It is entirely fitting that Donald Trump — the least law-abiding president in our history — was renominated at a convention that was itself a seeming cavalcade of crime. Every night featured apparent violations of the 1939 Hatch Act, which prohibits federal employees from engaging in political activities “in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States.”
The White House certainly qualifies as such a facility. Yet Trump used it as a convention prop, even going so far as to televise a naturalization ceremony for immigrants — some of whom did not realize they would be shown at the Republican convention — as part of the nightly show. Trump not only flouted the law but also reveled in doing so. During his acceptance speech, he boasted, “We’re here — they’re not,” and the New York Times reported that Trump “relished the fact that no one could do anything to stop him.”
While the president is exempt from the civil provisions of the Hatch Act, he could be subject, once he leaves office, to criminal penalties if he should “intimidate, threaten, command, or coerce … any employee of the Federal Government … to engage in … any political activity.” That is a crime punishable by up to three years in prison.
This is, of course, barely scratching the surface of an administration that should more accurately be described as an ongoing criminal conspiracy. While many of Trump’s awful acts — e.g., confining children in cages or unleashing riot police on peaceful protesters — are merely violations of democratic norms, there is also plentiful evidence of lawbreaking on his part.
The U.S. attorney for the Southern District of New York has identified Trump as “Individual-1” in a conspiracy with his attorney Michael Cohen to violate campaign finance laws by secretly paying off two women with whom Trump allegedly had affairs. Cohen went to prison; Trump, who as president claims immunity from prosecution, wasn’t indicted.
Special counsel Robert S. Mueller III uncovered a great deal more potential illegality. He found 10 instances when Trump might have obstructed justice, and in at least four of those cases he found evidence that Trump’s conduct met all three elements of the obstruction-of-justice statute. Each violation carries a maximum penalty of 20 years in prison. The recent report from the Senate Intelligence Committee suggests that Trump also lied to Mueller when, in written testimony, he claimed not to remember speaking to Roger Stone about WikiLeaks. If he committed perjury, that would subject him to up to five years’ imprisonment.
Trump’s impeachment, on charges of trying to extort Ukraine into helping him politically, uncovered more conduct that could be criminal. Just Security published an invaluable compendium written by eminent legal experts who argued that Trump might have broken federal campaign finance laws (he solicited something of value from a foreign national), bribery laws, the “honest services” law (“a public official breaches his duty to act in the best interests of his constituents by performing an official acting in exchange for personal gain”), the contempt-of-Congress law — and, yet again, the Hatch Act, which prohibits a public official from using “official authority or influence for the purpose of interfering with or affecting the result of an election.”
Then there are all the financial crimes Trump might be hiding by refusing to release his tax returns and other financial documents. The Manhattan district attorney and the New York attorney general are said to be investigating Trump for potential campaign finance violations, bank fraud and tax fraud.
The question is: Who will investigate Trump’s potentially illegal conduct while in office — and prosecute him, if warranted, once he leaves it? We know it won’t be Attorney General William P. Barr, Trump’s accomplice in perverting the Constitution. That means it will be up to Joe Biden, assuming he wins in November.
In the past, I would have argued for leaving Trump alone after he steps down so as to end our “long national nightmare.” But I am now convinced that Trump’s wrongdoing is so pervasive and brazen that he must be prosecuted to uphold the rule of law and deter even greater lawbreaking by future presidents. If elected, Biden should appoint a special counsel of unimpeachable integrity — a widely respected former U.S. attorney or federal judge — with a wide-ranging mandate to investigate Trump and his administration. That prosecutor should finally summon Trump to testify orally under oath or assert his Fifth Amendment privilege against self-incrimination — something Mueller never did. If Trump did testify, it would almost certainly result in perjury charges.
Trump could try to short-circuit justice by seeking to pardon himself before he leaves office — or even by resigning a few hours early and having Vice President Pence sworn in to issue a pardon (as President Gerald Ford did for Richard Nixon). In that case, the special counsel would be limited to investigating Trump’s accomplices (unless they are also pardoned) and helping state prosecutors. But the special counsel should still issue a comprehensive report on Trump’s lawbreaking. We must expose and root out this ethical rot before it eats away at the foundations of our democracy.
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