American presidents have traduced civil liberties, committed perjury, obstructed justice, and fostered corruption. They have acted in contempt of Congress, condoned arms smuggling and violated campaign-spending laws. They have committed and covered up crimes. But never before has anyone who occupied the country’s highest office – one who has sworn in public to “preserve, protect and defend the Constitution of the United States” – been criminally indicted.
With this presidential precedent shattered by the indictment of Donald Trump, American politics is entering uncharted waters, without buoys, day beacons, safe-water marks or fog signals.
Mariners and swimmers know that the Potomac River, which runs through Washington and defines the capital’s boundary on the left descending bank, is regarded as perhaps the most dangerous of navigable waters. Until now, presidents – who from Abraham Lincoln (who suspended habeas corpus during the Civil War) and Grover Cleveland (accused of rape) to John F. Kennedy (implicated in the assassination of a president of Vietnam) and Richard Nixon (who presided over the Watergate cover-up if not the crime itself) – have negotiated the strong underwater currents of one of the nation’s most fabled rivers. All of Mr. Trump’s 43 predecessors have avoided criminal indictment, none has been arrested, and most have even evaded serious threats to their reputations in the court of public opinion.
Mr. Trump, who signalled that he expected the dramatic development, has called on his supporters to undertake protests to “take our nation back,” a potentially incendiary prompt that was as an echo of his remarks minutes before the 2021 siege at the Capitol and that could lead to fresh dangerous street confrontations
He faces new, extraordinary and unparalleled legal threats even as he embarks on his third White House campaign, leads the race to win the Republican presidential nomination, and is a strong contender to become the first chief executive since Cleveland himself to win nonconsecutive presidential terms in next year’s general election.
The legal action against Mr. Trump comes in the face of long-standing custom that presidents are not charged with crimes; for generations, Americans have resisted criminalizing political behaviour, and in 1973, as the Watergate scandal was unfolding, an internal memo prepared by the Justice Department’s Office of Legal Council argued that sitting presidents could not be indicted. A quarter century later, the independent counsel in the Bill Clinton imbroglio growing out of his affair with a White House intern decided to pass on the option of indicting the president.
Neither the Justice Department nor the Supreme Court has ruled on whether former presidents can legally face indictment. There are, moreover, no bars to an indicted or convicted individual becoming president or continuing to serve as president. The Constitution provides such a barrier only through impeachment in the House of Representatives and conviction in the Senate. Mr. Trump was impeached twice but was not convicted in either occasion.
Now Mr. Trump – and the country he led for four stormy years – must navigate waters that the former president already has roiled with his incendiary style, his devoutly loyal political base, and his quiet signals of approbation to his sliver of violence-prone vigilantes.
All this in a New York case that even Mr. Trump’s most ardent critics might concede is a peripheral crime, far less publicly consequential than encouraging the Jan. 6, 2021, insurrection on Capitol Hill, seeking to overturn the 2020 election, or squirrelling away secret government documents at his Mar-a-Lago home.
Mr. Trump will be charged with involvement in a $130,000 hush-money payment to the porn star Stormy Daniels, with whom he is alleged to have conducted a sexual affair – a relative misdemeanour, in the view of his opponents, after a presidency of felonies, the political equivalent of indicting the gangster Al Capone, implicated in bootlegging and mass gang murders, for tax evasion in 1931. The indictment comes as separate criminal charges are being weighed in investigations in Georgia and by the U.S. Justice Department.
In the first breath of the First World War, the German battleship Goeben escaped British Royal Navy pursuit across the eastern Mediterranean and found safe refuge in Constantinople, prompting Winston Churchill to reflect in his war memoir that “The terrible ‘Ifs’ accumulate.” Now, “The terrible ‘Ifs’ accumulate” in peacetime American politics – and many of the heretofore forbidden, and incontrovertibly forbidding, questions are accumulating in the choppy waters of United States civic life.
Could Mr. Trump face imprisonment? Will the Trump indictment on a peripheral charge seem gratuitous and vengeful? Will it hurt the former president’s political prospects?
Or will it, in a bizarre twist, enhance his appeal among members of his base the way the twin indictments – for bribery and mail fraud – of Boston Mayor James Michael Curley, whose political style shared elements of Mr. Trump’s, only boosted his supporters’ devotion after his imprisonment in 1947. (The Republican governor of Massachusetts and the state’s Republican legislature feared that declaring the mayoralty vacant would create a populist backlash that would only increase Mr. Curley’s popularity. The mayor eventually was pardoned by President Harry Truman, a course that president Gerald Ford followed after Mr. Nixon resigned in 1974 and that President Joe Biden might find himself considering in this case.)
Mr. Trump’s opponents, his closest aides, the Manhattan district attorney’s office, New York State court officers and the Secret Service all have anticipated this moment, with the various parties, suddenly transformed into contending interests, conducting the civilian equivalent of military war games on how to handle this development and its fallout. There are few if any precedents to confront the political dimensions of this development – and no buoys to guide Americans’ passage.
Donald Trump has been indicted by a grand jury in New York. What do you want to know?
The Globe’s David Shribman will answer reader questions about Trump, the indictment and what happens next to the 2024 presidential candidate.