At noon on January 20, assuming he doesn’t need to be dragged out of the White House like an intruder, Donald Trump takes one last walk down the South Lawn, takes a seat in Marine One and is gone.
From then on, Trump’s impetuous term as President of the United States is over. But in one important aspect, the challenge of his presidency has only just begun: the possibility of him being prosecuted for crimes committed before taking office or in the Oval Office.
“You’ve never had a president who has asked for so much criticism,” said Bob Bauer, counsel for the White House under Barack Obama. “This was a very eventful presidency that raises hard questions about what will happen if Trump leaves office.”
For the past four years, Trump has been protected from legal dangers by a prosecution memo that rules out criminal charges against a sitting president. But as soon as he boards that presidential helicopter and disappears off the horizon, all bets are off.
Manhattan district attorney Cyrus Vance is actively investigating Trump’s business dealings. The focus described in court documents is “extensive and long-term criminal behavior at the Trump Organization,” including possible bank fraud.
A second major investigation by the formidable federal prosecutors of New York’s Southern District has already led to the conviction of former Trump attorney Michael Cohen. He pleaded guilty to campaign funding violations related to the “hush money” paid to Stormy Daniels, the adult film actor who claimed an affair with Trump during the 2016 presidential campaign.
In the course of the prosecution, Cohen has implicated a particular “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 diabolically difficult legal challenge fraught with political danger to the coming Biden government. Should Trump be investigated and possibly prosecuted for crimes committed before and during his presidency?
“It seems the new administration will have to address some form of these issues,” said Bauer, who is co-author of After Trump: Reconstructing the Presidency. “The government will have to make decisions about how to respond, given the potential of it becoming a source of division.”
Any attempt to hold Trump criminally responsible in a federal prosecution would be a first in US history. No existing president has ever been pursued in such a way by his successor (Richard Nixon was spared the ordeal by Gerald Ford’s controversial presidential pardon).
Previous presidents have tended to feel that it is better to look ahead in the name of national healing than to look back at their predecessor’s shortcomings. And for good reasons – any prosecution would likely be long and difficult, act as a huge distraction and expose the president-to-be to charges that they were acting like a dictator pursuing their political enemy.
The fact that there is any talk of a possible Trump prosecution at all is a sign of the exceptional nature of the past four years. Those advocating legal action accept that there are strong objections to going after Trump, but urge people to consider the alternative: the dangers of doing nothing.
“If you don’t do anything, you say that while the President of the United States is not above the law, 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 over their power, ” said Andrew Weissmann, who was a lead prosecutor in the Mueller investigation into the coordination between Russia and Trump. in 2016. campaign.
As head of one of the three main teams accountable to Special Counsel Robert Mueller, Weissmann had a ringside 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 breaking them has minimal, if not zero, costs.”
Weissmann told the Guardian that a price would have to be paid if that stance remains 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, and that would get worse if we didn’t hold him to account.”
Bauer, who was an adviser to Biden during the presidential campaign but has no role on the transition team, is also concerned that some sort of double immunity will emerge. Presidents cannot be prosecuted while in office under the rules of the Justice Department, but neither can they be prosecuted under such dual immunity after leaving the White House for the sake of “national healing.”
“And so the president is immune to comings and goings, and I think that’s really hard to reconcile with the idea that he or she is not above the law.”
Biden has made it clear his lack of enthusiasm to prosecute Trump, saying it “probably wouldn’t be very good for democracy.” But he has also made it clear that he would leave the decision to his appointed attorney general, according to the standard of judicial independence that Trump has repeatedly shattered.
Other prominent Democrats have taken a more optimistic position, putting pressure on the new Attorney General to be aggressive. During the Democratic primary debates, Elizabeth Warren called for the creation of an independent task force to investigate any Trump corruption or other criminal acts in office.
Kamala Harris also took a position that could harass the new government. The vice-president-elect, who was asked by NPR last year if she would like to see charges brought by the Justice Department, replied, “I believe they should not have a choice and they should.”
There are several ways that justice could be forced to address the issue of whether or not to include Trump. One could be through an as yet unknown revelation, after the emergence of new information.
Weissmann points out that the Biden administration will have access to a wealth of documents previously withheld from Congress during the allegation investigation, including files from intelligence agencies and state departments. Official messages from Jared Kushner and Ivanka Trump through their personal emails and messaging apps – an ironic move given the anti-aircraft defenses Hillary Clinton underwent in 2016 for using her personal email server – may also become available for investigation.
But the two most likely avenues for conducting a criminal investigation would involve Trump’s use of his presidential pardon and alleged obstruction of justice. “Trump has granted a series of pardons largely marked by political self-interest,” Weissmann said.
While the presidential pardon power has been extensive, it is not, as Trump has claimed, absolute – including the “absolute right” to pardon oneself. He is not immune from bribery charges if it is found that he has pardoned someone in exchange for their silence in a court case.
To Weissmann, the way Trump constantly teased his associates – including Roger Stone and Paul Manafort – about the promise of pardon during federal prosecutions was particularly blatant. “There may be a legitimate reason for pardoning someone, but what is the legitimate reason for dangling from a pardon other than to keep that person from cooperating with the government?”
Perhaps the most solid evidence of criminal misconduct that has been gathered 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 Russia investigation, Mueller explained 10 examples of Trump’s behavior that could be legally construed as obstruction. Although Mueller declined to say whether they met the standard for indictments – the U.S. Attorney General, Bill Barr, suggested not, but gave no explanation for his thinking – he left them in plain sight for a future federal prosecutor to review them. could visit.
In one of the most serious of those incidents, Trump attempted to thwart the investigation into the special counsel himself by ordering his White House counsel, Don McGahn, to fire Mueller. When that went public, he compounded the abuse by ordering McGahn to deny the truth in an effort to cover it up.
Weissmann, who played a key role in gathering the evidence against Trump in the Mueller report, said such an obstruction goes to the heart of why Trump should be prosecuted.
“If the president, whoever it is, obstructs a special council investigation, there must be consequences. If you can criminally obstruct an investigation, but you don’t have to worry about ever being prosecuted, then there’s no point in ever appointing special counsel. “