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Glenn Kirschner: Why the Trump Org Criminal Charges May Open the Indictment Flood Gates: A Matter of Precedent


July 07, 2021

Other countries prosecute their criminal leaders – Presidents, Prime Ministers, etc. For example, France, South Korea, South Africa and Italy have all prosecuted former leaders for crimes they committed while in office. However, in the United States there is no precedent for prosecuting a criminal former president.

Prosecutors generally don’t like to take maiden legal voyages, that is, bring a case that is unprecedented. Prosecutors like to have legal precedent as a blueprint. They like to have the comfort and cover of being able to point to an appellate court opinion – legal precedent – and say, “this has been done before, so I am not breaking new legal ground.”

However, logic and common sense dictate that, if you require precedent to indict a criminal former president then we could NEVER charge a criminal former president. Indeed, the way prosecutors create precedent is by doing something for the first time.

The real question is – is there anything prohibiting the prosecution of a former president for crimes he committed while in office. The answer is a definitive NO – there is no law, no statute, no appellate court opinion and no Supreme Court precedent prohibiting the prosecution of a former president.

This video discusses prosecutorial considerations in taking a maiden legal voyage – brining a novel case for which there is no legal precedent and relates example of when such novel legal cases have been brought in the courts of Washington, DC.

About Glenn Kirschner

Glenn Kirschner brings analysis and insight to legal issues of the day, drawing from his 30 years as a federal prosecutor, homicide prosecutor and Army JAG. Glenn is an NBC News and MSNBC legal analyst and teaches criminal law at George Washington University.

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