The tradition of granting post-term immunity from prosecution to those who leave the White House now comes at too great a cost.
In the 240 years since America’s founding, no former president has been indicted for criminal conduct. This isn’t because they were angels—far from it. And it isn’t because post-term indictment is not legally allowed. Instead, it is because Americans don’t like the idea of criminalizing politics. Both parties and the public see the prospect of post-term immunity as a guarantee that the country’s politics will remain civil and that power will transition peacefully from one party to the other. That is what drove President Gerald Ford to pardon Richard Nixon. And it’s one reason why the Office of the Independent Counsel decided not to indict former President Bill Clinton.
The presidency of Donald J. Trump has upended those calculations, and the resistance to post-term investigation may now come at too great a cost. When he leaves office, whether in January or four years later, the next administration or one of the states can and should investigate citizen Donald Trump—a former president whose legal status will be no different from that of any other American. The risk of politicization of such an investigation is far outweighed by the danger posed by failing to uphold our nation’s values. To protect future presidents from retributive investigations once they leave office, however, any investigation should be limited to Trump’s conduct before and after his presidency, not his behavior while he was president. If the findings of such an investigation justify it, prosecutors should indict the former president for violations of criminal law.