In the last days of his presidency, Donald Trump may have been exposed to criminal prosecution after leaving the White House.
First, he repeatedly pressured a state official to “find” enough votes to nullify his defeat in Georgia in the 2020 elections. Next, he incited a violent pro-Trump crowd on Wednesday to invade and loot the US Capitol in a an unsuccessful attempt to prevent Congress from counting electoral votes, confirming the victory of President-elect Joe Biden. Five people died in the riot, including a Capitol police officer.
Even after repeatedly pushing the limits of presidential power and surviving an impeachment last year, his latest attempt to remain in power through intimidation and insurrection has dramatically increased the chances of him facing a criminal investigation and possibly the first prosecution of an ex. -president.
Legal experts say that only a criminal case could hold Trump accountable for his actions.
Although the Democratic-led House is heading for a possible second impeachment next week, the chances of a Trump Senate conviction – which would prevent him from running for office again – remain unclear and will almost certainly only occur after he leaves office. office.
“The facts currently known justify a criminal investigation of the president and others who were involved in inciting the Capitol insurrection,” said Mary B. McCord, a former Justice Department official and professor of law at Georgetown University. “Whether the charges are to be made will depend on the results of that investigation and the considerations of the prosecutor’s discretion, but responsibility is important in the face of such abuses of power and serious and dangerous privileges.”
But filing criminal charges against a former US president will take the country into unfamiliar territory.
The law against “seditious conspiracy” makes it a crime “two or more people … anywhere under the jurisdiction of the United States to conspire to overthrow, overthrow or destroy by force the United States government, … or by force to prevent, hinder or delay the enforcement of any United States law, or by force to seize, seize or possess any United States property. ”A conviction can result in fines or up to 20 years in prison.
Federal law also considers it a crime to fraudulently tamper with the “ballot count”. In a one-hour taped call on January 2, Trump pressured Georgia’s Secretary of State Brad Raffensperger to “recalculate” the votes to make him the winner.
The Justice Department has long held that a president cannot face criminal prosecution while in office because it would interfere with his duties. But constitutional experts say a former president does not have that immunity.
“I think it is clear that after a president leaves office, he can be tried for a crime he committed while he was president,” said University of Chicago law professor David A. Strauss. “The Constitution itself says that if he is accused, convicted and removed from office, he could be tried for a crime.”
The Supreme Court in the 1982 case of Nixon vs. Fitzgerald decided that a former president cannot be prosecuted for damages for his official actions – in this case, for the dismissal of a Pentagon whistleblower. But the judges did not question whether a former president is protected from being accused of criminal conduct during his term.
Until this month, many lawyers who were highly critical of Trump were opposed to suing him for actions he had taken up to that point in his term, such as allegations that he obstructed justice in special attorney Robert S. Mueller III’s investigation of Russian meddling in the 2016 election. They feared that such accusations would be seen by many as partisan and politically divisive.
But Trump’s use of his office to try to reverse his electoral defeat has crossed the line for many.
“We have a long history, developed more recently from the consequences of the Nixon administration, of keeping politics separate from federal law enforcement and not using the power of the federal government to investigate and punish political opponents. This rule needs to be taken seriously, ”said Elizabeth Wydra, president of the Constitutional Accountability Center, a progressive legal group in Washington. “But Trump’s illegality is so blatant and so threatening to our constitutional democracy that letting him escape responsibility could be even worse for the country.”
“A step in the right direction,” she said, “is Biden’s repeated commitment to keep the White House separate from Justice Department billing decisions.” Biden said the Justice Department will have an independent capacity to decide who will be prosecuted.
Randall Eliason, a former prosecutor who teaches at George Washington University, said he changed his mind about the wisdom of prosecuting Trump in the past two weeks.
“In general, we must be reluctant to suggest that a new government sue a president who is stepping down for actions taken during his term. This is done routinely in some other countries, but it has never been done here, ”he said. “If we are going to break that precedent, there must be a very compelling reason. I think Trump’s actions in inciting the riot meet that standard. They are not only outrageous and potentially criminal, but they have nothing to do with the legitimate exercise of their presidential powers. There is no risk of criminalizing mere policies or political differences ”.
Biden may not share this view. He said many times during the campaign that he wanted to look ahead, not back, and that he would leave any decision about prosecuting Trump to his attorney general. He seemed cold to Democrats’ calls for a second impeachment.
Last week, Biden appointed veteran judge Merrick Garland, a highly respected former federal prosecutor, to head the Department of Justice, which will presumably make any final decision about prosecuting Trump.
Congressman Adam B. Schiff (D-Burbank), a former federal prosecutor who led the Democrats’ impeachment in 2020, said the new attorney general will face a complex decision. “He will have to examine questions of evidence. And he will have to consider the seriousness of the offense and the need for the country to heal, ”he said in an interview on Saturday.
U.S. Attorney in Washington, Michael Sherwin, appointed by Trump, said his office is already mounting a criminal case around Wednesday’s attack, starting with those who broke into the Capitol.
“These are the people who obviously violated the Capitol, created violence and chaos there and then left,” he told reporters earlier this week. “But yes, we are looking at all the actors here, OK? Not just the people who entered the building. All options are on the table. “
Trump would have considered granting himself forgiveness for any crimes he committed. Jurists are divided over whether the president’s forgiving power extends that far. Many predict that such a move will backfire.
Trump would be seen as admitting that he committed serious crimes that require forgiveness. And the Department of Justice must not stand aside and allow such a precedent to go unchallenged because it may suggest that a future criminal-inclined president could steal billions, sell national secrets or even murder opponents and then go unpunished.
In fact, if Trump forgave himself, federal prosecutors would likely accuse him of a crime, some experts say. This would require judges and, ultimately, the Supreme Court to decide whether the president has absolute power to commit crimes with impunity.
Noah Bierman, editor of the Times team, contributed to this report.