WASHINGTON — Donald Trump will make history on Tuesday when he is booked and arraigned in a Manhattan courthouse as the first former president ever to face criminal charges. But historians are looking beyond his indictment with anxiety over what might follow.
With the former president refusing to negotiate a plea deal with prosecutors in New York, where he confronts state-level charges that are shielded from presidential pardons, scholars are struggling to identify an off-ramp for Trump from a criminal trial as he seeks a second White House term in 2024 – a high-stakes test of the rule of law that could upend the presidency itself.
The imagery and spectacle of Tuesday’s developments could produce indelible artifacts in the national memory – the fingerprinting of a former president, scenes of protest outside the court – but historians consider the drama of arraignment as less a significant milestone than the start of an uncertain, potentially destabilizing chapter in American politics, in which a politician could seek the nation’s highest office while facing the real possibility of jail time.
“The off-ramp is running out the clock on the legal system,” said Douglas Brinkley, a presidential historian and professor at Rice University. “It’s going to rain indictments on Trump this spring, and then he’s going to do what he’s made a lifetime of doing: obfuscate, delay, game the system to stall.”
Trump faces dozens of New York criminal charges related to a scheme in which he allegedly paid to silence women over extramarital affairs, shortly before the 2016 presidential election. He is also the target of an array of other state and federal investigations over his handling of classified documents and efforts to overturn the 2020 presidential election.
“His best bet to avoid prosecution that could land him in jail is to win the presidency in 2024,” Brinkley added. “It’s a mad race for Trump to Election Day.”
Few off-ramps to trial
It is not the first time that a current or former president has been accused of criminal behavior.
Warren Harding died while in office before facing likely corruption charges in what became known as the Teapot Dome scandal. Richard Nixon almost faced a grand jury indictment on charges of bribery, conspiracy, and obstruction of justice before receiving a presidential pardon from his successor, Gerald Ford. And Bill Clinton negotiated a deal with a special prosecutor to avoid charges in exchange for admitting he lied under oath over an affair with a White House intern.
Trump can always change his mind on negotiating a plea agreement. But he will otherwise have to secure a dismissal or acquittal in the courtroom, or win back the White House — a path that would force unprecedented questions on the immunity of the president.
“In some ways, this is a great moment — we say that no one is above the law and we’re going to see if that really applies,” said Peter Kastor, chair of the History Department at Washington University in St. Louis.
Whether a sitting president can be criminally charged over personal activity while in office remains an unsettled constitutional matter that was feverishly debated during Trump’s presidency, when a special counsel, Robert Mueller, investigated his alleged ties to Russia’s campaign to subvert the 2016 election. Legal experts are torn on the question, which has never been tested at the Supreme Court.
“He is not the first former president who lost after one term who ran again,” Kastor said, “but it is the prevailing legal ensnarement surrounding him that makes his third run for the presidency so peculiar.”
Jane Dailey, a professor of history at the University of Chicago, said she and her colleagues in the field have exchanged concerns in recent days over the optics of a former president being indicted on obscure charges that could be difficult for the public to justify or understand.
“A trial would be, like everything involving Donald Trump, a media circus — but you can’t not do it because of that,” Dailey said. “The real challenge is going to be whether these charges will be easy to explain to the American people.”
Trump is not expected to face jail time even if he is convicted on all the counts against him in New York. But the indictment itself could evolve in real time as the trial proceeds. Prosecutors could add charges, known as superseding indictments, if they believe Trump is attempting to obstruct justice or intimidate the court — a move that could change the calculus of the prosecutors and the presiding judge on what sentence is warranted in the event he is convicted.
Already, Trump has attacked the judge presiding over his arraignment and the Manhattan district attorney, Alvin Bragg.
The former president faces state and federal criminal charges from other investigations, as well.
In Georgia, prosecutors are considering whether Trump violated state election and anti-racketeering laws when he attempted to convince local officials to overturn the 2020 presidential election results there.
Jack Smith, a special counsel appointed by the Justice Department, is also considering whether Trump broke federal law by attempting to overturn the 2020 election and encouraging a mob of his supporters to storm the U.S. Capitol on Jan. 6, 2021, disrupting congressional certification of the results. In a separate probe, the special counsel is investigating whether Trump violated the law by mishandling highly classified national security documents.
“It’s certainly not unique for presidents to be struggling on the edges of the legal system,” said Andrew Rudalevige, a professor of government at Bowdoin College and author of “The New Imperial Presidency: Renewing Presidential Power after Watergate.”
“Where we could verge into that broader meaning of ‘unprecedented’ is if, as expected, other indictments come down around the Georgia election process, the handling of classified documents, and Jan. 6,” Rudalevige said. “If there is a critical mass of indictments that come through, will the Party of Lincoln, the GOP, continue to hitch its wagon to him?”
Another norm shattered
Bragg’s decision to seek charges against the former president last week marked a first in American history. But the power of that unprecedented move may be blunted in the historical record if additional indictments follow from other investigations in the coming months, supplanted by a larger story of a brash figure whose flaunting approach to the rule of law ultimately caught up with him.
“The fact of being the first president to be criminally indicted is going to be up there in the summary biography of Donald Trump. But it’s going to be part of this longer take on his very aggressive approach to the law, to governing,” Rudalevige said.
Allies of Trump warn that his trial will open a new chapter of political prosecutions. But of all the norms that have been shattered throughout Trump’s tenure in public life, the expectation that current and former presidents are immune from prosecution “doesn’t seem like the right one to stand firm on,” Dailey said, noting that elected leaders in other democracies such as Brazil, South Korea and Israel have faced legal accountability.
“Following the course of the law in the moment that we’re in seems the lesser of two evils — the right thing to do, and likely to be so in retrospect, just as many historians believe that Richard Nixon should have had to follow the course of the law,” Dailey said.
Trump is already in poor standing among presidential historians. A C-SPAN survey among them conducted in 2021 ranked Trump among the worst presidents since the country’s founding.
But the American people are much more forgiving with their presidents than historians are, Kastor said.
“One thing that we know is that immediate past presidents tend to cause very strong reactions — people tend to really like them or really don’t — and over time, they all tend to move to a middle zone of popularity,” Kastor said.
“What really matters isn’t what historians think,” he added. “What matters is what Americans think.”
