Rahim Mohamed: The president-to-prison pipeline

“When the president does it, that means that it’s not illegal.”

By: Rahim Mohamed

In a now iconic series of televised interviews with British presenter David Frost, disgraced ex-United States president Richard Nixon uttered the infamous words, “When the president does it, that means that it’s not illegal.”

Nixon was responding to a specific question about his administration’s so-called “Huston plan” to unlawfully surveil domestic anti-Vietnam War groups, which he held was in the best interests of the nation. His words have nevertheless come to epitomize a certain maximalist view of presidential impunity.

This theory was, of course, never tested in court due to a blanket pardon granted to Nixon by his successor Gerald Ford. Yet Nixon wouldn’t be the last president to skirt the letter of the law. In fact, it’s more-or-less become the norm for American presidents to flirt with criminal activity.

Ronald Reagan and George H.W. Bush were both implicated in the Iran-Contra scandal, a sordid affair that saw fall guy Colonel Oliver North convicted of multiple felonies and earned the United States a rebuke from the International Court of Justice. Reagan, who would later be diagnosed with Alzheimer’s, claimed repeatedly that he could “not recall” key details of the affair when called to testify. 

Less than a decade later, Bill Clinton would lie under oath on multiple occasions about his extramarital affair with White House intern Monica Lewinsky — his defence resting on the shaky grounds that their activities weren’t technically “sexual relations” as Ms. Lewinsky never brought him to orgasm during any of their encounters. (Not touching that one). Clinton was impeached for his duplicitousness, and later had his license to practice law suspended, but managed to evade criminal charges.

Even Barack Obama, America’s shining beacon of “hope” and “change,” couldn’t keep his hands totally clean. In the fall of 2011, he ordered a drone strike on New Mexico-born terrorist Anwar al-Awlaki, an American citizen based in Yemen. Two weeks later, al-Awlaki’s 16-year-old son, also an American citizen, was killed in a subsequent drone operation. Each of these extrajudicial killings arguably met the legal definition of murder — under U.S. federal law, those who kill American citizens living abroad are subject to criminal prosecution in the states.

Of course, none of these men had to worry about the legal consequences of these actions in their post-presidential lives. This reflects a longstanding informal norm that departing presidents ought not face criminal prosecution after leaving office.

This norm was upended last week when Donald Trump became the first ex-president to be indicted for a criminal offence. The indictment, approved by a New York City grand jury, relates to a $130,000 payment made to adult actress Stormy Daniels in October of 2016. The payment, coordinated by Trump’s then-attorney Michael Cohen, was reportedly made to dissuade Ms. Daniels from going public about an alleged sexual encounter she’d had with Trump a decade earlier.

Trump, who’s expected to appear in court on Tuesday, will likely be charged with multiple counts of business fraud, including falsifying business records with the intent to cover up another crime — in this case, a violation of campaign finance laws.

It's important to note that the indictment concerns alleged criminal actions committed by Trump before he entered the Oval Office. As such, this case alone will set no clear precedent for the criminal prosecution of ex-presidents for actions that occurred while they were in office. It nevertheless raises the worrying spectre of retaliatory, politically-motivated prosecutions.

Justice in the United States is already administered in a highly partisan manner. State prosecutors are generally chosen through partisan elections. (Democrat Alvin Bragg will be overseeing Trump’s prosecution). Multiple states even hold partisan judicial elections. While some important safeguards, such as state bar associations and professional oversight bodies, remain in place, the inherent politicization of America’s legal system is undeniable. Trump, accordingly, will take every available opportunity to delegitimize the criminal proceedings against him as a “partisan witch hunt.”

Americans can also look to the track record of other presidential regimes for a possible sign of things to come.

Empirically speaking, countries that elect presidents have a host of well-documented disadvantages compared to counterparts that separate the roles of head of state and head of government. One of these defects is a nasty habit of jailing ex-leaders.

While the ex-heads of parliamentary governments have also faced criminal prosecution, this outcome is far more prevalent in presidential regimes. And it’s not just politically unstable “banana republics” where this is true. Even relatively well-off, stable presidential republics see a fair share of ex-leaders end up behind bars.

Take, for instance, South Korea, where three of the last four presidents have gone to jail after leaving office. At one point in the 2010s, half of all living Korean ex-presidents were incarcerated at the same time.

This problem has also afflicted Brazil, the world’s 12^th-largest economy. After leading Brazil through an unprecedented period of prosperity in the early 2000s, President Luiz Inácio Lula da Silva was jailed on corruption charges in 2018. Lula spent 580 days in prison before triumphantly returning to the presidency at the start of this year. Lula’s opponent, Jair Bolsonaro, will now face possible criminal charges relating to his role in inciting the failed January 8^th insurrection. (Bolsonaro returned to Brazil last week after spending three months in Florida).

Even France, a G7 country and the birthplace of modern democracy, hasn’t been immune. In 2021, ex-president Nicolas Sarkozy was convicted of corruption in two separate trials, becoming the country’s first leader in post-war history to face criminal prosecution. He was ultimately handed a one-year prison term, which he was allowed to serve at home while wearing an electronic ankle bracelet.

So what is it about presidential regimes that makes ex-leaders more likely to wind up in jail?

For one, sitting presidents are exceptionally difficult to remove from office before the end of their term. (Americans saw this firsthand in early 2021 when the Senate failed to remove Donald Trump for inciting the January 6^th siege on Congress; despite the impeachment vote taking place at the literal scene of the crime). The fixed length a president’s term gives ample time for grievances (and criminal cases) to build up to a critical mass.

Secondly, presidential systems offer few incentives for cross-partisan cooperation. Whereas parliamentary governments may rely on the support of multiple parties — as is the case with the current Liberal/NDP confidence-and-supply agreement — presidential elections are effectively winner-take-all contests. Losers spend upwards of four years with zero influence over executive matters, accumulating multiple scores to settle over this length of time. Retribution is often the first thing on their mind when they finally return to office.

Historically, the United States has been insulated from problems plaguing other presidential regimes by strong political institutions and a partisan landscape dominated by two big-tent parties, both tending toward the middle of the political spectrum. However, it has looked increasingly like other presidential system in recent decades as political polarization has taken root. Two years ago, the January 6^th insurrection brought an end to one of America’s most longstanding democratic norms: a 224-year-old tradition of peaceful transitions between presidencies.

Looking to the respective histories of other presidential regimes, it’s not totally far-fetched that Trump’s indictment will open the door to more criminal action against ex-presidents (both legitimate and frivolous). As thrilling as it may be to finally see Trump get his legal comeuppance, Americans should be wary of this possibility. Republicans will eventually wrest political power from Democrats — and when they do they’ll be out for blood.

“Who cares?” you might ask. After all, shouldn’t our leaders be subject to the same laws as everyone else?

While this sentiment is certainly understandable, the advent of a “presidency-to-prison” pipeline in the U.S. would undoubtedly be detrimental to the quality of American democracy. Imagine how much harder it will be to convince good candidates to run once the most likely post-presidency destination is the inside of a prison cell, rather than Martha’s Vineyard and a lucrative speaking tour.

After decades as the world’s “shining city on the hill,” the United States is looking more and more like just another backwards presidential regime. Donald Trump’s impending arraignment could be the next harbinger of America’s inexorable slide into political decay.

Rahim Mohamed is a master’s student at the University of Calgary’s School of Public Policy. He holds a PhD in Political Science from the University of North Carolina at Chapel Hill and spent five years teaching at colleges and universities in the United States. His writing has appeared in The Hub, and the National Post, and CBC News Calgary.

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