Stanford’s Robert Gordon on the History of Presidential Crimes and the Significance of the Trump Conviction

On Thursday, May 30, former president Donald J. Trump was convicted on 34 felony counts of falsifying business records in a case stemming from a payment that silenced a porn star. It was a historic first—the first former or sitting president to be tried and convicted of a felony crime. Here, Stanford Law School legal historian and ethics expert Robert Gordon discusses the history of presidential crimes and the significance of this conviction.

Statue - lady justice

Has a former president ever been tried and convicted of a felony?

No.  Richard Nixon was named as an unindicted co-conspirator by the grand jury investigating Watergate-related crimes, but was pardoned by his successor, Gerald Ford.

Aaron Burr, Jefferson’s Vice-President, might have been charged for killing Alexander Hamilton in a duel, but was not. He was indicted for treason, for (allegedly) conspiring to lead a rebellion against the republic, but was acquitted.

Spiro Agnew, Nixon’s Vice-President, was investigated for bribery, extortion, and tax fraud and eventually pleaded guilty to tax evasion.

Celebrating Bob Gordon's Taming the Past
Stanford Law Professor Robert Gordon

Bill Clinton faced possible charges of perjury and obstruction of justice for lying about his affair with Monica Lewinsky, but was never charged. He was disbarred in Arkansas.

You’re a legal historian as well as an ethics expert. What does this conviction of a former president say to you? How historic a moment is this?

It is immeasurably sad. But the conviction, historic though it is, is not the worst thing about this sordid case. The worst thing in my view is Trump’s persistent and repeated attacks on the judge, the judge’s family, the jury pool, the motives of the prosecutor, and—just as baselessly—on Biden and the Department of Justice, who of course had nothing to do with bringing this indictment. In order to explain and excuse his conviction, Trump has mobilized his enormous and credulous following to believe that all the regular institutions of justice, though they have gone out of their way to guarantee him due process and a fair trial, are hopelessly politicized and corrupt—in the same way he has encouraged them to believe that all elections (or at least, those that produce Democratic winners) are corrupt. The damage to respect for institutions and the rule of law is incalculable.

Does a federal conviction prevent Trump from holding public office?

Nope. The Constitution says you have to be 35, and a native-born citizen, and that’s it.  He may not be able to vote, if the conviction is not reversed on appeal by November, but he can run, and serve.

What concerns, if any, do you have about this trial and conviction? Do you worry about the courts being used for political vengeance? Or was this case so compelling that it needed to be pursued?

Unlike the three other pending cases against Trump—the case of the unlawfully taken and retained classified documents, the case of attempting to obstruct the electoral count, and the case of trying to influence Georgia officials to “find” enough votes to alter that state’s electoral results—this case didn’t have to be brought. Bragg could reasonably have decided to give it a pass. But, as it turns out, the trial was quite useful for what it told the public about the defendant. Trump made almost no real attempt to defend himself from the charges on the merits. Instead, he attacked the process and personnel.

A preeminent legal historian, prolific scholar, and gifted teacher, Robert W. Gordon’s expertise in American legal history, evidence, the legal profession, and law and globalization spans four decades, his influence on generations of lawyers and legal scholars incalculable. He has written extensively on contract law, legal philosophy, and on the history and current ethics and practices of the organized bar.