Third indictment of Donald Trump is a first over the behavior of a sitting president

Donald Trump’s first two criminal indictments could land him in prison. His third could change the presidency itself.

In accusing Trump of conspiring to overturn the 2020 election, Special Counsel Jack Smith is alleging the former president acted criminally while still in office — a novel argument distinct from the other indictments facing Trump that could set historic legal precedent on presidential power.

Trump was indicted on Tuesday on accusations of a broad conspiracy to overturn the 2020 presidential election results, facing charges of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempting to obstruct an official proceeding, and conspiracy against rights.

“The defendant lost the 2020 presidential election. Despite having lost, the defendant was determined to remain in power,” the indictment reads. “The defendant’s knowingly false statements were integral to his criminal plans.”

READ FOR YOURSELF: What the Indictment says

Experts say the case could put a foundational American legal theory to the test: that no one is above the law. A criminal conviction could set the record that, once leaving office, presidents can be held criminally liable for their actions in the White House.

“This indictment is a step farther because it’s a different kind of crime,” said Andrew Rudalevige, a professor of government at Bowdoin College and author of “The New Imperial Presidency: Renewing Presidential Power after Watergate”.

“We’ve never quite tested that no person is above the law, to this degree,” Rudalevige said. “It’s a harder case to bring and to prove, but also one that goes more fundamentally to the basic worry over whether former President Trump adheres to democratic principles.”

Other former presidents avoided charges

The Justice Department has long said that sitting presidents are protected from criminal prosecution while in office, arguing that a trial would undermine their capacity to perform the work of the executive branch.

But other former presidents, including Richard Nixon and Bill Clinton, faced active threats of criminal indictment for their activities in the White House after leaving office. Both avoided charges in settlements that spared the country the trauma of a trial, Rudalevige said.

Trump’s legal team has argued that he was acting consistent with the duties of his office by questioning the integrity of the 2020 election, and that Trump cannot be prosecuted for simply performing those presidential duties.

READ MORE: Trump indicted by Jan. 6 grand jury

But experts say that legal precedent suggests Trump is vulnerable.

A grand jury named Nixon an unindicted co-conspirator for his activities as president related to the Watergate scandal, exposing him to charges after he left office. Gerald Ford’s decision to pardon him was predicated on an assumption that Nixon faced criminal exposure after leaving office. And in 1997, during the Clinton administration, the Supreme Court ruled that a sitting president is not immune from civil lawsuits over activity unrelated to the duties of the presidency.

In March, the Justice Department urged a federal appeals court to reject Trump’s claim that he is immune from charges related to Jan. 6, as the former president faces civil lawsuits from individuals harmed in the riot.

“Incitement of imminent private violence,” the Justice Department argued, falls outside the scope of a president’s official duties.

“What he’s been charged with so far is serious, but these new charges are of another order of magnitude,” said Peter Kastor, chair of the History Department at Washington University in St. Louis. “This is the first time where you have charges levied against a president for refusing to surrender office.”

It is a different prosecutorial challenge than Smith is facing in his first case against Trump, which focuses on Trump’s handling of classified documents after leaving the White House.

When Trump was served his first criminal indictment in New York this past spring, local prosecutors, too, focused their case on his activities before becoming president, charging him with falsifying business records to cover up an alleged extramarital affair in the days before and after the 2016 election.

Trump has argued he has immunity

Trump has personally argued he has “total immunity” in matters related to the 2020 election. In a monthslong campaign to overturn the vote, Trump pressured local lawmakers to change state vote counts and attempted to replace official representatives to the Electoral College.

On Jan. 6, 2021, a violent mob stormed the U.S. Capitol as Congress was certifying the election results, after Trump had encouraged his supporters to convene in Washington and march on Capitol Hill. Hours passed before he told the rioters to go home.

In March, the Justice Department urged a federal appeals court to reject Trump’s claim that he is immune from charges related to Jan. 6, as the former president faces civil lawsuits from individuals harmed in the riot. “Incitement of imminent private violence,” the Justice Department argued, falls outside the scope of a president’s official duties.

Conservative legal scholars are divided over whether a president is broadly shielded from prosecution over their activities while in office after leaving the White House. But some of Trump’s own former attorneys, who represented him during his first impeachment, say that Smith’s latest charges are serious.

“The fact that Trump was the sitting president and that he was impeached and acquitted of January 6 related charges does not preclude an indictment — if there is evidence of actual crimes, not the type of made up non-crimes that were the basis for the New York charges,” said Alan Dershowitz, a former Harvard Law School professor who defended Trump in his first Senate impeachment trial.

READ MORE: White House or jail? Historians see Trump arraignment as start of an uncertain chapter

Some of the charges facing Trump are so serious that a conviction could disqualify him from ever holding office again — yet another untested legal challenge, said Robert Ray, also a member of Trump’s defense team during his first impeachment trial.

“The fact that it occurred while he was in office would be significant if he were still in office, as it would also constitute an impeachable offense. But, of course, he’s no longer in office,” Ray said.

“So I don’t think it is of much significance other than that the charges are serious, are brought by the federal government and would – if he were found guilty, sentenced and a final judgment entered after all appeals were exhausted — disqualify him from holding federal office.”

Ray was the special counsel investigating former President Bill Clinton as he exited office, and nearly brought criminal charges against him for perjury over making false statements about his affair with White House intern Monica Lewinsky. A last-minute deal, which included a full admission of guilt from Clinton, spared the former president from an indictment.

Trump is expected to argue in court that he was operating on a genuine belief that the election was fraudulent — despite all evidence to the contrary — and therefore acting within his rightful powers as president. A senior aide to Trump declined to comment on the defense team’s burgeoning legal strategy.

“No matter how wrong he was, it was plausible for him to conclude that his oath to defend the Constitution enabled and even required him to fight against what he believed to be fraudulent election results,” said David Rivkin, a conservative constitutional lawyer who served under former Presidents Ronald Reagan and George H. W. Bush.

“Trump’s actions were arguably within the ‘outer parameter’ of his presidential responsibilities,” Rivkin said. “There are, of course, people who assert that Trump really did not believe that fraud tainted the 2020 presidential elections, and was just making this up to advance his political fortunes. Yet it is virtually impossible to establish what someone believes or does not believe.”

In response to the indictment, Trump said Smith was engaged in “prosecutorial misconduct,” and called the charges “fake.” But Smith said Trump knew very well what he was doing.

“The defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won,” the indictment reads. “These claims were false, and the defendant knew that they were false.”

Kastor, of Washington University, said that a trial and conviction could set a new legal precedent on presidential power — but that the country’s acceptance of that new standard could take a generation.

“Americans will be divided about it. They already are. And it’s going to take decades to get this settled, one way or another.”

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