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At noon on January 20, assuming he doesn’t have to be dragged out of the White House as an intruder, Donald Trump will take one last walk on the South Lawn, take his seat inside Marine One, and leave.
From then on, Trump’s boisterous term as president of the United States will end. But in one important respect, the challenge his presidency presents is just beginning: the prospect of him facing prosecution for crimes committed prior to taking office or while in the Oval Office.
“Never before has he had a president who has invited so much scrutiny,” said Bob Bauer, an attorney for the White House under Barack Obama. “This has been a very eventful presidency that raises tough questions about what happens when Trump leaves office.”
For the past four years, Trump has been shielded from legal danger by a Justice Department memo that rules out criminal prosecution of a sitting president. But the second he climbs into the presidential helicopter and vanishes over the horizon, all bets are off.
Manhattan District Attorney Cyrus Vance is actively investigating Trump’s business. The approach outlined in the court documents is “extensive and protracted criminal conduct at the Trump Organization,” including possible bank fraud.
A second major investigation by fearsome federal prosecutors for the Southern District of New York has already led to the conviction of former Trump attorney Michael Cohen. He pleaded guilty to campaign finance violations related to “hush money” paid to Stormy Daniels, the adult film actor who alleged an affair with Trump during the 2016 presidential campaign.
During the course of the indictment, Cohen implicated a certain “Individual 1,” Trump, as the mastermind behind the crime. Although the investigation was technically closed last year, the charges could be reviewed once Trump’s effective immunity is lifted.
It all points to a momentous and devilishly difficult legal challenge fraught with political dangers for the incoming Biden administration. Should Trump be investigated and possibly prosecuted for crimes committed before and during his presidency?
“It looks like the incoming administration will have to deal with some form of these issues,” said Bauer, co-author of After Trump: Reconstructing the Presidency. “The government is going to have to make decisions about how to respond, given the potential for it to become a source of division.”
Any attempt to hold Trump criminally responsible in federal proceedings would be the first in US history. No outgoing president has been persecuted in that way by his successor (Richard Nixon was spared the ordeal of Gerald Ford’s contentious presidential pardon).
Past presidents have tended to consider that it is better to look forward in the name of national healing than to look back at the failures of your predecessor. And for good reason, any prosecution would likely be lengthy and difficult, act as a major distraction, and expose the incoming president to accusations that he was acting as a small-scale dictator harassing his political enemy.
That a possible impeachment of Trump is being discussed is a sign of the exceptional nature of the past four years. Those who argue for legal action accept that there are powerful objections to going after Trump, but urge people to think about the alternative: the dangers of inaction.
“If you do nothing, you are saying that while the president of the United States is not above the law, in fact he is. And that would set a terrible precedent for the country and send a message to any future president that there is no effective control of his power, ”said Andrew Weissmann, who was lead prosecutor in the Mueller investigation that seeks coordination between Russia and Trump. in 2016. Campaign.
As the head of one of the top three teams reporting to special counsel Robert Mueller, Weissmann had a ring seat in what he calls Trump’s “lawless White House.” In his new book, Where Law Ends, he argues that the prevailing view of the 45th president is that “following the rules is optional and that breaking them has little, if not zero, cost.”
Weissmann told The Guardian there would be a price to pay if that attitude is not questioned once Trump leaves office. “One of the things we learned from this presidency was that our system of checks and balances is not as strong as we think, and that would be compounded if we did not hold it accountable.”
Bauer, who was an advisor to Biden during the presidential campaign but has no role on the transition team, is also concerned that a kind of double immunity will be established. Presidents cannot be prosecuted while in office under the rules of the Justice Department, but under such double immunity nor could they be prosecuted once they leave the White House in the name of “national cure.”
“And then the president is immune to the back and forth, and I think it would be very difficult to square with the idea that he or she is not above the law.”
Biden has made clear his lack of enthusiasm for prosecuting Trump, saying “it would probably not be very good for democracy.” But he has also made it clear that he would leave the decision to his designated attorney general, following the justice department’s rule of independence that Trump has repeatedly broken.
Other prominent Democrats have taken a more optimistic stance, adding pressure on the incoming attorney general to be aggressive. During the Democratic primary debates, Elizabeth Warren called for an independent task force to be established to investigate any corruption by Trump or other criminal acts in office.
Kamala Harris also took a stance that may haunt the new administration. The vice president-elect, who was asked by NPR last year if she would like to see the charges brought by the Justice Department, replied, “I think they would have no other choice and they should, yes.”
There are a number of possible ways the justice department could be forced to grapple with the question of whether or not to take on Trump. One would be through a still unknown revelation, after the appearance of new information.
Weissmann notes that the Biden administration will have access to a large number of documents that were previously withheld from Congress during the impeachment investigation, including files from the intelligence agency and the state department. The official communications sent by Jared Kushner and Ivanka Trump through their personal emails and messaging apps, an ironic move given the criticism that Hillary Clinton suffered from the Trump family in 2016 for using her personal email server, too they may be available for scrutiny.
But the two most likely avenues for conducting any criminal investigation would be related to Trump’s use of his presidential clemency power and alleged obstruction of justice. “Trump issued a series of pardons characterized largely by political interests,” Weissmann said.
Although the presidential power of forgiveness is extensive, it is not, as Trump has claimed, absolute, including the “absolute right” to forgive himself. You are not immune from bribery charges if you are found to have offered someone a pardon in exchange for their silence in a court case.
For Weissmann, the way Trump continually mocked his associates, including Roger Stone and Paul Manafort, with the promise of pardons amid federal prosecutions was especially egregious. “There may be a legitimate reason to grant someone a pardon, but what is the legitimate reason to grant a pardon other than to prevent that person from cooperating with the government?”
Perhaps the strongest evidence of criminal wrongdoing compiled against Trump concerns obstruction of justice. John Bolton, the former national security adviser, went so far as to say that for Trump, obstruction of justice to advance his own political interests was a “way of life.”
In his final report on the Russia investigation, Mueller presented 10 examples of Trump’s behavior that could legally be construed as obstruction. Although Mueller declined to say whether they met the standard for the charges (United States Attorney General Bill Barr suggested they did not, but gave no explanation for his thinking), he left them on display for any future prosecutors. federal will review them.
In one of those tougher incidents, Trump tried to thwart the special counsel’s investigation by ordering his White House attorney, Don McGahn, to fire Mueller. When that became public, he compounded the abuse by ordering McGahn to deny the truth in an attempt at cover-up.
Weissmann, who played a key role in gathering evidence against Trump in the Mueller report, said such obstruction goes to the heart of why Trump should be prosecuted.
“When the president, no matter who he is, obstructs a special counsel investigation, there have to be consequences. If you can criminally obstruct an investigation but don’t have to worry about being prosecuted, well then there is no point in appointing a special attorney. “
