst.
These legal quandaries probably will go up on appeal before any real trial can begin. Once in the courtroom, prosecutors will face even more challenges. They will have to rely on the testimony of Michael Cohen, who pleaded guilty in 2018 to campaign finance crimes for making the payment to Clifford. After looking at the same evidence and legal problems, federal prosecutors in New York decided to drop the Trump investigation. Bragg will face allegations both inside and outside the courtroom that his political allegiances motivate the case even as he declared upon taking office that he would seek no jail time for many cases of robbery, assault, and gun possession.
But the consequences of convicting Trump may prove even worse. A conviction would set the precedent of using criminal charges, any charges, to pursue a former president. Charging a former president should arise only for serious abuses of power. And Trump possibly supplied fuel for charges in bulk. He may have pressured state officials, such as the Georgia secretary of state, to alter vote counts. He may have coerced then-Vice President Mike Pence to forestall or change the electoral vote count. He may have even conspired in the attack on the Capitol to stop the official confirmation of Biden’s victory. If the facts indeed link Trump to this conspiracy, federal prosecutors should bring charges and a jury should convict him.
But by seeking to arrest and prosecute Trump for a squalid affair of sex and hush money, the DA will undermine these far more serious investigations. The Stormy Daniels case will distract the nation’s attention while also painting these other probes with the brush of Bragg’s partisan motivations, legal contortions, and weak evidence. If a former president is to face a criminal jury for the first time, it should be for seeking to overturn a free and fair election, not for shenanigans about sex and accounting.
John Yoo is a law professor at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution.