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President-elect Joe Biden will face enormous decisions on how to move the country forward when he takes office on Jan. 20. One of the most significant, and likely contentious, choices will be whether his administration should open criminal investigations into President Trump.
For the past four years, Trump has been shielded from prosecution by the office of the presidency, but those protections go away once he becomes a civilian again. In addition to an existing investigation into potential financial crimes in New York City, legal experts see a number of potential criminal acts for which Trump could be prosecuted at the federal level — including obstruction of justice, tax evasion, bribery and campaign finance law violations.
During the campaign, Biden said he wouldn’t instruct his Department of Justice to prosecute Trump, but also wouldn’t block it from charging him “if that was the judgment.” More recently, reports suggest Biden’s preference is to “move on” and focus on his plans for the country. Vice President-elect Kamala Harris said the DOJ would have “no choice” but to pursue charges against Trump during an interview last year when she was a presidential candidate.
No former president has been prosecuted in American history. Recent examples have trended in the other direction. Gerald Ford pardoned his predecessor, Richard Nixon. Barack Obama chose not to investigate the George W. Bush administration for allegations of the use of torture to interrogate terror suspects. “We need to look forward as opposed to looking backwards,” Obama said shortly before taking office in 2009.
Why there’s debate
Advocates for investigating and potentially prosecuting Trump say his actions threatened the stability of U.S. democracy and cannot go unpunished. They argue moving on for the sake of national unity would undermine the American ideal that no person is above the law and may set the stage for even more egregious criminality by presidents in the future.
Opponents say prosecuting Trump would set off a partisan circus that would further divide the country and make it impossible for Congress to get anything else done. Biden was elected on a message of healing a fractured nation. To do that, he must resist the pressure from within his party to settle old scores, they say. There are also legal questions as to whether some of Trump’s most controversial acts actually amounted to crimes that would result in federal conviction. State-level cases against Trump may have a much better chance of success, some experts argue.
Others say providing the American people with a full accounting of what actually happened across the entire government over the past four years is more important than pursuing criminal charges against a single person. A truth commission, a body that investigates the full breadth of the Trump administration’s actions but doesn’t necessarily pursue prosecutions, may be the best path forward for the country, they argue.
A major element hanging over potential future investigations into the president is the possibility that he may try to pardon himself before he leaves office. Constitutional law experts are split on whether a self-pardon would hold up in court, but if Trump attempted to do so, it would likely set off a lengthy legal battle that would put any federal prosecutions on hold until the issue was resolved.
A decades-long pattern of executive corruption must be broken
“Trump’s sordid administration is no break from history but a culmination of corruption indulged for decades. The only way the festering criminality in Washington will end is if the Biden administration breaks with history and holds Trump accountable. A failure to do so is a recipe for a new and even more criminal Trump gaining the White House in the future.” — Jeet Heer, the Nation
Future presidents would see themselves as immune if Trump isn’t punished
“He presided over a spree of self-enrichment and corrupt dealmaking without parallel in modern American history. To absolve him of his possible crimes would be to normalize his behavior — and set a distressing precedent in American political life for what voters should tolerate from their elected officials.” — Matt Ford, New Republic
The president isn’t above the law
“Although Biden is unlikely to issue a formal pardon to his predecessor, even deliberately ignoring Trump’s crimes would similarly signal that a president is not subject to equal justice under the law.” — Philip Allen Lacovara, Washington Post
Laying out Trump’s misdeeds would weaken his hold over the U.S. electorate
“The wholly committed identify with Trumpism as a cult of power. … The only way to destroy the cults of power is to smash their power. This is one reason why it is so important to prosecute Trump and his family once they are forced out of office. Not just to protect the rule of law but also to clarify the Trumpist cult that the Trump family and their enablers are not, in fact, above consequences.” — David Atkins, Washington Monthly
The American public expects Biden to hold Trump accountable
“Given how laden the Trump years have been with scandals and corruption, it’s been more of a crime scene than a presidency. To ignore all of that would be unconscionable, and Biden would risk alienating many of the 80 million voters who elected him — not to mention members of his own administration.” — Renée Graham, Boston Globe
All other remedies have failed to deter Trump
“In Trump’s case, I think that without a prosecution, you can’t really say that he’s suffered any consequences.” — Constitutional law professor Brian Kalt to The Hill
Investigations must go beyond just Trump
“The peril of focusing in on Trump himself is that it’s not clear to me at all that Trump himself was the problem. … The problem was all the people who enabled, and those people are still around. And so I hesitate to say that if Trump goes away and lives out his days on a golf course somewhere, muttering about how unfair it all was, that we have solved the larger problem of what it is to weaponize the entire executive branch against the law itself.” — Dahlia Lithwick, Slate
Trump may not have committed any federal crimes
“There is little evidence that Mr. Trump did commit crimes as president. A conviction, given what we know now, is all but impossible. The calls to investigate him echo the president’s own calls to investigate Barack Obama, Hillary Clinton and Joe Biden based on mere speculation — calls that most people, especially liberals, rightly condemned.” — Eric Posner, New York Times
Prosecuting Trump isn’t worth the incredible effort it would take
“I have no doubt that a competent Attorney General can charge Trump, Barr, and everyone else with a slew of federal crimes. But you know, and I know, that those prosecutions will take years of litigation — especially if there is a self-pardon. And do you really want to endure a decade of tweets about another witch hunt?” — Josh Blackman, Reason
Investigations would look like political retribution
“Fairly or not, it would look like ‘victor’s justice.’ Democrats condemned Trump for encouraging followers to chant ‘Lock her up’ about Hillary Clinton; it would be hard to justify “Lock him up” as a substitute, however much more Trump might deserve it.” — Doyle McManus, Los Angeles Times
Trump investigations would consume Biden’s administration
“He can set out to put the preceding administration behind bars — and watch Trump make the O. J. Simpson trial look quiet, obscure, and dignified — or he can focus on enacting the policies he wants passed by a Congress that will still probably be closely divided. But Biden can’t have both.” — Jim Geraghty, National Review
The country needs to move on from the Trump era
“Do we really need to continue the Trump era by going after him? Trump wants to be attacked because what happens? He becomes a martyr to his own people, to the Trumpniks, of which there are more than 70 million.” — Democratic strategist Hank Sheinkopf to Washington Examiner
A truth commission is the best way to fix the flaws in the U.S. political system
“Our normal institutions have failed. We need to understand how that failure happened, who is responsible, and who should face justice. When a plane falls out of the sky, we don’t just shrug our shoulders and say, ‘Gravity has consequences.’ We send in a team of experts to pick through the wreckage, figure out exactly what went wrong, hold people accountable, and make recommendations for future safety.” — Elie Mystal, the Nation
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