At noon on January 20, assuming he doesn’t need to be dragged out of the White House as an invader, Donald Trump will take one last walk across the south lawn, take his seat at Marine One and disappear.
From that moment on, Trump’s turbulent term as President of the United States will end. But in one important aspect, the challenge presented by his presidency is just beginning: the possibility of being prosecuted for crimes committed before his inauguration or while in the Oval Office.
“You never had a president before you had invited so much scrutiny,” said Bob Bauer, Barack Obama’s White House lawyer. “This has been a very busy presidency, which raises difficult questions about what happens when Trump leaves office.”
For the past four years, Trump has been protected from legal threats by a Justice Department memorandum that excludes the criminal prosecution of an incumbent president. But the moment he boards that presidential helicopter and disappears on the horizon, all bets are off.
Manhattan district attorney Cyrus Vance is actively investigating Trump’s business. The focus outlined in the court documents is “extensive and protracted criminal conduct at the Trump Organization”, including possible bank fraud.
A second major investigation by the fearful federal prosecutors in the southern district of New York has already led to the conviction of former Trump attorney Michael Cohen. He pleaded guilty to campaign funding violations related to “secret money” paid to Stormy Daniels, the adult film actor who allegedly had an affair with Trump during the 2016 presidential campaign.
During the course of the prosecution, Cohen implicated a certain “Individual 1” – Trump – as the brain behind the crime. Although the investigation was technically closed last year, the charges can be revised once Trump’s effective immunity is lifted.
All of this points to an important and terribly difficult legal challenge, fraught with political dangers for the next Biden government. Should Trump be investigated and possibly prosecuted for crimes committed before and during his presidency?
“It looks like the next government is going to have to tackle some of these issues somehow,” said Bauer, who co-authored After Trump: Reconstruting the Presidency. “The government will have to make decisions on how to respond, given the potential for this to become a source of division.”
Any attempt to hold Trump criminally responsible in a federal lawsuit would be the first in the history of the United States. No president who left was persecuted in this way by his successor (Richard Nixon was spared the ordeal by Gerald Ford’s contentious presidential pardon).
Previous presidents have tended to consider that it is better to look ahead in the name of national healing than backward in the failures of their predecessors. And for good reason – any process would likely be long and difficult, would act as a major distraction and expose the next president to accusations that they were acting like a tin dictator chasing his political enemy.
The fact that a possible Trump case 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 they 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, he is in fact. 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 the main prosecutor in Mueller’s investigation that seeks coordination between Russia and Russia. Trump 2016 campaign.
As head of one of the three core teams that respond to Robert Mueller’s special council, Weissmann took a front row seat in what he calls Trump’s “lawless White House”. In his new book, Where Law Ends, he argues that the 45th president’s prevailing view is that “following the rules is optional and that breaking them has a minimal, if not zero, cost.”
Weissmann told the Guardian that there would be a price to be paid if that attitude was not contested when Trump stepped down. “One of the things we learned from this presidency was that our checks and balances system is not as strong as we thought and that would be aggravated if we were not held responsible.”
Bauer, who was Biden’s aide during the presidential campaign, but has no role in the transition team, is also concerned with establishing a kind of double immunity. Presidents cannot be prosecuted while in office under the rules of the Department of Justice, but under such double immunity, nor can they be prosecuted after leaving the White House in the interests of “national healing”.
“And so the president is immune to comings and goings, and I think it would be very difficult to reconcile the idea that he or she is not above the law.”
Biden made clear his lack of enthusiasm in prosecuting Trump, saying “it probably wouldn’t be very good for democracy”. But he also made it clear that he would leave the decision to his appointed attorney general, following the Justice Department’s independence rule that Trump has repeatedly destroyed.
Other prominent Democrats took a more optimistic view, increasing pressure for the new attorney general to be aggressive. During the Democratic primaries’ debates, Elizabeth Warren called for an independent task force to be created to investigate any Trump corruption or other criminal acts in office.
Kamala Harris also took a stance that may come to haunt the new government. The vice president-elect, asked by NPR last year whether she would like to see the charges brought by the Department of Justice, replied, “I believe they would have no choice and that they should.”
There are several possible ways in which the justice department could be forced to confront the issue of whether or not to face Trump. It would be due to a still unknown revelation, following the emergence of new information.
Weissmann points out that the Biden government will have access to a series of documents that were previously withheld from Congress during the impeachment investigation, including files from intelligence agencies and state departments. Official communications sent by Jared Kushner and Ivanka Trump through their personal emails and messaging apps – an ironic move due to criticism that Hillary Clinton suffered from the Trump family in 2016 for using her personal email server – may also be available for analysis.
But the two most likely ways to carry out any criminal investigation would be related to Trump’s use of his presidential pardon power and alleged obstruction of justice. “Trump issued a series of pardons largely characterized by his own political interests,” said Weissmann.
While the power of presidential pardon is extensive, it is not, as Trump said, absolute – including the “absolute right” to forgive yourself. He is not immune to bribery charges if he is found to have offered forgiveness to someone in exchange for his silence in a court case.
For Weissmann, the way Trump continually teased his associates – including Roger Stone and Paul Manafort – with the promise of pardons in the midst of federal lawsuits was especially striking. “There may be a legitimate reason to give someone forgiveness, but what is the legitimate reason to balance a forgiveness other than to prevent that person from cooperating with the government?”
Perhaps the most solid evidence of criminal irregularities compiled against Trump concerns obstruction of justice. John Bolton, the former national security adviser, went so far as to say that, for Trump, obstructing justice to promote his own political interests was a “way of life”.
In his final report on the investigation in Russia, Mueller exposed 10 examples of Trump’s behavior that could be legally interpreted as obstruction. Although Mueller declined to say whether they met the standard for the charges – US Attorney General Bill Barr suggested that he did not, but gave no explanation for his thinking – he left them in plain sight of any future federal prosecutor. to review them.
In one of the most egregious of these incidents, Trump tried to disrupt the special attorney’s own investigation by ordering his White House lawyer, Don McGahn, to fire Mueller. When this became public, he compounded the abuse by ordering McGahn to deny the truth in an attempt to cover up.
Weissmann, who played a key role in collecting evidence against Trump in the Mueller report, said that such an obstruction goes to the heart of why Trump should be prosecuted.
“When the president, no matter who he is, obstructs an investigation by a special lawyer, there must be consequences. If you can obstruct a criminal investigation, but you don’t have to worry about being prosecuted, well, then there’s no reason to appoint a special attorney. “