The writer is chair of Public Understanding of the Humanities at the School of Advanced Study, University of London, and the author of ‘The Wrath to Come’
“Unprecedented Government scandal,” read the headlines, as revelations of bribery, corruption, pay-offs and cover-up in the White House rocked the US. The administration was accused of “unprecedented corruption”, and it led to the first-ever sentencing of a high-ranking administration member for crimes committed while in office.
A century ago, American newspapers were dominated by headlines about the Teapot Dome scandal. Secretary of the interior Albert Fall, a longtime crony of President Warren Harding, would eventually be imprisoned for accepting enormous bribes to lease government oil reserves to his own cronies at rock-bottom prices. When Fall resigned under pressure of the escalating scandal in January 1923, Harding reportedly offered him a seat on the Supreme Court. That August, Harding suddenly died, almost certainly felled by the stress of the “unprecedented scandals” that were unfolding within his administration, including not only Teapot Dome but a wildly corrupt Veterans’ Bureau, casually gifted by Harding to someone he barely knew.
While it is true that no former US president has before been indicted on criminal charges, little else about the indictment of Donald Trump is as “unprecedented” as the headlines have so endlessly declared. If there’s one thing that American politics has established a precedent for, it’s pretending that its own corruption is unprecedented. Wikipedia helpfully curates a list of 134 (by my count) federal US politicians who have been convicted of criminal wrongdoing. The heading for Watergate, for example, lists the nine men who were eventually convicted of aiding and abetting the break-in, but does not name Richard Nixon, one of at least two former presidents who only narrowly avoided being indicted after leaving office.
Nixon was pardoned by his vice-president and successor, Gerald Ford, in the interests of moving the nation past the unprecedented political scandal of Watergate. Nixon’s first vice-president, Spiro Agnew, faced indictment for unrelated charges of bribery, extortion, tax fraud, and criminal conspiracy; he resigned in a deal to avoid prosecution, after his arguments that a sitting vice-president could not be indicted failed to persuade the Maryland district attorney. Bill Clinton also negotiated a bargain as he left office to avoid indictment for the false testimony about Monica Lewinsky that had led to his impeachment.
Those arguing that New York district attorney Alvin Bragg should not have the authority to indict a former president might consult not only the history of Agnew’s plea bargain, but also the US constitution. Article I, Section 3 states that a president who engages in criminal activity shall, once out of office, “nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law” — the very justification Republican senator Mitch McConnell offered for voting against Trump’s second impeachment in 2021. Two years later, the Republican party professes to believe that any criminal prosecution of a former president is by definition a political act.
There are many more potential indictments awaiting Trump, of course, including for his efforts to subvert the election outcome in Georgia, as well as federal prosecution both for the government documents that were found stored in his Florida home, and for his role in the January 6 2021 insurrection. All of these potential charges, like the New York indictment, blend the political and the criminal, because that is how Trump works. He entered politics to enrich himself, as should by now be clear to anyone but his most cultish supporters.
But that, too, is far from unprecedented. One of the nation’s earliest vice-presidents, Aaron Burr, was indicted for crimes committed while in office and later charged with treason. He had engaged in vast land speculation, while allegedly plotting with foreign powers to incite secession and create a new country out of the Southwest Territory and parts of Mexico. But Burr habitually used “public office in every way he could to make money”, as historian Gordon Wood once put it, noting that Burr’s “insecure financial situation coupled with his grandiose expectations . . . led to his wheeling and dealing and self-serving politics”. Thomas Jefferson urged the prosecution of Burr, Wood argued, precisely because he feared the consequences for the republican experiment if nakedly corrupt politics were permitted to undermine disinterested public service and good-faith efforts for the common good.
Trump is unprecedented in degree, not in kind: he has been permitted to go farther, in every sense, with self-serving politics than anyone before him because his behaviour has unleashed precisely what Jefferson feared.