Past presidents, while never indicted, have faced legal woes of their own

We have had one president who was named as an “unindicted co-conspirator” by a federal grand jury in a breathtakingly wide conspiracy case that sent some of Washington’s biggest names to jail.

That happened in 1974 and the president was Republican Richard Nixon, the centerpiece figure in the scandal known as Watergate. Nixon was also the one president who felt it necessary to tell a televised news conference: “I am not a crook.”

Watergate involved burglaries, illegal wiretaps and other crimes committed by operatives for Nixon’s 1972 re-election campaign. There had been months of concerted White House efforts to cover up those crimes.

Forty federal officials were indicted or jailed in the case, including Nixon’s chief of staff, White House attorney, chief domestic adviser and attorney general. All had carried out orders that, directly or indirectly, originated with Nixon himself.

On the brink of impeachment in August 1974, Nixon resigned. An indictment might well have followed, but in September he received a blanket pardon from his successor, Gerald Ford. Nixon had chosen Ford when the previous vice president, Spiro Agnew, resigned in 1973 over corruption charges of his own.

Ford’s popularity plummeted after the pardon and he lost his bid for a term in the White House in his own right in 1976. There has never been any proof that Ford agreed to the pardon before Nixon’s resignation.

Nixon’s shield becomes Trump’s

But why did that grand jury name Nixon an “unindicted co-conspirator”? Because an opinion from the Justice Department’s Office of Legal Counsel in 1973 had said a sitting president could not not be indicted.

Some, including former U.S. Solicitor General Walter Dellinger, have argued that the OLC prohibition on indicting the president dealt “mainly with the question of whether a president can be put on trial.” Dellinger was head of the OLC from 1993 to 1996.

Nonetheless, the 1973 OLC opinion was treated as policy in the Justice Department in 2019, when independent counsel Robert Mueller was reporting on links between Trump’s 2016 presidential campaign and Russian interference in that year’s election.

Mueller did not find such links, but his report did cite several instances of what some legal authorities considered obstruction of justice. That idea was flatly dismissed by William Barr, who was the Trump’s attorney general at the time, who treated the Mueller report as an exoneration (over Mueller’s objections).

Some Democrats in the House read Mueller’s report as a “road map” to impeachment. But House Speaker Nancy Pelosi did not support calls for impeachment at that time. (She later supported impeachment proceedings over Trump’s pressuring Ukraine to investigate Joseph Biden, who would be Trump’s opponent in 2020.)

It is worth noting, too, that impeachment “for high crimes and misdemeanors” is a congressional action. It is not the same thing as a being indicted or charged by the criminal justice system. And we saw that again in the case of Democratic President Clinton in the 1990s.

The Clinton Case – Impeachment but no arrest

Clinton was accused of giving false testimony to a grand jury, which amounts to perjury, and obstruction of justice. It happened in 1998, as Clinton dealt with the fallout from his affair with a White House intern, Monica Lewinsky.

Clinton had been pursued by special counsels since shortly after his election in 1992. An extensive investigation of Whitewater, a real-estate deal tied to a savings-and-loan failure in his home state of Arkansas, led to criminal charges against some of Clinton’s former associates, but not against Clinton or first lady Hillary Clinton, who had been an attorney in Arkansas while her husband was governor.

But one of the special counsels, Ken Starr, appointed by a federal appeals court, eventually made the case about Lewinsky. That supplied the substance for an impeachment proceeding in the House in the fall of 1998. In December, the House approved one article of impeachment for perjury and one for obstruction of justice, both based on Clinton’s false representations regarding Lewinsky.

The vote on both articles was close and almost perfectly followed party lines. And, like Trump two decades later, Clinton was found not guilty in the Senate. In the Clinton case, though the Senate was 55-45 Republican at the time, the chamber could not muster a majority for a guilty verdict on either count – let alone the two-thirds majority required.

It is worth noting that Clinton’s impeachment was not popular with the electorate. Clinton registered a 73% approval in the month the House approved the articles against him, and he left office two years later at 66%.

Several other women also came forward to accuse Clinton of sexual advances and even assaults, but none of their efforts resulted in criminal charges during or after his presidency. Out of office, Clinton’s attorneys negotiated a five-year suspension of his license to practice law back in his home state. But he has not been formally indicted or charged with any crime, anywhere.

There have been allegations of “womanizing” or other forms of abusive relationships lodged against other presidents – including after they have left office. John F. Kennedy, elected in 1960 and assassinated three years later, has been the subject of many such reports, in some cases involving well-known individuals such as the movie star Marilyn Monroe.

But while various accusations of controversial sexual behavior have been part of presidential politics since Thomas Jefferson, they have never resulted in criminal charges being brought in any jurisdiction.

A brief presidency beset by scandal

Another president often mentioned in connection with potential criminal liability is Warren Harding. Winning in a landslide in 1920, Harding inherited a country struggling to heal after World War I, a sharp recession and a period of social and political upheaval. He was known for urging a “return to normalcy,” and to some degree achieved that. But just 17 months after taking office, he died suddenly of a heart attack at age 57.

What followed was a steady stream of revelations about corruption in his administration. While his Cabinet featured distinguished figures at State, Treasury and Commerce, Harding would be remembered for the misdeeds of his Attorney General Harry Daugherty and Secretary of the Interior Albert Fall.

The worst of several scandals involved profits from the building of veterans’ hospitals and the skimming of profits from the sale of U.S. oil reserves left over after the war. The latter was named for the repository in Wyoming where the oil was kept, Teapot Dome.

Harding himself was not implicated in the scandals directly. But his stature as a president has suffered, nonetheless, miring him near the bottom in rankings of American presidents. In recent years, he has attracted renewed attention for his extramarital affairs, including allegations of a child born out of wedlock and a 15-year affair with a woman with whom he exchanged passionate letters that were unsealed and widely read in 2014.

Allegations of war crimes

We have also had a number of presidents whose actions against enemies around the world, real or perceived, have led various international entities and authorities to label them “war criminals.” Rumors for years have said former President George W. Bush and Vice President Richard Cheney were unable to travel overseas because of warrants for their arrest. This is not true.

A court in Malaysia (the Kuala Lumpur War Crimes Commission) in 2015 charged, tried and convicted President Bush, Cheney, Defense Secretary Donald Rumsfeld and several of their legal advisers with war crimes of torture and inhumane treatment. The charges were connected to treatment of prisoners in the Iraq war, years earlier. The same commission had earlier accused Bush and British Prime Minister Tony Blair of war crimes in Iraq.

The convictions and trial transcripts were referred to the International Criminal Court and the United Nations, which did not recognize them as having legal authority.

Prior to the Iraq War, allegations of U.S. war crimes tended to focus on Vietnam or other actions the U.S. took during the Cold War.

Some of those activities were also directed at governments perceived as hostile to U.S. business interests, including in Latin America and the Middle East –including the regime of Iranian Prime Minister Mohammad Mossadegh, who was overthrown in 1953.

When those activities came to light in the 1970s and thereafter, presidents including Harry Truman (1945-1953), Dwight Eisenhower (1953-61), Kennedy and Lyndon B. Johnson (1963-1969) and Nixon would all be tarred, in varying degrees, by this same brush. But alleged crimes for which they might have been held responsible by many overseas (and some at home) did not produce any movement toward prosecution in the U.S.