The controversy surrounding the FBI's raid on Mar-a-Lago is not going away anytime soon. As more details come out, we know one thing for sure: If we are going to have investigations of presidents after their time in office, we are going to see more controversy about prosecutorial tactics in the years ahead. In thinking about how to engage in these investigations, history, as always, is a helpful guide, as investigating an administration even after the president has left office has actually happened many times.
As most high school history class students know, the presidency of Ulysses S. Grant (1869–1877) was wracked by scandals, most notably the Credit Mobilier railroad-pricing scandal. Grant's private secretary, Orville Babcock, was indicted in the affair. Grant provided testimony on his behalf, the first time a sitting president did so. Babcock was acquitted, but he left his White House job for another government position. One lasting result of the scandal was the initiation of civil service reforms and a move away from the spoils system.
Grant was also embroiled in a scandal after his presidency, but it was one in which he himself was swindled into bankruptcy by Ferdinand Ward, his partner in the banking firm of Grant and Ward. Ward was sentenced to 10 years in prison, serving only six. Grant's bankruptcy inspired him to write his well-regarded memoir, a project he finished as he was dying from cancer. Grant was not personally implicated in any of these scandals, but had Grant himself not been both blameless and above reproach, it is easy to imagine that our current era of post-presidency investigations could have begun a century and a half ago.
Another near miss took place with Warren G. Harding, who served from 1921 to 1923. Harding likely only escaped investigation in the petroleum lease Teapot Dome scandal by dying of a heart attack at age 57. So convenient was this turn that it prompted rumors that Harding's wife had poisoned him to avoid him being implicated in the affair. His unfortunate demise did not end the investigation, though. Harding's successor, Calvin Coolidge, appointed two special prosecutors to investigate Teapot Dome, Atlee Pomerene and Owen Roberts. (Roberts later would be appointed to the Supreme Court in 1930.) The fallout from the scandal included the resignation of Attorney General Harry Daugherty in 1924, the suicide of Daugherty aide Jess Smith in 1923, and the imprisonment of Interior Secretary Albert Fall in 1929 — six years after Harding's death on Aug. 2, 1923. Fall was the first Cabinet secretary in history to go to prison.
This scandal would have ripple effects as well. Sen. Thomas Walsh (D-MT) chaired the investigatory panel, to great acclaim. The Supreme Court ruled in the 1927 case McGrain v. Daugherty that Congress has the "right to compel witnesses to testify before its committees." And the Bureau of Investigations was found to have improperly spied on senators investigating the scandal, leading to an internal shake-up and the appointment of a new director, J. Edgar Hoover. He would remain at the helm of the Bureau of Investigations and its successor organization, the FBI, until 1972.
The new era of modern, and more frequent, investigations began during the administration of Richard Nixon. The famous investigation into the June 1972 Watergate burglary was highly publicized and led to impeachment hearings and Nixon's resignation in August 1974. But even with Nixon's departure from Washington, the congressional investigation continued. The House impeachment investigation ended on Aug. 20, 1974, nearly two weeks after Nixon resigned, with acceptance of the final report of the House Judiciary Committee.
Two weeks after that, new President Gerald Ford's pardon of Nixon created a firestorm of controversy, as many people did not want to foreclose the possibility of further investigations into Nixon's conduct. More than half of voters disapproved of the pardon, and Ford's own press secretary, Jerald terHorst, resigned in protest over it. The Senate angrily passed a resolution in opposition to additional Watergate pardons while the investigations of Nixon staffers were still occurring. The "Big Three," of chief of staff H.R. Haldeman, domestic policy adviser John Ehrlichman, and former Attorney General John Mitchell, were convicted in January 1975, nearly six months after Nixon's resignation. Furthermore, Congress enacted the Presidential Recordings and Materials Preservation Act of 1974 in December of that year.
While the pardon ended the possibility of any further investigation of Nixon, the necessity of the pardon itself demonstrates that there was a belief that investigations of Nixon would continue at the state or local level after he had resigned from office, something Ford thought would hurt the country. As Ford told a House committee after the pardon, "I was absolutely convinced then as I am now that if we had had [an] indictment, a trial, a conviction, and anything else that transpired after this, that the attention of the president, the Congress, and the American people would have been diverted from the problems that we have to solve. And that was the principal reason for my granting of the pardon." Ford lost a close election to Jimmy Carter in 1976, in part because of the unpopular decision to pardon Nixon.
Another investigation that lingered beyond the end of an administration was the Iran-Contra affair. While the congressional reports were issued in 1987, while Ronald Reagan was still in office, Independent Counsel Lawrence Walsh — the independent counsel came into being in 1978 following Watergate — continued his investigation after the Reagan administration ended. This meant that the specter of scandal lingered over the entirety of the administration of Reagan's successor and vice president, George H.W. Bush. Walsh even issued an indictment against Reagan Defense Secretary Caspar Weinberger a few days before Bush's 1992 reelection effort. The indictments angered Bush and his campaign manager, James A. Baker, who believed that Walsh's action stopped their momentum and contributed to Bush's election loss to Bill Clinton. Bush later angered Walsh in return by issuing six Christmas pardons for Iran-Contra-implicated officials, including Weinberger. Walsh did not complete his investigation until the beginning of the Clinton administration, in August 1993.
The Clinton administration prompted multiple independent counsel investigations. The most prominent one was the Whitewater investigation that uncovered Clinton's affair with White House intern Monica Lewinsky. That investigation, led by Ken Starr, turned Democrats off to the independent counsel concept — Republicans already disliked it — and both parties allowed the independent counsel statute to lapse in 1999. But neither the end of the independent counsel nor the end of the Clinton administration brought an end to investigations of Clinton. Clinton continued to be subjected to scrutiny after he was no longer in office, even accepting a five-year suspension of his law license and a $25,000 fine upon his departure from office in 2001. In November of that year, he voluntarily surrendered his ability to practice before the Supreme Court rather than face possible disbarment.
Even this was not the end of Clinton's post-presidential investigations. On Jan. 20, 2001, as one of his final actions as president, Clinton pardoned billionaire tax cheat Marc Rich. Rich's ex-wife had been a massive donor to Democratic causes, raising questions of a quid pro quo. The presidential pardon powers are nearly absolute, so it seemed as if the only cost to Clinton was in the court of public opinion. However, it was announced in 2016 that the FBI had previously conducted an investigation into Clinton's pardon. That investigation ran from 2001 to 2005. The four-year investigation was ended with no further action, but both the lengthy investigation and the mysterious revelation at the end of said investigation were unusual. The FBI director at the time of the revelation was James Comey, who had been the prosecutor in the original case against Rich. Before he became enemies with Donald Trump, Comey also raised the ire of the Clintons, who felt that his Oct. 28, 2016, letter to Congress about the investigation into Hillary Clinton's classified emails hurt her election prospects.
All of these incidents show that post-presidency investigations are part of the landscape of modern American politics but also that they typically have implications unanticipated by both the investigators and the investigated. The bipartisan unhappiness over the use and misuse of the independent counsel statute, which Congress let expire in 1999, means we are unlikely to see the return of that position and that the Justice Department will continue to head these types of investigations or tap special counsels to do so. The independent counsel and special counsel are similar in practice but different in appointment and in removals. Independent counsels, as laid out in the expired law, were appointed by a panel of judges at the behest of the Justice Department, while special counsels of today are directly appointed by the attorney general or leadership acting in that capacity. This means that special counsels are theoretically more responsive to the chain of command at the Justice Department, and to the president.
Regardless, it is not clear what the path forward is, other than a bipartisan agreement that proportionality and precedent should govern how to proceed in the future. Some kind of protection of ex-presidents from overzealous prosecutions seems to be in order, but it is hard to imagine finding a bipartisan agreement on the definition or scope of what "overzealous" is. As Robert Bennett, who has defended both Democrats and Republicans in the crosshairs of outside investigators, told me, "Theoretically, presidents should be treated the same way as everyone else, but realistically, people want to go after them for political reasons." As long as those political reasons exist, we are going to have disagreements over how we can fairly conduct investigations of citizens who happen to have formerly served as the nation's chief executive.