Hush Money, Election Interference, and Classified Documents: How To Hold Presidents Accountable in An Age of Uncertainty

America is headed into unprecedented legal territory. With the beginning of the criminal trial of former President Donald Trump in Manhattan over hush money payments to Stormy Daniels, the country will experience its first ever criminal prosecution of a former president. With three more trials pending, some of which may be held after the election, the Supreme Court may soon be called upon to rule on some tough constitutional questions. At the same time, President Joe Biden faces his own legal issues over his possession of classified documents, and potential impeachment proceedings over connections to his son Hunter Biden’s business dealings. 

On Monday, amid all of this legal and political confusion, the Miller Center brought together a panel of three experts on American politics and law to discuss the implications of current legal proceedings against Trump and Biden and the overall history of presidential accountability. These three were Tim Heaphy, lead investigator for the Select Committee on the January 6 Attack; Barbara Perry, professor at the Miller Center and co-director of its Presidential Oral History program; and Saikrishna Prakash, senior fellow at the Miller Center and professor of law at UVA Law School. The conversation was moderated by Micah Schwartzman, professor of law at UVA Law School and co-director of the Karsh Center. 

Schwartzman began topically,noting that the beginning of Donald Trump’s Manhattan trial coincided with the day’s panel. Perry then brought in a bit of audience interaction, asking everyone in the audience to recite the Oath of Office. As she noted, the idea of presidential accountability was of great concern to the Founding Fathers when they placed that oath in the Constitution. In fact, the lack of a real executive under the Articles of Confederation speaks to just how concerned they were about a return to the tyrannical monarchy of Great Britain. Under the current system, Perry explained, the main political means of holding the President accountable is impeachment, but there are numerous legal means as well. 

Schwartzman then asked Heaphy to give the audience a quick summary of each of the cases against Donald Trump. Heaphy summarized them as such:

1. The New York Trial: This trial is centered around hush money payments concerning an extramarital affair between Trump and pornographic film actress Stormy Daniels. Trump has been accused of funneling money through his lawyer, Michael Cohen, to prevent news of the affair from getting out. The actual legal means of prosecuting Trump stem from allegations of him falsifying business records to cover up said hush money payments.
2. The D.C. Trial: This is a federal case related to the January 6 attack on the United States Capitol. It involves four charges: conspiracy to obstruct—and the obstruction of—an official proceeding (the certification of election results), conspiracy to defraud the United States (by interrupting the regular electoral process), and divestment of civil rights (by attempting to deprive people of the right to a president they chose). In this case, along with the Georgia case, Trump has argued he holds immunity for any actions as president.
3. The Georgia Trial: Similar to the D.C. trial, the District Attorney of Fulton County has accused Trump and 18 other defendants of a racketeering conspiracy to prevent certification of Georgia’s election results through the submission of a fake slate of electors and pressure on Congress and executive officials. 
4. The Florida Trial: This trial relates to Trump’s holding of classified documents at Mar-a-Lago after his presidency. Trump has been charged with violations of the Espionage Act for his retention of the documents, while his obstruction of government attempts to regain the documents raised further legal concerns. 

In Heaphy’s view, the New York trial is the only one likely to conclude before the election, while the rest are essentially stuck in limbo, pending further court rulings on when they can begin. 

Schwartzman then asked Prakash whether or not he thought Biden would face criminal charges. Prakash noted that any prosecution was complicated by the fact that the Department of Justice policy states that they will not bring charges against a sitting president. In his view, the end result could depend on whether or not Trump wins the presidency, as he has promised some form of retribution for Biden. 

The conversation then moved to the question of whether former presidents can be prosecuted for crimes committed while in office. Prakash explained that while the Constitution does not specify many of the privileges and immunities of a president’s actions in office, the Courts have generally been sympathetic to presidents on their privileges, such as in cases during the Nixon administration, where, despite rejecting Nixon’s claim to holding onto Watergate tapes, the court specified that the president had other privileges and immunities. Heaphy explained that Trump’s legal team has a radical view of executive privilege, stating during January 6 Committee hearings that even a president ordering the assassination of a political rival could only be prosecuted after impeachment and removal from office. 

Nixon came up later in the talk as well, on the topic of pardon precedent. Perry explained that public opinion on President Gerald Ford’s pardon of Nixon has shifted over the years: first it was highly negative, then became more positive in retrospect, and is now seen negatively again in light of Trump’s legal issues. To Perry, Chief Justice Rehnquist’s description of the judiciary as the “jewel of the American crown”—a non-partisan institution that holds all accountable—showed why pardons are not necessarily the best solution. 

Afterwards, Schwartzman asked if impeachment was still a viable strategy in modern America, or if criminal prosecution was a better idea given the votes needed to remove an official from office. Prakash stated that there are three mechanisms of accountability in modern America: impeachment, criminal prosecution, and lawsuits. To him, lawsuits are the most successful method—but also only result in payouts, while impeachment is nearly impossible now, given how loyal parties tend to be to their presidents (even with noted party disloyalty, such as in Trump’s second impeachment, the two-thirds threshold requires defections on an unprecedented scale). Heaphy posited, however, that the standard for impeachment is far lower than in a criminal case. Perry, on the other hand, noted that Republicans had flip-flopped on the best means of prosecuting an ex-president, describing Mitch McConnell’s speech after Trump’s second impeachment stating that the legal system should instead be used on the former president.

Schwartzman eventually brought forth one of the central questions—how do we distinguish between legitimate prosecution and political persecution? To Prakash, the best solution would be to gather a bipartisan group of attorneys when a politician is brought to court and have them vote—with a two-thirds threshold for passage—on whether the case is appropriate. Heaphy, to the contrary, stated that prosecuting politicians is healthy for democracy, and so community interest should override accusations of partisanship. 

The audience then asked several questions. The first question asked what penalties Trump might receive if convicted in the D.C. trial, and specifically what would happen if he were convicted and then elected. The panelists agreed that while Trump could face prison time for the case, he would not be prohibited from assuming elected office. After he assumed office, the incoming Department of Justice would likely move to dismiss the case. The second question asked, on a related note, if Trump has the authority to pardon himself. Prakash explained that there was only one such occurrence in American history—Isaac Stevens, 19th-century territorial governor of Washington, once pardoned himself successfully—and that the Department of Justice would likely handle Trump’s legal issues for him anyways. Heaphy noted that while there was much discussion of Trump pardoning himself during the end of his presidency, nothing ever came of it.

Perry concluded by returning to the Founders and lamenting how confused they would be to know that we would eventually grapple with the possibility of a convicted felon becoming President of the United States. Nevertheless, that is where we stand today, and America may have to tread through new waters to get through it. If there is something positive to take away from the panelists’ grim analysis of current affairs, however, it is that in these moments where the functioning of American democracy becomes ambiguous, we learn to appreciate just how much effort it takes to keep it running.