What should be done with a former president of the United States? The question is not trivial. The problem of what to do with a former president has much to do with how we want an incumbent president to act. Given the wide panoply of powers available to an American president, the question of how to structure that office and the social roles that a president (and future ex-president) will inhabit is an urgent one. Abusing the presidency’s powers—or failing to use them properly—carries not only national but international consequences. If there is good reason to believe that the conditions of a post-presidency affect the quality of presidential decisionmaking, then we need to consider how to structure the post-presidency in order to promote the best governance possible.
In this opening essay, I contend that we need both formal changes and normative pressures to change the former presidency to ensure that incumbent presidents remain on their best behavior. I review how expectations of what a post-presidency should be have changed, from one of discreet retirement to potentially energetic continued political engagement to an increasing emphasis on accumulating wealth and prestige. I also review what can be learned—and what I think cannot be learned—from U.S. history and more recent developments internationally.
My conclusion—that we need a mix of generous carrots and harsh sticks to incentivize good presidential behavior—may not satisfy everyone. At the very least, however, I hope that this essay, and the larger discussion, can frame the tensions and identify the specific questions that most require answering. We benefit both from a wave of new research into how leaders exit office, and what makes their exit smooth, and also from the urgency of watching longstanding norms about post-presidential decorum erode to the point of collapse—a problem that predates Donald Trump.
History and Development
“President emeritus” may not be an official job, but it is now—without the title—almost inescapably part of the U.S. constitutional design since the ratification of the Twenty-Second Amendment permanently limited presidential terms. Even though similar term limits in other countries have proven malleable, the difficulty of changing the U.S. constitution means that the U.S. restriction is unlikely to be lifted.[1]
This was not what the Framers of the Constitution intended. In Federalist 72, Alexander Hamilton argued that limiting the president’s eligibility for re-election would “deter him from the undertaking” of “extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them.” Worse, Hamilton wrote, term limits might tempt presidents “to peculation, and, in some cases, to usurpation.” Any “avaricious man, who might happen to fill the office” would be tempted “to make the best use of the opportunity he enjoyed while it lasted.” And an “ambitious man” who found himself “seated on the summit of his country’s honors” would be “more violently tempted” to try to prolong his power if the alternative were to give up all of the powers of the presidency. As Hamilton melodramatically concluded, “Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess?”
Hamilton’s answer was transparently that presidents should simply continue to serve in office under good behavior—that former presidents should retire, rather than be forced to leave. In such a case, no special provision would be necessary for former presidents. Yet two other reasons likely explained why the Framers believed that they required no special provision for ex-presidents. First, they assumed that Congress would be eager to keep watch over the president and punish any misdeeds. (Gouverneur Morris, for one, thought that Congress would be so keen to use the impeachment power to check the president that the executive would become overly dependent on the legislature.[2]) Second, as the historian Joanne Freeman writes, the Framers’ generation operated in a culture of politics shaped by considerations of honor to a degree almost unrecognizable to later generations.[3] Publius voiced these sentiments in passing: “Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity.”
For Washington and his immediate successors, this provided a neat solution to how to treat former presidents: they would retire to the fiction of being private citizens while retaining a position in society enhanced by their public service. The evolution of sharper, more democratic politics in the 1830s shattered this cozy arrangement. Presidents who had come of age in a less genteel era proved less willing to withdraw from public life after they had left the presidential chair. After losing to Andrew Jackson, John Quincy Adams threw himself back into politics as a spirited member of the House of Representatives, even dying in the Capitol building after casting a dramatic vote against a Mexican War resolution. Jackson himself remained a kingmaker in Democratic factional politics for a decade after leaving office. Martin Van Buren and Millard Fillmore actively participated in national politics, including by mounting separate (and disastrous) third-party bids. Even the impeached Andrew Johnson won re-election to the Senate. In the era of disunion and reconstruction, it made sense that being an ex-president carried neither an expectation that presidents would be reticent to engage in public affairs nor that they should expect any deference should they choose to do so.
Eventually, re-entering public life became the exception rather than the rule. William Howard Taft might serve as Chief Justice and Herbert Hoover might lend his administrative genius to government reorganization, but these unelected and narrow roles were far cries from the raucous nineteenth century precedents. The last former president to even try to re-enter political life was Gerald Ford, who considered accepting an offer from Ronald Reagan to become a vice-presidential candidate in 1980. Partly this was because the Twenty-Second Amendment barred many from seeking a third term. But many presidents, like Lyndon Johnson, Jimmy Carter, and George H.W. Bush, did not seek another election despite being eligible. And with the minor exception of Ford, none have tried to seek another elective office.
Instead, former presidents have long turned away from the public arena and toward tending their legacy—and bank accounts. For a lawyer like Grover Cleveland, that meant the possibility of heftier fees. Others followed a trail to riches blazed out of desperation by a nearly bankrupt Grant: the writing of a post-presidential memoir. Eventually, cashing in on the presidency became normalized. Richard Nixon and Gerald Ford accumulated decent fortunes, but more recent formers may have even earned dynastic wealth. Bill Clinton earned more than $100 million from speaking fees alone between 2001 and 2013. Reports indicate that Barack and Michelle Obama earned at least $60 million in a multi-book deal—an amount that, in combination with other ventures, made Vanity Fair estimate their post-presidential net worth at “super rich.”[4] American presidents may not have to appear in Pizza Hut commercials to fund their post-presidency, as Mikhail Gorbachev eventually chose to, but that is because they cater to a more elite—and lucrative—market.[5]
Incentives and Design
Today, the former presidency is institutionalized to a remarkable degree. Franklin Roosevelt’s donation of his papers (and model ship collection) to a presidential library launched a new post-presidential norm—that every president would have an institution dedicated to their legacy.[6] Presidential foundations grew alongside these institutions, originally to support them but eventually to supplant them. The William J. Clinton Presidential Library and Museum in Little Rock is a fine building, but the Clinton Global Initiative was the soul of the 42nd president’s life after the White House.[7] Such presidential foundations were controversial long before the 2016 campaign. George W. Bush’s foundation attracted scrutiny for its lack of transparency about its donors even while Bush 43 was still in office, for example. And under the Former Presidents Act, former presidents receive a federal pension, travel benefits, office space and expenses, and clerical support—benefits prompted by Harry Truman’s post-presidential financial difficulties, but which have continued to accrue despite former presidents’ apparent ease at providing for themselves.
The modern post-presidency, then, constitutes a role almost entirely opposite that of what the Framers envisioned when they drafted the Constitution. Not only has the culture of honor disappeared, but personal enrichment is now a taken-for-granted outcome for a former president. It’s worth considering what incentives such developments have provided contemporary presidents.
As one looks at the donor walls of a presidential library, featuring the names of prominent corporations, wealthy individuals, and foreign governments, one cannot help but think of Hamilton’s warnings about what an avaricious man might do as president. It also brings to mind the inadequacy of the standard political-science assumption that politicians are “single-minded seekers of re-election.”[8] As an analytic shorthand, that assumption does useful theoretical work. It enables theories in which ambition for office would lead candidates to curb their excesses, adopt policies that appeal to wide audiences, and subject politicians to the stern discipline of public attention, lest they be caught out by an ambitious rival pursuing the same goal.
That assumption is probably too strong, however, as legislators frequently pursue other goals than those directly related to their electoral fortunes.[9] Those other goals may be public-minded, but they can also be self-interested, including furthering a legislator’s own career, perhaps by cultivating good relations with an interest group or other constituency to maximize earnings after they leave office. As presidents think about how to provide for a legacy project—and a retinue—they will note that current practice not only tolerates but practically encourages raising giant sums from donors, including foreign governments, for such projects. And if it is hard to imagine your favorite recent president shying away from an appointment of a particular agency head or signing a particular executive order based on how it would affect a multi-million dollar gift from a donor, then let the blame fall on a chief of staff or aide or some other actor who might make such decisions without consulting the president in the misguided belief that they are just doing what the boss wants. The effect is the same—or, to be as generous as possible, the suspicion of the effect is the same.
The incentives provided by the contemporary system, then, conform more closely to Hamilton’s fears than to Hamilton’s designs. Furthermore, political scientists frequently contrast this sort of explanation based upon the behavior of a self-interested actor with explanations rooted in how politicians behave while seeking to maintain their good standing with the norms and customs of their society. Such considerations might make certain kinds of behavior that a rational actor might consider all but unthinkable simply because they are socially proscribed or stigmatized.
In that regard, it’s worth considering not only how personal post-presidential enrichment has become acceptable but specifically how Congress and other actors refuse to place even social opprobrium on fundraising for post-presidential activities. Critics like the Center for Responsive Politics and the Project on Government Oversight have repeatedly raised grave concerns about the potentially corrupting practice of fundraising for presidential libraries. Yet even their preferred reforms—requiring disclosure of donations—would fall far short of what is needed, as Anthony Clark has argued, because the problem is not necessarily the money itself but the acceptance that this is a normal, unexceptional part of the post-presidency.
Yet the most glaring problems with the modern post-presidency have little to do with money, and more to do with justice. When Richard Nixon resigned the presidency ahead of impeachment and certain removal by the Senate, he slunk back to California in disgrace. Yet over the next twenty years, he managed to both amass a tidy fortune and—something he valued even more highly—a strange new respect from D.C. insiders and other elites. As public understanding of his abuses of government power gradually faded, and “Watergate” became synonymous with the June 1974 break-in of the Democratic National Committee and the subsequent cover-up, Nixon became better regarded for his insights into world politics. In doing so, Nixon not only rehabilitated himself but also helped improve the image of his successor, Gerald Ford, who had pardoned him for any offenses against the United States that he had committed.[10]
Elite approbation of Ford’s pardon as an act of statesmanship helped cement the norm that former presidents would not be held formally accountable for any abuses of power they may have committed. Neither the Iran-Contra affair nor the 2003 Iraq war nor the use of torture nor the use of drone strikes nor any other controversy over the past four decades has led to formal sanctions on any former president—with the possible exception of Bill Clinton’s suspension of his law license as a result of his perjury in the Paula Jones case. Indeed, during the early years of the Trump administration, even many Democrats and liberals openly yearned for the Bush 43 administration as preferable to Trump. If Hamilton feared that a president might misuse his office for profit, remember that he also feared that he might misuse his office to prolong his hold on power—and a lack of post-presidential accountability cannot be the right prescription for that disease.
It’s hard to see how either a rationalist creating institutions to deter wrongdoing or a society seeking to provide norms to inhibit abuse of power would have settled on either these institutions or these norms as a way of constituting an ex-presidency if their objectives were to promote good behavior during a presidency.
Comparative Experience
As a scholar of international relations, I’m often wary of accounts of political behavior that draw only on one country’s experience. Over the past century, many other countries have developed democracies—many of which, some measures of democratic quality suggest, are as or more robust, free, and liberal than that of the United States. It seems reasonable to believe that the United States can learn from such countries and their experiences, as indeed other contributors to this symposium and I myself have argued.[11]
In particular, we should value experiences from other democracies because they can offer evidence that the U.S. case does not. The question of “what should we do with ex-presidents?” is a normative, value-laden one, to be sure. But it entails questions of “what happens if ex-presidents are prosecuted?” or “what career options are open for former leaders?” that can help us navigate the trade-offs that different options pose in the U.S. case.
Large statistical analyses reveal patterns that might reassure those who believe that former leaders should not be immune from prosecution or investigation for wrongdoing during office. The investigation of former democratic leaders is a relatively commonplace practice. Over a third of such leaders who left office between 1970 and 2011 faced investigation, and that presidential systems and governments with relatively less independent judiciaries are more likely to engage in such practices.[12] On the one hand, these factors suggest that such investigations may be politicized. Yet the fact that having an “insider witness” makes such investigations more likely also suggests that real abuses are being uncovered. Moreover, even an inquiry may be a significant event, as demonstrated by the suicide of South Korea’s former president Roh Moo Hyun following being questioned about accepting bribes.
Other studies similarly capture analysts’ intuitions that the range of options open to former leaders is wider than that which the eight postwar former U.S. presidents have engaged in. It is useful to know that half of democratic leaders continue in politics after leaving office, while one in three retires altogether and the balance are divided between work in nonprofit, business, public servant, and international organization occupations.[13]
Alas, the utility of such cross-national investigations is currently limited. Scholars are usually too quick to say that “more research is needed,” but I think it is fair to argue that we really do need more research to establish the general patterns and important exceptions about how leaders behave after leaving office. Although it seems fair to generalize that democracies can do with more post-office scrutiny of their leaders’ behavior in office than the United States does, prominent examples of politicized prosecutions, like that of Lula da Silva in Brazil, also demonstrate how such investigations can go awry.
Furthermore, finding general patterns in post-presidential contexts may not help us very much in understanding the U.S. case. As reluctant as I am to endorse most forms of U.S. exceptionalism, a former American president—especially in the postwar era—probably does constitute a unique kind of “former.” Almost all of the world leaders who have wielded powers in domestic and international spheres that are comparable to those of a postwar U.S. president are autocratic, like Xi Jinping, Vladimir Putin, or most Soviet leaders. These offer little usable precedents for specific guidance about how the U.S. should arrange its political culture.
By the same token, American presidents do not—and should not—have post-presidential career options like those in other democracies. In most economically developed democracies, the head of government is weaker in formal or actual terms, and is often an office separated from the role of head of state that the U.S. president also performs. None of them command the same level of military or economic sway over their own countries and others that the U.S. has. To take just one example among many, even just the secrets available to the president as the intelligence community’s chief customer could be of inestimable commercial value should a former president choose to engage in a commercial enterprise, like John Major or Gerhard Schroeder. At the same time, few other leaders would be so valuable for domestic or foreign interests to win over with donations or outright bribes.
Finally, it should be mentioned that these factors make it all but unthinkable that a U.S. president would become head of a major international organization, a path followed by many democratic leaders—like NATO Secretary General Jens Stoltenberg, a former prime minister of Norway. No international organization could credibly commit to treating all of its members equally were a former U.S. head of state holding the reins.
What Is to Be Done?
So we have a clear sense of the stakes, a good grasp of how current post-presidential institutions and norms pose real problems for U.S. governance, and some glimmers of specific policies that could address some of these issues. Yet we do not seem to have any easy answers to our original question: what should be done with a former president of the United States?
Yet clarifying the questions as we have done so leaves us, I believe, in a much better place to offer some concrete solutions. As I hope my discussion has demonstrated, an answer to that question must address both an institutional and a normative aspect, and they must both be aimed at reducing the temptation for a president to use their position selfishly. As Jacob Levy has recently argued, in fact, the social sanctions may be, in the long run, almost as effective as formal institutional ones.[14]
One way to achieve workable informal sanctions would be to intentionally and systematically reduce the symbolic size of presidents—and especially former presidents—in our political culture. Presidential libraries are not the only official symbols of the institutionalization of the cult of the presidency. The current vogue for naming capital ships of the U.S. Navy after presidents is not entirely new but has greatly accelerated relative to historical trends. Such practices should end, both to provide opportunities to honor other Americans or, as was long traditional, individual states of the Union, but also to simply reduce the prominence of individual presidents.
Separately, presidential foundations should be much more strictly controlled. This would go beyond requiring disclosure and would much more likely involve separately defining presidential foundations in the tax code, while placing strict limits on how their funds can be raised and spent. This might well mean that a Trump or Biden presidential library—either in or out of the federal system—would be the last, since such organizations might not be able to afford the grandiose buildings that these institutions have come to require. Yet that would not be a tragedy. The original problem that presidential libraries were meant to solve, the fear that presidential papers would be destroyed, sold, or otherwise lost, has been solved by the Presidential Records Act, and administrations’ records can be simply kept by the National Archives (where they would be, it should be mentioned, much more convenient for researchers). With presidential foundations greatly reduced, presidents would have much less reason to fundraise for their legacies. They might even decide to direct their efforts, and their donor lists, to established charities, universities, or other nonprofits, helping to build the sorts of intermediary institutions that Tocqueville among others believed strengthened democracies.
A more ambitious option would be to create post-presidential truth commissions for every president. At present, the official institutions of the post-presidency exist only to support and burnish the reputations of former presidents. Yet a strong democracy should be interested in uncovering a nonpartisan and common set of facts. Ordinarily, however, we only get inquiries aimed at this sort of fact-finding in the aftermath of disasters like the Challenger explosion or the terrorist attacks of September 11, 2001. Establishing a standing protocol—with funding, staff support, privileged access to classified records, and so on—by which official histories of presidents could be compiled on that same basis regardless of how popular or disgraced a president was upon leaving office would be a welcome step toward normalizing presidents not as demi-gods but as public servants. This commission could also be staffed with lawyers and investigators to determine if criminal misconduct has taken place—another step toward normalizing accountability for former presidents and their administrations.
A final option would go even further in formalizing the office of the former presidency, which, in honor of the pope emeritus, we might call this the “Benedict Option.” That would be to eliminate the current post-presidential perks—the pension, the office space, the franking—and instead create a bench of Presidents Emeriti. These would be actual federal positions to which only former presidents would be eligible. They would have a lifetime tenure on good behavior, a lavish (and inflation-adjusted) salary (several multiples of the presidential salary) along with provisions for their survivors, and a set of reasonable duties, such as chairing blue-ribbon commissions, appearances at ceremonial functions, representing the United States abroad, and so on. The only catch would be that presidents emeriti would be barred from accepting any further salary, gift, or benefit from any other source, as well as endorsing any candidate in any future election.
As a domestic, publicly funded, and elective version of the Mo Ibrahim Prize, such an office would balance the reality that a former president of the United States cannot just “return to their farm” à la Cincinnatus with the public’s interest in ensuring that conflicts of interest did not affect their public judgment. The aim would be not only to dissuade presidents from any decision that might further their personal enrichment but also to create a position so attractive that declining it would trigger an automatic social stigma as well.
Conclusion
Presidents’ views of the future structure their choices in the present. Often that is for the good, as when a historically minded president shies away from a rash course of action because of fears about how such an action might look to posterity. Yet the evolving nature of the post-presidency in the contemporary United States poses challenges. The norms and practices that promote responsible behavior have, I believe, been steadily weakening over the past several decades. Even before the Trump administration, the growing acceptability of post-presidential behaviors that would have scandalized not only the Framers but even public opinion from more recent eras has contributed to an atmosphere ripe for abuse.
Such abuses may have taken place, or we may have dodged those bullets as of yet. But the time to act is not after we find that systematic distortions of policy have transpired. Rather, we should act in anticipation of such problems in order to avoid them altogether. I look forward to a discussion with the other participants in this forum to see if we can improve on them—or at least advance the debate on this timely and important subject.
Notes
[1] “Breaking Presidential Term Limits in Russia and Beyond | Wilson Center,” accessed November 6, 2020, https://www.wilsoncenter.org/blog-post/breaking-presidential-term-limit….
[2] Max Farrand, ed., The Records of the Federal Convention of 1787, vol. II (New Haven, CT: Yale University Press, 1911), 53.
[3] Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (Yale University Press, 2002).
[4] Joe Pompeo, “‘It’s Got the Democratic Halo, but There’s This Bourgeois Element’: Meet the Obamoguls,” Vanity Fair, accessed November 6, 2020, https://www.vanityfair.com/news/2020/01/meet-the-obamoguls.
[5] Paul Musgrave, “Mikhail Gorbachev’s Pizza Hut Thanksgiving Miracle,” Foreign Policy (blog), accessed November 6, 2020, https://foreignpolicy.com/2019/11/28/mikhail-gorbachev-pizza-hut-ad-tha….
[6] Benjamin Hufbauer, Presidential Temples: How Memorials and Libraries Shape Public Memory (Univ Pr of Kansas, 2005).
[7] David A. Fahrenthold, Tom Hamburger, and Rosalind S. Helderman, “The inside Story of How the Clintons Built a $2 Billion Global Empire,” Washington Post, June 2, 2015, sec. Politics, https://www.washingtonpost.com/politics/the-inside-story-of-how-the-cli….
[8] David R. Mayhew, Congress: The Electoral Connection, vol. 26 (Yale University Press, 2004).
[9] Barry C. Burden, Personal Roots of Representation (Princeton University Press, 2007); John Kingdon, Agendas, Alternatives, and Public Policies (Boston: Little, Brown, 1984); Lisa Hager, “Are Members of Congress Simply ‘Single-Minded Seekers of Reelection’? An Examination of Legislative Behavior in the 114th Congress,” PS: Political Science & Politics 51, no. 1 (2018): 115–18.
[10] Paul Musgrave, “America Needs to Prosecute Its Presidents,” Foreign Policy (blog), accessed November 6, 2020, https://foreignpolicy.com/2020/09/29/america-prosecute-presidents-pardo….
[11] Lisa Anderson, “The Ex-Presidents,” Journal of Democracy 21, no. 2 (2010): 64–78; Musgrave, “America Needs to Prosecute Its Presidents.”
[12] Donna Bahry and Young Hun Kim, “Executive Turnover and the Investigation of Former Leaders in New Democracies,” Political Research Quarterly, 2020, 1065912920905640.
[13] Alexander Baturo, “Democracy, Development, and Career Trajectories of Former Political Leaders,” Comparative Political Studies 50, no. 8 (2017): 1023–54.
[14] “Honoring The Dishonorable, Part 2: The Dishonorable Living,” Niskanen Center, September 9, 2020, https://www.niskanencenter.org/honoring-the-dishonorable-part-2-the-dis….