We used to be different. For over two hundred and thirty years, we managed to avoid seeking to imprison our former leaders. But it seems we are now about to cross that bridge.
We’ll have a robust debate in the coming months about how we got here. Did Donald Trump, through his years of unrepentant malfeasance, force the hand of prosecutors – the Manhattan DA for now, likely soon to be joined by others? Or did a local, elected prosecutor give in to the irresistible lure of charging, making the history books, and basking in the political glow of being the first to bring Trump to the defendant’s table?
Let’s be entirely clear about what the Manhattan District Attorney’s indictment of Donald Trump, if it comes to pass, will mean: prosecutors will seek to convict the former president of a crime and, potentially – to borrow a turn of phrase – to lock him up. As we discussed last week, a conviction is far from certain and, even in that instance, actual imprisonment is possible but uncertain. Those are the stakes, and they’re as real as iron bars.
I’ve been critical in this space and elsewhere of prosecutors who have moved too slowly on their Trump-related cases – primarily Merrick Garland, but also Fulton County DA Fani Willis and now Manhattan DA Alvin Bragg. (Disclosure; Bragg is a friend and former colleague.) The timing of the Manhattan DA’s office is particularly bizarre, and fairly inexplicable. Sure, the DA probably could not have indicted Trump while he was in office – it’s not entirely clear state prosecutors would be bound by the longstanding DOJ policy against indicting a sitting president, but the smart bet is that they would – and Bragg took office just over a year ago. But Trump absolutely could have been investigated while he was in office, so the clock has been ticking all along. And it’s unclear at the moment why Bragg would pick up a case based on conduct that happened over six years ago – especially after the feds across the street at the SDNY (where both Bragg and I used to work) passed on the case when Trump left office over two years ago, and after Bragg’s predecessor, Cy Vance, also took no action. Perhaps Bragg has discovered compelling new evidence – which he’ll need to corroborate the word of Michael Cohen, the star witness, who comes with genuine credibility issues.
Part of the reason for this collective prosecutorial reluctance, I believe, is that it simply doesn’t feel American to prosecute our former leaders. We’re different, we like to think, and we just don’t do that. That’s for other countries – less stable ones, where it’s standard operating procedure to seek vengeance on our vanquished political foes. If anything, we celebrate our former presidents. We put them on mountains and dollar bills and elementary schools. And as time passes, we tend to adopt glossed-over views of their time in office, often holding former presidents in higher regard than when they sat in the Oval Office. We venerate our presidents emeritus; we don’t lock them in cells. And we fear what might happen if we break with that historical precedent.
But the truth is that a surprising number of stable, developed countries have brought criminal charges against former presidents or prime ministers, and they’ve survived just fine. Former French president Nicolas Sarkozy was prosecuted and convicted twice after he left office – once in March 2021 for bribery and influence peddling, and then in a separate case in September 2021 for criminal violations of France’s campaign finance laws. Sarkozy’s predecessor, Jacques Chirac, was charged in 2010 and convicted in 2011 for embezzling funds while he was mayor of Paris, before he became president.
In 2019, Israeli prosecutors indicted former prime minister Benjamin Netanyahu on bribery, fraud, and other charges. In 2015, former prime minister Ehud Olmert was prosecuted and convicted for bribery, and served 16 months behind bars. And in 2011, former Israeli president Moshe Katsav was convicted on rape charges; he served five years in prison.
In Italy, former prime minister Silvio Berlusconi was charged, tried, and acquitted in 2021 for allegedly paying a witness to make false statements about an underage prostitution case. And he was found guilty in 2013 of paying an underage girl for sex and abusing public office. Also since 2000, former presidents and prime ministers have been criminally charged and convicted in South Korea, South Africa, Taiwan, Brazil, and Iceland.
Circumstances vary case-by-case, and each country has its own laws and political considerations. But the common through-line is this: prosecutors in developed nations across the globe have, in recent years, criminally charged their country’s own former democratically-elected leaders. Each time, the criminal justice processes played out, verdicts were rendered, and in some instances, the former leaders went to prison. None of these countries collapsed or devolved into chaos or civil war.
I don’t think we will go down a chaotic, violent path, either. Don’t get me wrong: Trump’s trying. He already has predictably begun to lash out at his perceived prosecutorial tormentors and called on his supporters to take to the streets. But thus far, nobody is painting their face, grabbing the bear spray, and breaching the barricades over whether Trump improperly documented a $130,000 payoff to a porn star. Trump predicted (wrongly) that he’d be arrested this past Tuesday, and called for mass protests. Nothing happened. A CNN colleague of mine was covering the courthouse that day and said reporters far outnumbered bystanders, and there was virtually zero pro-Trump presence.
I’m confident that, if Trump surrenders to New York authorities next week in Manhattan, we won’t see mass violence like we saw on January 6. I used to work down there; the place is virtually nothing but NYPD, FBI, U.S. Marshals, court security officers, and prosecutors (not that we’d do much to ensure safety on the streets other than sitting in our offices and writing warrants). The primary buildings in that plaza are police headquarters, the federal building, heavily-fortified courthouses, and prisons. The streets are narrow and don’t allow for mass demonstrations. And the NYPD and other law enforcement agencies have been on high alert and preparing for days already. While we can never account for lunatic lone wolves causing mayhem, I have faith that, even if there are protests, we won’t have anything remotely approaching another January 6.
Beyond whatever happens on the streets, and even in the Trump case itself, it is fair to consider whether we have opened a new frontier where local, elected prosecutors routinely seek their moment of former-president-toppling political glory. We’ll likely be asking this question again in a few weeks, if Willis joins Bragg in charging Trump. In my view, the job of indicting a former president is uniquely suited for the U.S. Department of Justice, legally and politically. But with Garland barely sentient behind the investigative wheel for over two years, who has time to keep waiting? At a certain point, if our chief federal prosecutor won’t do his job in a timely manner, somebody needs to step into the vacuum.
The hope, ultimately, is that Trump is a one-off, as he has been in so many other areas. I doubt we’ll ever see another president who refuses to disclose his tax returns, who routinely launches verbal attacks on law enforcement and civilians, who gets impeached twice, who tries to steal an election. And I don’t think it’s especially likely that it will become the norm that prosecutors go after former presidents purely for political sport.
But soon we will no longer be able to stake our claim as a nation that has never sought to imprison its former chief executive – or, has never been compelled to do so. It’ll be a loss for the country. And, no matter how you might hope the case ultimately comes out, this will be a solemn occasion. But, by his conduct, Trump has made this moment all but inevitable.
[Note: parts of this article were adapted from Elie’s new book, Untouchable: How Powerful People Get Away With It, available now]
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