How real is the threat of prosecution for Donald Trump post-presidency?
Photo: Andrew Harnik / AP
Donald Trump will take one last stroll down the South Lawn at noon on Jan. 20, take his place on Marine One, and be gone, provided he doesn't need to be dragged out of the White House as an intruder.
From that moment on, Trump's wild tenure as President of the United States will be over. However, one important aspect of his presidency's challenge has only just begun: the possibility of him being prosecuted for crimes prior to taking office or in the Oval Office.
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"You've never had a president invite so much scrutiny," said Bob Bauer, Barack Obama's White House attorney. "This has been a very eventful presidency that raises difficult questions about what will happen if Trump leaves office."
For the past four years, Trump has been shielded from legal threats by a Justice Department memo excluding prosecution of a sitting president. But the second he gets on the presidential helicopter and dives into the horizon, all bets are closed.
Manhattan District Attorney Cyrus Vance is actively investigating Trump's business relationships. The focus described in court documents is on "extensive and lengthy criminal conduct in the Trump organization," including possible bank fraud.
The government will have to make choices about how to respond
A second major investigation by the fearsome federal attorneys of the southern borough of New York has already led to the conviction of Trump's former attorney Michael Cohen. He pleaded guilty to campaign funding violations related to the "hush money" given to Stormy Daniels, the adult film actor who alleged an affair with Trump during the 2016 presidential campaign.
In the course of the prosecution, Cohen implicated a certain "Individual 1" - Trump - as the thought leader behind the crime. Although the investigation was technically closed last year, the charges could be overturned once Trump's effective immunity is lifted.
All of this points to a significant and diabolically difficult legal challenge that poses a political threat to the future Biden government. Should Trump be investigated and possibly prosecuted for crimes before and during his presidency?
"It looks like the new administration will have to deal with some form of these issues," said Bauer, co-author of After Trump: Reconstructing the Presidency. "The government will have to make choices on how to respond, given the potential for a source of division."
Richard Nixon points to the door of a helicopter after leaving the White House after resigning over the Watergate scandal on August 9, 1974. Photo: Bill Pierce / Time & Life Pictures / Getty Image
Any attempt to hold Trump criminally accountable in a federal prosecution would be a first in US history. No outgoing president has ever been so persecuted by his successor (Richard Nixon was spared the test of Gerald Ford's controversial pardon for the president).
Past Presidents have felt that it is better to look forward in the name of national healing than backward at the mistakes of their predecessor. And for good reasons - any law enforcement would likely be lengthy and difficult, would be a major distraction, and expose incoming presidents to charges of acting like a tinpot dictator pursuing their political enemy.
If you do nothing, you are saying that while the President of the United States is not above the law, he is
The fact that a possible Trump prosecution is being discussed at all is a sign of the extraordinary character of the past four years. Those who advocate legal action accept that there are strong objections to Trump, but urge people to ponder 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 really 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, as the lead prosecutor in the Mueller investigation, investigated the coordination between Russia and Trump's 2016 campaign.
As head of one of the three main teams that responded to special adviser Robert Mueller, Weissmann had a seat on the ring 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 these rules is minimal, if not zero, cost".
Weissmann told the Guardian that there would be a price to be paid if that stance was left unchallenged 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 thought it would be and that would be aggravated if we didn't hold it accountable."
As a candidate, Vice President-elect Kamala Harris said the Justice Department would have no choice but to bring charges against Donald Trump if he leaves office.
Bauer, who was an advisor to Biden during the presidential campaign but has no role in the transition team, also fears that some kind of double immunity could be established. Presidents cannot be prosecuted during their term of office under the rules of the Justice Department, but under such double immunity. Nor can they be prosecuted for leaving the White House in the interests of "national healing."
"And so the president is immune to the coming and going, and I think that would be very difficult to reconcile with the idea that he or she is not above the law."
Biden has made it clear his lack of enthusiasm for prosecuting Trump, saying it is "probably not very good for democracy." But he has also made it clear that he would leave the decision to his appointed attorney general, under the Justice Department independence norm that Trump has repeatedly destroyed.
Other prominent Democrats have taken a more bullish stance, pressuring the incoming attorney general to be aggressive. During the primary Democratic debates, Elizabeth Warren called for an independent task force to be established to investigate Trump corruption or other crimes in office.
Kamala Harris also took a stance that the new administration might pursue. The vice-president-elect, who was asked by NPR last year if she would like to see the Justice Department's indictment, replied, "I believe they wouldn't have a choice and they should, yes."
Trump issued a series of pardons, mostly of political self-interest
There are several ways the Justice Department could be forced to wonder whether or not to take over Trump. One would be through an as-yet-unknown revelation after new information emerges.
Weissmann points out that the Biden administration will have access to a plethora of documents previously withheld by Congress during the impeachment investigation, including files from the secret service and the State Department. Official communications sent by Jared Kushner and Ivanka Trump through their personal email and messaging apps - an ironic move given the flak that Hillary Clinton suffered from the Trump family in 2016 for using their personal email server may also be available for review.
However, the two most likely avenues for prosecuting criminal investigations would relate to Trump's use of his presidential pardon and alleged obstruction of justice. "Trump has issued a number of pardons that are largely shaped by political self-interest," said Weissmann.
While the president's pardon is extensive, it is not, as Trump has claimed, absolute - including the "absolute right" to pardon yourself. He is not immune from a bribe if it is found that he offered someone an apology in return for his silence in a lawsuit.
Protesters display a banner asking Donald Trump to apologize for his former campaign advisor Roger Stone as the presidential motorcade drives through West Palm Beach, Florida in March.
For Weissmann, the way Trump teased his employees - including Roger Stone and Paul Manafort - repeatedly with promises of pardons in the middle of federal persecution, was particularly outrageous. "There may be a legitimate reason to apologize to someone, but what is the legitimate reason to dangle an apology other than to prevent that person from working with the government?"
Perhaps the most solid evidence of criminal misconduct 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 further his own political interests was a "way of life".
In his final report on the Russia investigation, Müller provided 10 examples of Trump's behavior that could legally be interpreted as an obstacle. Though Mueller refused to say whether they met the standard for indictment - U.S. Attorney General Bill Barr did not suggest it but gave no explanation for his thinking - he kept them in sight of a future federal attorney.
In one of the worst of these incidents, Trump attempted to circumvent the special investigation himself by ordering his White House attorney, Don McGahn, to fire Mueller. When that went public, he exacerbated the abuse by ordering McGahn to deny the truth in order to cover up.
Weissmann, who played a key role in gathering the evidence against Trump in the Mueller report, said such obstruction is the reason Trump should be prosecuted.
“If the president, whoever he is, obstructs a special investigation, there must be consequences. If you can criminally obstruct an investigation but don't have to worry about ever being prosecuted, there is no point in ever appointing a special lawyer. "
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