Contextualizing Trump

There are lots of different ways to approach the indictment of former President Trump on thirty-seven felony counts, but presuming the man’s guilt in advance should not be one of them: like anyone at all charged with a crime in our nation, the ex-President enjoys the presumption of innocence until such time as he is actually convicted of a crime. With that, none (I hope) can argue. Nor should anyone question his right to defend himself vigorously in court and to be aided in that defense by able counsel: all these are basic rights accorded to all accused individuals without exception and really should not be questioned at all, let alone challenged. The man has no more rights than anyone, but also no fewer!

But the larger question facing the American people as we wait to see what happens next is how to contextualize the whole affair. Surely, the principle that none is above the law is basic to any democracy. I lost track early on of how many times I heard those words cited in this specific context in the last week, which is as it should be: the notion that the sign of a truly healthy democracy is precisely that neither wealth nor status can protect someone from facing the legal consequences of his or her actions in a court of law is really unarguable. But that’s not quite the tack I wish to take in analyzing this last week’s events, which is to wonder aloud how to set last week’s indictment in its larger context. Of interest too is that President Trump’s former valet (now his aide), Walt Nauta, was also named in the indictment as a co-conspirator. That surprised me, but whether he is destined to turn into Gary from Veep or to morph into this year’s Michael Cohen remains to been. (Both went to jail, but one remained faithful to his boss and the other turned on him.) But the concept itself that the big man’s little man is going to have to answer for his own misdeeds is also a healthy sign that the law applies to the mighty and the lowly alike, just as it should and must.

One way to contextualize the indictment would be to do so horizontally by scanning the globe for similar stories. Of these, there is no lack. In 2021, the former president of France, Nicolas Sarkozy, was sentenced to a year in prison for corruption and influence peddling. The former president of South Africa, Jacob Zuma, has been charged with racketeering and money laundering, and will face trial. Ehud Olmert, the twelfth Prime Minister of Israel, was convicted of taking bribes and obstructing justice, then sentenced to six years in prison. And, of course, the Prime Minister of Israel, Benyamin Netanyahu, is also on trial for bribery and fraud. And that’s only to mention the most recent world leaders to face trial in their own countries. Nor was Israel the only country to put two of its political leaders on trial this century: Sarkozy’s predecessor, Jacques Chirac, was found guilty of paying bribes and accepting kickbacks in 2011 and handed a two-year suspended prison sentence.  If this were a contest, though, South Korea would probably win: in the last three decades, five different former South Korean presidents have been tried and convicted of various offences. For a useful and very interesting summary published on the PBS website of world leaders who have been arrested, tried, and convicted (or not convicted), click here.

It's actually a very satisfying list to contemplate, one populated by politically powerful and mostly very wealthy individuals who were specifically not deemed to be above the law and who were therefore obliged to defend themselves in courts of law against the charges brought against them. But I’d like to propose an alternate way of contextualizing the Trump indictment, one rooted in American history rather than in the stories of other nations.

In the course of the last century, four presidents have had their reputations seriously tarnished by charges of criminal wrongdoing leveled against themselves or others close to them. Of them, however, Donald Trump is the first actually to face federal criminal charges. But considering no. 45 in the light specifically of three of his predecessors—nos. 29, 37, and 42—is an interesting exercise nonetheless.

Sometimes, it’s enough merely to be associated with bad people.

Warren Gamaliel Harding, no. 29, was in office for less than two and a half years, wrapping up his service to the nation in the summer of 1923 by suffering what was probably a serious heart attack while visiting Washington State and then dying a few days later in San Francisco. That he seems to have had a series of extra-marital affairs, including one that probably resulted in an illegitimate child and another that memorably featured a White House tryst in a closet off the Oval Office with Secret Service agents posted in the hallway to keep the couple safe from intruders, hasn’t helped his reputation. But it was not his infidelity that damaged his reputation—the nation had learned not to care much about that back in the days of Grover Cleveland—as much as it was his association with people later accused of serious crimes, including his Secretary of the Interior Albert Fell (who was later convicted of accepting hundreds of thousands of dollars in bribes in what came to be called the Teapot Dome Scandal) and his Attorney General, Harry Daugherty, who was tried on charges of corruption but in the end not convicted. Key is to realize that Harding himself was dead when all this came out and that he himself was never accused of actual wrongdoing while still alive and serving as President. And yet his name was so posthumously tarnished that he is regularly rated as among the very worst of our American presidents. So we begin with the story of a man who was tarnished by association, whose willingness to consort with men later openly labelled—in the court of public opinion as well as in actual courtrooms—as criminals ruined his reputation. This we could reasonably call guilt by posthumous association.

Moving along, we could consider the fate of William Jefferson Clinton, no. 42. Bill Clinton was accused over the years by at least four different women of sexual assault, but not by Monica Lewinsky, who never described herself as an assault victim. Nonetheless, it was lying about that specific relationship that led independent prosecutor Kenneth Starr to charge Clinton with perjury and obstruction of justice. This led directly to the December 1998 vote in the House of Representatives to impeach Clinton, which led to his five-week trial in the Senate. (That Kenneth Starr was supposed to be investigating the Clintons’ role in the Whitewater Real Estate scandal and not the president’s sex life may well have contributed to the sense among many that the president was being tried in the Senate unfairly.)  Clinton was acquitted, but his reputation was severely tarnished by the whole affair, which would put him in a slightly different category than Warren Harding: both are remembered as philanderers, but Clinton’s famous “I did not have sexual relations with that woman” combined with his impeachment, his trial in the Senate, the suspension of his license to practice law in Arkansas, his disbarment from presenting cases in front of the U.S. Supreme Court, his being held in contempt of civil court, and the $90,000 fine he was obliged to pay for giving misleading testimony in court—all these together ruined Clinton’s reputation in the eyes of many. He is, of course, still alive and well, which puts him in a different category than Warren Harding, who at least had the good fortune to have his reputation ruined posthumously. And he has clearly bounced back to being a respected past-president whose company is sought out and whose counsel if valued.

And that brings me to no. 37, the president of my college years, Richard M. Nixon. In February of 1974, a federal grand jury was prepared to indict the by-then-former president by charging him with a variety of crimes connected with his association with the Watergate break-in: bribery, conspiracy, obstruction of justice, and obstruction of a criminal investigation. What would have happened if they had actually indicted him is hard to say—but it never happened because Congress was busy drawing up the articles of impeachment that led directly to Nixon’s resignation on August 8, 1974. The next day, Gerald Ford took the oath of office and became president. And a month after that, President Ford pardoned his predecessor, thus protecting him from criminal prosecution. (The question of whether Nixon effectively made Ford president in exchange for the promise of a pardon has never been settled. Ford was obliged to deny formally that such a deal existed when he was called to the House Judiciary Committee in the fall of 1974. But deal or no deal, that pardon cost him mightily: his approval rating dropped from 71% to 50% after he pardoned Nixon and that single act probably cost him the 1976 election.)  It would be fair to say Nixon’s legacy was permanently tarnished by his decision to resign, which was understood at the time as a kind of unspoken yet somehow fully audible admission of guilt. And his reputation too was left in tatters by the whole sorry affair. So Nixon’s story presents yet a third version of doing what it takes to avoid paying the piper: Harding skipped the whole thing by dying before the corruption in his own cabinet became known, Clinton swallowed one bitter pill after the next but eventually walked away intact from the whole nightmarish series of disasters he basically brought down upon himself, and Nixon accepted the humiliation of resignation and then flew off into the sunset to live out his life in California.

And now, Trump. Could he end up in prison? It feels impossible to imagine that actually happening, and yet the crimes with which he has been charged could easily and would probably lead to incarceration for a non-ex-president who wasn’t actually the front runner for his party’s nomination to run for president next year. Eugene Debs famously ran for president in 1920 from a prison cell. (He lost, slightly amusingly, to the above-mentioned Warren G. Harding.) And, if he had won, Debs would theoretically have not been barred by his own incarceration from serving. (He had promised to pardon himself if elected, however, which action with respect to himself would certainly be on the agenda for the first day of Prisoner Trump’s new term of office.) Still, the basic principle upon which any true democracy rests—the Torah’s own principle of one single set of laws governing all, rich and poor, powerful and powerless, well-connected and poorly connected and totally disconnected—that specific principle is alive and well in our American republic. And regardless of the outcome of the Trump trial in Florida, that is something for all to celebrate.