There is No Norm against Prosecuting Former Presidents in the United States. By Matt Tait

www.pwnallthethings.com

There is No Norm against Prosecuting Former Presidents in the United States. By Matt Tait

Matt Tait

24 - 30 minutes

Judge

In the past week, many supporters of former President Trump have made an argument in his defense that his indictment violates the norm against prosecuting former presidents.

There is no such norm, and there never was.

Norms have gotten a bit of a bad reputation in recent years, and are not especially well understood by the public as a whole. So I want to start with a quick exposition of what norms are. This exposition is important because, among other things, there are actually a few subtly different claims being made for the proposition that there is a norm against prosecuting a former president: One is that it is a fundamental norm rooted in the rule-of-law; another is that it is an emergent norm rooted in historical practice, either since the beginning of the Republic, or in some alternative formulations, a modern emergent norm that has been U.S. practice since the pardon of Nixon.

All of these claims are wrong, but it’s nevertheless important to distinguish them early, because they’re wrong for different reasons.

So we’re going to need to start at the top: what is a norm?

At a high-level, norms are just widely accepted expectations about what constitutes appropriate behavior by various actors within a system. International norms, for example, focus on how countries should behave with respect to each other; legal norms relate to how actors should behave within a legal system; social norms cover how individuals should behave with respect to each other in a society; and so on.

Norms subdivide into fundamental norms, derived norms and emergent norms.

Fundamental norms are those which are structural to the system itself, and which are necessary for the system to function. Emergent norms are those which became established simply through longstanding historical practice. Derived norms are those which are logically derived from more fundamental principles, and which act as helpful “short-cuts” to avoid needing to continuously derive concepts from first principles.

That’s all very abstract, so let’s just give a couple of examples to nail it down before we go further, and to make the point that norms are not all equal, nor equally formalized or enforced.

In the legal system, the right to a fair trial is a fundamental norm for the rule-of-law, requiring that criminal trials are fair, impartial, and consistent. This norm is structural because fair trials ensure that state penalties are established on the basis of law, and are not arbitrary. It is possible to have a society that does not have fair trials: Ancient societies, and modern dictatorships all exist without them. But these societies are not rule-of-law societies.

The right to a fair trial might be a norm, but that doesn’t mean it has no teeth. In the United States, this norm is given constitutional weight through the Fifth and Sixth Amendments. But the norm is not unique to the American legal system; other rule-of-law systems establish the same principle in their own way. The European Convention on Human Rights, for example, formalizes this norm in Article 47; Germany codifies it through Article 103 of the German Basic Law; Australia encodes it through Section 21 of their Human Rights Act 2004; South Korea through Article 27 of their Constitution, and so on.

Derived norms, by contrast, are rules that are logically derived from fundamental norms. The right to an attorney, for example, is a not a fundamental norm; but a derived norm, coming from the right to a fair trial. The logic here is that without access to an attorney to properly interpret and argue the law on your behalf, your access to the criminal justice system would be unfairly abridged, undermining your right to a fair trial. Similarly, attorney-client privilege is a derived norm that traces its logic through the right to an attorney, and ultimately back to the right to a fair trial.

Emergent (or historical) norms are different. These are established by consistent historical practice. Emergent norms are not always unimportant, unenforceable, or unwritten. One example would be customary international law, and the laws of armed conflict. Although these are now codified through formal instruments such as the Geneva Conventions, they are much older, and, for the most part, codify emergent norms that, in some instances, existed for hundreds of years prior to World War 2; which were abrogated during that war; and which the victorious powers sought to codify in its aftermath having experienced the horrors caused by their abrogation. The prohibition against poisoning as a form of warfare, for example, dates all the way back to ancient times, when militaries generally avoided poisoning wells for pragmatic reasons because it was simply too destructive to the civilian population. But while this norm is emergent, it is nevertheless important, codified through the Geneva Conventions, and carries the force of law.

The claims that there is a norm against prosecuting a former president, if we look very carefully, actually turn out to be three slightly different claims. All are wrong. But they’re wrong for very different reasons.

The claims, if we unpack them, are:

    There exists a fundamental norm against prosecuting a former president, rooted in the rule of law itself.

    There exists an emergent norm against prosecuting a former president tracing its history to the beginning of the Republic itself

    There exists an emergent norm against prosecuting a former president established by the pardon of then-former president Nixon by President Ford.

Let’s start with the first claim: that there is a norm against prosecuting a former president, rooted in the rule of law itself. This is a misinterpretation of a real norm: the prohibition of politicized prosecutions. That might sound superficially a bit like a norm against prosecuting politicians, but it’s not.

The norm against politicized prosecutions is not a fundamental norm; it’s a derivative norm that comes from two more fundamental rules:

    The rule-of-law norm of a right to a fair trial,

    The rule-of-law norm of equal treatment under the law

These norms carry constitutional weight in the United States: The right to a fair trial is codified in the 5th and 6th Amendments, and the right to equal treatment under the law is codified in the 14th.

Politicized prosecutions, such as show trials, violate these norms (and, by extension, those constitutional provisions). When a defendant’s guilt is established through an extrajudicial process—either explicitly, or implicitly, such as during showtrials where the defendant’s guilt is politically decided outside of the courtroom—this implicates the defendants’ rights to a fair trial. Since politicized trials also target the defendant because of their political status, this separately implicates the equal treatment under the law norm.

Neither of these fundamental norms are implicated in Trump’s case.

Let’s start with the right to a fair trial. Donald Trump’s guilt has not been pre-established by a political process. Trump will not go to prison merely because a politician wants him to. This is not to say that there is a shortage of politicians who would very much like Trump to be found guilty. Many surely would! And it is also not to say that Biden could not absolve Trump’s criminal liability by pardoning him—an observation that is equally applicable to every federal criminal trial.

Those two statements might be true, but they are both irrelevant to the question of a fair trial. Here, the relevant question is only whether Trump will have a fair opportunity to argue his defense to the judge and jury, and that they will impartially assess that defense without any prejudice from non-relevant facts or non-legal considerations. If Trump can persuade the jury that the facts, as alleged, did not occur beyond a reasonable doubt, he will be found not guilty. If he can persuade the judges that, as a matter of law, the charged offenses either do not apply, or are unconstitutional as applied to his circumstances, the government’s case will fall apart and he will walk free.

Is Trump being denied equal treatment under the law because of his status as a former President? Hardly. The facts, as alleged, would be damning for any other defendant, and the charges against Trump are not even unusual given the facts that are alleged—any other defendant who retained hundreds of highly classified documents and refused to return them would expect indictment and prosecution on similar charges.

Despite the strength of evidence levied against him, it is still not certain he will be found guilty, precisely because his guilt will be decided solely in the courtroom and has not been pre-decided by some political process happening outside of it. He will be tried by a jury in South Florida—a district that, if anything, is strongly biased in his favor. His trial will be overseen by a judge that he appointed and who has, in previous cases, gone out of her way to afford him unusually beneficial decisions far beyond what any other comparable defendant would expect, even in their wildest dreams.

In other words, while the facts, as alleged, are extraordinarily damning—and entirely self-inflicted—the judicial circumstances are skewed heavily in Trump’s favor, not against him. The idea that he is being mistreated by the judicial system is, frankly, laughable.

In summary: The norm against politicized prosecution is not a norm against prosecution of politicians. It is a derived norm from the right to a fair trial and for equal protection under the law. Trump’s case will be decided judicially, not politically, and, if anything, the judicial circumstances are unusually skewed in Trump’s favor, not against it. The norm against politicized prosecutions is not at issue in this case.

To lend further weight to the claim that there is no fundamental rule-of-law norm against prosecuting former presidents, we can simply look at several other rule-of-law nations and see that the prosecution of former presidents is not an uncommon practice.

Just by way of a few recent examples of rule-of-law countries convicting former heads of state and heads of government:

    Chen Shui-bian, President Taiwan, (2009, Bribery)

    Jacques Chirac, President, France (2011, Corruption)

    Silvio Berlusconi, President, Italy, (2013, sex with a minor; malfeasance in office)

    Ehud Olmert, Prime Minister, Israel (2014, Bribery)

    Choi Kyoung-hwan, Prime Minister, South Korea (2018, Bribery)

    Ma Ying-jeou, President, Taiwan (2018, Leaking classified information)

    Benjamin Netanyahu, Prime Minister, Israel (2019, Fraud, Bribery)

    François Fillon, Prime Minister, France (2020, Fraud)

    Nicolas Sarkozy, President, France (2021, Bribery)

    Cristina Fernández de Kirchner, President, Argentina, (2022, Fraud)

As to the question of an emergent norm against prosecution of former presidents, I want to take this in three parts:

    There is no historic norm against prosecution of former presidents, as understood during the founding era.

    The pardon of Nixon did not assert a norm against prosecution of former presidents.

    There is no modern (post-Nixon) norm against prosecution of former presidents.

Let’s start with the historic norm, starting at the beginning of the Republic.

Prosecution of politicians—and former presidents—in the United States has always been viewed as appropriate in some circumstances, dating back to the founding era.

Here is the transcript from the Constitutional Convention, on Tuesday September 15, 1787 (emphasis added):

    Mr. RUTLIDGE and Docr. FRANKLIN […] Art: II. Sect. 2. "he shall have power to grant reprieves and pardons for offences against the U. S."

    Mr. RANDOLPH moved to "except cases of treason." The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.

    Col: MASON supported the motion.

    Mr. Govr. MORRIS had rather there should be no pardon for treason, than let the power devolve on the Legislature.

    Mr. WILSON. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.

Here, Wilson’s response is instructive: According to him, the pardon power doesn’t need to be abridged or subject to ratification by the other branches, not because a malicious president could never exist, but rather because the Constitution provides a safety valve against such a malicious president: he could be impeached by the Congress to strip him of office and then that former president could be prosecuted.

This point was sufficiently uncontroversial that nobody objected to it, or suggested any issue with it.

There are other contemporaneous sources to this point too. Take, for example, Hamilton’s Federalist Paper No 77 (emphasis added):

    The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law.

Federalist Paper 65:

    The punishment [of the impeached president] which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law

In Federalist Paper 69, Hamilton not only asserts a former president’s liability to prosecution, but goes further, explicitly contrasting it to the King of Great Britain, who has general immunity that the American constitutional system chose to not emulate with respect to the president.

    The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.

All of which is to say, it was well understood by the Framers that former presidents were liable to prosecution and punishment, in appropriate circumstances.

The United States Constitution provides legislative immunity from criminal prosecution via the Speech and Debate clause, but does not extend that criminal immunity to the Presidency—and certainly not to former presidents. In fact, it does the opposite, anticipating criminal liability of former presidents in the Impeachment Judgement Clause in Article I, Section 3, Clause 7 (emphasis added):

    Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

While the first half of this clause constrains the Senate to ensure that impeachment convictions can only lead to the removal and disqualification from office, the second half operates as a double-jeopardy waiver, explicitly anticipating and permitting the trial and punishment under criminal law of the impeached person. In the case of the impeachment of a president, this anticipates and permits the indictment and criminal punishment of a (newly) former president in appropriate circumstances.

The list of prosecutions of federal politicians in the United States is not small. As an initial count, the United States has indicted and obtained convictions for at least 82 Representatives; 5 Senators; 9 district court judges; one appellate judge; 2 Vice Presidents (Aaron Burr for treason; Spiro Agnew for extortion, bribery, and tax fraud); and dozens of senate-confirmed members of the executive branch, including: two attorneys general; and a Director of the CIA (Petraeus).

The first conviction of a federal politician was just 10 years after the ratification of the constitution in 1798. Since 1900 there has been no decade where no federal politician was convicted. As of writing, the most recent federally elected politician to be convicted was Representative Jeff Fortenberry, who was convicted and sentenced in July 2022.

As a purely historical matter, there has never been a historical practice against the indictment or prosecution of federal politicians in the United States; nor any historical practice of immunity that derives from party alignment or even due to separation-of-powers concerns between the branches. Administrations of both parties have prosecuted politicians of their own, and other parties, regardless of governmental branch, as appropriate.

To the premise that perhaps there is an emergent norm against prosecuting presidents starting at the pardon of former president Nixon, this is refuted directly by that pardon itself. The pardon of then-former president Nixon by President Ford noted that Nixon would otherwise have expected indictment for his crimes. The text of Ford’s proclamation 4311 is given in total below:

For emphasis, the relevant sentence is reproduced below:

    As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States.

Here, Ford states that then-former president Nixon is liable to criminal prosecution, and anticipates that Nixon is liable to possible criminal indictment and trial, if not for this pardon. This is perhaps a very obvious point: if Ford did not think that Nixon was liable to prosecution despite being a former president, granting him a pardon would have been quite pointless. The pardon exists precisely because former presidents are liable to criminal prosecution in administrations that follow.

The Executive Branch, has, since Nixon, also repeatedly asserted the possibility of criminal prosecution of former presidents. In the United States, the Executive Branch’s institutional views on matters of separation of powers are encoded through memoranda drafted by the Office of Legal Counsel (OLC). These memoranda do not hold the same weight as an opinion by the Supreme Court, but do, nevertheless, encode the Executive Branch’s reasoning and analysis on the state of the law, to the extent that it advises the President with respect to separation of his powers from those of the other branches, and is binding on departments and agencies within the Executive Branch, including the Department of Justice.

In a pair of memoranda in 1973 and 2000, OLC looked at the question of whether a President was liable to prosecution in office. It concluded the answer was no; but the reasoning behind that conclusion is separately instructive: the President might not prosecutable while in office, but this is because, among other things, the remedy for presidential misconduct was impeachment (or removal from office by fact of election), followed by prosecution after leaving office. In other words, OLC affirmatively rejected the idea that the president had a permanent immunity from prosecution.

Another OLC opinion makes this point again: In 1974, OLC investigated a question of a presidential self pardon. OLC’s opinion then was that a president could not issue a pardon to himself. But critical here is an unspoken assumption in the request itself: the only point in issuing a self-pardon would be to immunize a former president from criminal proceedings taking place under a future administration. At no point did OLC even consider the idea that a former president was not liable to prosecution, because this fact was obvious to everyone involved.

In the modern era, federal prosecutors in the United States are required to follow guidelines laid out in the Principles of Federal Prosecution guidebook, formerly known as the U.S. Attorney Manual. Section 9-27.220 lays out the basis under which prosecutorial discretion may be applied to decline prosecution of a federal offense:

    The attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

Can a prosecutor decline prosecution simply because the defendant is popular, or a political figure, knowing that this might affect a jury?

The guidebook gives an answer here too: this is an invalid basis to make a prosecution decision

    Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution. For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt—viewed objectively by an unbiased factfinder—would be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt, based on the circumstances, that the jury would convict. In such a case, despite his/her negative assessment of the likelihood of a guilty verdict (based on factors extraneous to an objective view of the law and the facts), the prosecutor may properly conclude that it is necessary and appropriate to commence or recommend prosecution and allow the criminal process to operate in accordance with the principles set forth here.

Indeed, criminal investigation of former presidents of both parties has been regular practice post-Nixon, even if indictment has not resulted. Trump may be the first former president to be indicted, but he is not the first current or former president to be criminally investigated. There are four presidents (not including Trump) who have been criminally investigated; three of which in the modern era:

    President Ulysses S Grant was famously arrested for speeding while in office, and fined.

    President Richard Nixon was famously criminally investigated by the Watergate grand jury and special prosecutor; the investigation was ended by the pardon from Ford.

    President George H.W. Bush was—far less famously—criminally investigated by the Office of the Independent Counsel in connection with the Iran Contra affair, which occurred while Bush Sr. was Vice President. As the Independent Counsel notes:

    The criminal investigation of Bush was regrettably incomplete. Before Bush's election as President, the investigation was primarily concerned with the operational conspiracy and the careful evaluation of the cases against former National Security Adviser John M. Poindexter and Lt. Col. Oliver L. North of the National Security Council staff, prior to their indictment in March 1988. This included a review of any exculpatory material that might have shown authorization for their conduct. In the course of this investigation, Vice President Bush was deposed on January 11, 1988.

The independent counsel considered, but eventually declined to pursue criminal charges against Bush. The investigation closed when OIC filed its final report on August 4, 1993.

    President Bill Clinton was the subject of criminal investigation through much of his tenure in office, and the Monica Lewinsky investigation was not closed with a non-prosecution settlement until after he left office. In addition, he was criminally investigated after leaving office in relation to the pardon of Marc Rich. Although Bill Clinton was never charged, the investigation did get as far as empaneling a grand jury in the Eastern District of Louisiana and issuing subpoenas. The cover page of DOJ’s criminal investigation into Bill Clinton is shown below.

In other words, there is no theoretical basis to assert a norm against prosecuting former presidents, nor is there an established international practice on which to assert such a norm. It is not a fundamental norm in the rule-of-law.

There is no historical basis rooted in the founding era for it either: The Constitution by its own text explicitly rejects the existence of such a norm, as do several of the Federalist Papers, and the debate at the Constitutional Convention itself. The United States has a storied and continuous history prosecuting federal officials of both parties and across all branches starting in the founding era and which is unbroken through to 2022.

There is also no modern basis for such a norm in the post-Nixon era. The text and very existence of the Nixon pardon refutes the concept of a norm against indictments of former presidents; the executive branch has repeatedly rejected the idea of such a norm since; and as a modern historical practice; two other former presidents (not including Trump) have been criminally investigated since Nixon, even if Trump is the first to be indicted.

So, no, there is no norm against prosecution of former presidents in the United States.

There never was.