Former Presidents and Law Enforcement

It's not a long history.

I got into a brief wrangle on Twitter with the journalist and commentator Michael Tracey, who has a lot of subscribers on that platform and this. He objected to the latest Trump indictment by invoking presidential history and asserting that from 1789 until now, “no action taken by a president while in office had ever been criminalized.” Our dispute emerged from the use of “criminalized” in that context.

Tracey was deploying a highly loaded word to say at least two things at once: 1) until now no indictment has been brought against a former president (that’s a fact); 2) in the Trump case, the Justice Department is acting arbitrarily by defining formerly non-criminal presidential behavior as criminal, in the absence of any legislation to that effect (that’s an opinion—whether Trump’s actions make him guilty of a crime is one of the matters to be proven or disproven in the case).

This thing where too-clever-by-half types think they can jam complicated argumentative conclusions into pseudo-informed oratorical flights, neither presenting an argument nor achieving the strained-for effect, isn’t supposed to be my real subject today. But I did realize during my brief back-and-forth with Tracey that Twitter may be partly responsible for a decline in the quality of argument. And in this case, I really mean a decline in rhetoric, i.e., the craft of persuasive writing.

We’ve gotten used to associating the word “rhetoric” with the negative characterization “empty rhetoric,” so the discipline as a whole gets a bad name. But it is a discipline. When its rules aren’t observed, as in the case of Tracey’s tweet, the writer is abruptly exposed for trying to get away with something.

Twitter has given us an amazing new ability to hold semi-public arguments. (I mean it—I think what Twitter has enabled is both amazing and new.) But it’s also required a certain deftness in the skill of tweeting which encourages some bad habits of thought and composition. This problem may be seen at its most glaring, ironically enough, in the unpersuasiveness of a lot of writing coming out of an effort actually called “Persuasion,” also now hosted on Substack.

In the recent Tracey case, the bad habit was to fold an instance of what’s known as question-begging—assuming as proved what is to be proved—into a statement of supposed historical fact intended to endow the maneuver with republican gravitas. The exposure caused by the use of “criminalized” occurred only because Tracey couldn’t bring himself to say something as simple and irrefutable as: “Since 1789, no action taken by a president while in office has led to a criminal indictment.” That would have kept him on solid ground. From there, he might have proceeded to argue his case: the historical uniqueness of the Trump situation isn’t based on historic kinds and degrees of criminality but on historically arbitrary moves by a politically motivated Justice Department.

Many would have problems with that argument. But my point here is that if the argument is weak, the weakness is emphasized by Tracey’s choice, as a writer, not to make the argument at all and instead try to sneak its unsupported conclusions into a statement about U.S. history—a statement whose factuality itself gets undermined in the attempt. If he has a point, that is, you wouldn’t know it.

On the history—former presidents’ dealing with law enforcement for alleged behavior while in office—I was trying to give Tracey some benefit, of some doubt, so at first I took his claiming that such behavior has never before been criminalized to mean something like presidents’ behavior in office has never before been treated as criminal by the legal system. That statement would be incorrect, though such instances have been very rare. But when coming back at me on Twitter with his signature boatloads of distracting ‘tude, Tracey insisted that it was plain that by “criminalized” he’d meant only and specifically the serving of indictments (though that isn’t what the word “criminalized” means), and then, as if to back up that usage, amid further futile attitudinizing, he sent me a dictionary definition of the word, which is not, of course, “to serve indictments” but “to turn (an activity) into a criminal offense by making it illegal,” thus making the opposite of his point.

With logic in full collapse, I perceived his rhetorical problem.

Anyway, when has presidential conduct in office been viewed by law enforcement as worth exploring for possible indictment? The first and probably most obvious case is that of Richard Nixon, who resigned because he was going to be impeached, and was then blanket-pardoned by his successor, Gerald Ford, because the former president now had exposure to indictment. According to the Supreme Court in 1915, a pardon in advance of a conviction involves an imputation of guilt, and accepting a pardon involves a confession of guilt. Clearly the idea that certain presidential actions taken while in office have never before been deemed illegal is absurd.

The only other example I can think of should be even more obvious, because something actually happened, but I think it’s been largely forgotten. After Bill Clinton left the presidency in 2001, the U.S. Attorney for the Southern District of New York—the Clinton appointee Mary Jo White, who had come under the aegis of John Ashcroft, Attorney General to George W. Bush—opened a major investigation into Clinton’s pardoning the big money guy Marc Rich, then a fugitive under indictment. The idea was that the pardon had effectively been purchased in the form of massive donations to the Democratic Party and the Clinton Library.

Nixon’s blanket pardon by Ford meant there hadn’t been a a way to indict him; Clinton’s specific pardon of Rich, post-indictment and preventing conviction, exposed Clinton to indictment for behavior when in office, and the probe soon expanded to include all of his pardons, with major subpoenas, hundreds of interviews, many witnesses, and two grand juries.

And yet, after all that, no indictments. The case was closed in ‘05.

Now we have indictments of a former president for conduct in office, and there may be more, and that’s a first. (Well, a sitting Vice President was once charged with murder—and then, no longer in office, tried for committing treason when out of office!). A lot of proclaiming on social media has it that the latest indictment, regarding January 6, is going to go one way, some say, or, say others, is going to go another way. The self-appointed armchair defense attorneys are raising supposedly slam-dunk obstructions to conviction that I have a feeling the prosecution has already, how shall I say, given a bit of thought to. And the armchair prosecutors are giving as good as they get. . . .

Nobody knows how it’s going to go, and so when BAD HISTORY resumes in September, you’ll have to look somewhere other than here for day-by-day parsing of the moment-to-moment. I’m sure that’ll be all too easy to find. Happy August.