Indicted President Seeks Re-election: Historical Precedents
There are none. But Aaron Burr's murder indictments have some strange resonances.
Former President Trump is the first presidential candidate to run while under indictment. Eugene Debs, founder of Industrial Workers of the World, did Trump one better: in 1920, he ran for the presidency while serving a sentence for sedition. But Debs didn’t stand a chance of winning the office. Trump does.
So as always, no good parallels exist in our history for the latest grotesque situation that Trump’s put the country in, this time simply by taking a huge number of boxes of presidential papers home, stacking the boxes in plain sight all over his house, showing people the actual paperwork, informing both randos and investigators that he knows some of it’s classified, and refusing to surrender it when asked. People are arguing on social media and cable news about the indictment’s relative fairness, given other presidents known to have removed paperwork yet not indicted. Trump people act all aggrieved about a witch hunt and weaponization of the law. Anti-Trump people furrow their brows to demonstrate some specific legal difference here, though most of them aren’t lawyers, and the issue can only get worked out, someday, in a tedious trial, leading to a verdict, declaring this particular defendant, regardless of other people’s alleged behavior, guilty or not guilty.
I’m too am not a lawyer. I’m a student of the American past, and the difference I see here isn’t legal. When LBJ, for example, left the White House carrying certain incriminating documents, HE KNEW HE SHOULD HIDE THEM. LBJ had experience as a corrupt sleazebag. Trump’s a corrupt sleazebag too, but the main thing is that he’s a raging loon.
It’s not good, but the country has proven it can function with some degree of corrupt sleazebaggery in the presidency; the raging-loon thing, not so much. I know it’s part of his appeal, but if you don’t want your fave subjected to a witch hunt, maybe advise him not to dress up like a witch, cackle “I’m a witch, I’m a witch!” and boil up black-magic potions.
As for those on my side of the political divide who are busy celebrating: I'm going to get way out on a limb and predict unintended consequences. Bet with Homer and Sophocles and you can't go wrong.
Another thing I’ve seen online is a frantic search for “explainers” on how running for office under indictment is supposed to work. What are the constitutional provisions for this sort of thing? Can an indicted person really run for a party nomination and the presidency? If yes, why doesn’t the Constitution prohibit that? And so forth.
I'm rarely unwilling to criticize our founders, but I think we can give them a break for failing to write a constitutional measure contemplating our current situation. They didn’t even know the term “Reality TV.”
It’s true: Trump can go on running for office despite being indicted. If convicted and elected, he can probably serve both the office and a sentence. Who’s to say that can’t happen? and if it does, don’t blame the founders: blame the electorate, and whatever factors you identify as causing the electorate to be this way, and maybe the Electoral College (OK—you can blame the founders for that part).
The closest I can get in U.S. history to the latest Trump absurdity involves not a president but Vice President Aaron Burr, indicted for murder in two states while still actually serving his office. To get all kneejerk-MAGA about it, I think those charges were pretty bullshit. Having shot and killed Alexander Hamilton in a duel, Burr was charged with murder in New Jersey, where dueling was legal—that’s why they did it there—and in New York, though the shot wasn’t fired there (Hamilton did die in New York). The indictments were filed in absentia because Burr, guessing where things were headed, fled.
So there you have it: the sitting Vice President charged with murder, a fugitive from justice in two states, few even knowing where he is.
Trump is unprecedented. Weirdness, though, has precedents.
Some goofy counterfactual fun here. In real life, President Jefferson dropped Burr for the 1804 election—but all this is happening in 1803. Say Jefferson happens to die while Burr is on the lam. Does the vice president come in from the cold and demand to be sworn in as president, even as he’s arrested by the bickering agents of two states, each of which wants him for trial? With Jefferson dead, and Burr sworn in, might he be tried for murder even while serving as president? The Supreme Court hadn't yet ruled on whether something like that can happen, and these charges are criminal, not civil, filed before he ascended to the presidency. Maybe from jail or prison Burr even announces he's seeking a full term as president in the 1804 election: he is, after all, the incumbent now, with some strong party alliances, despite being locked up. Not everybody was all that bummed about the death of Hamilton.
I really don’t think he’d win, under the circumstances. But still. Reality TV couldn’t do it better.
The reality of history does it better. The real Burr, sick of hiding out, figured he’d have a better chance of avoiding extradition if he snuck back into Washington and just did his job. That meant presiding in the Senate over the impeachment trial of Supreme Court Justice Samuel Chase. “Now the felon is trying the judge!” people cracked. (Reality TV, no. Late-Night, yes.) Then he left Washington, his political career over, and started raising a private army with an idea of seizing Spanish North American holdings maybe? or establishing his own western empire? or what? For any and all of that activity, he was again charged, again in absentia, and again became a fugitive on the run from federal justice.
This time he was actually arrested. He was held on a treason charge. He was tried in what became the first media-politics-circus event in our history. . . .
But that’s a story for another time.