President-elect Joe Biden is said to be wary of the prospect of his administration investigating and potentially prosecuting President Trump. Biden reportedly says he will not interfere with the decisions of his new attorney general, but that he would prefer to “move on.” I used to prosecute public corruption cases, and I take such cases very seriously. So I don’t say this lightly: Biden is right.
Those who favor investigating and potentially indicting Trump claim it is the only way to ensure that justice is done and that no one is above the law. They believe criminal accountability is necessary to restore our damaged norms and institutions. If there are not criminal consequences, they argue, Trump will have “gotten away with it” and future presidents will be emboldened to go even further.
These are powerful arguments, and I’m almost persuaded. There is definitely a social cost to not pursuing any potential criminal cases. But the alternative is arguably costlier.
Launching criminal investigations into an outgoing president would set a dangerous precedent. In this country, we don’t use the criminal justice system to punish political opponents. Trump has routinely threatened to prosecute his political rivals and led “lock her up” chants at his rallies. Those who recoiled from such behavior should think twice before encouraging Biden’s attorney general to start down that road.
This problem would be magnified by Trump’s apparent intention to run for president again in 2024. Trump and his supporters would inevitably characterize any investigations as a corrupt attempt by the Biden administration to “take out” a potential 2024 rival. If you think the political atmosphere was poisonous during the Mueller investigation, imagine what it would be like with the Biden Justice Department prosecuting Trump.
We also don’t prosecute political misdeeds that aren’t actually criminal. Many of Trump’s actions fall into this category. The past four years have showcased how much we have relied on unwritten norms to guide the behavior of presidents we assumed would act in good faith. Trump exposed the lack of any real legal backbone to many such norms. For example, he refused to divest himself of his businesses and repeatedly enriched himself through taxpayer-funded trips to his own properties. Such behavior was previously thought unthinkable, but no law expressly prohibits it. Outrageous? Yes. Sleazy? Yes. But likely not criminal.
Even when potential criminality is more clear, prosecutors may decline to proceed if countervailing interests counsel against it. Consider what is probably Trump’s greatest federal criminal exposure: his repeated acts of obstruction of justice documented in the Mueller report. Many current and former prosecutors (including me) believe former special counsel Robert S. Mueller III laid out a strong case. Yet the Democratic House of Representatives did not even see fit to impeach the president over those alleged crimes (although it later did over his attempted extortion of Ukraine). The book appears largely closed on Trump’s obstruction. Now that voters have removed Trump from office, it’s not clear the public interest would be served by seeking to reopen it.
The claim that no prosecutions would mean Trump “got away with it” wrongly assumes that criminal penalties are the only potential remedy for Trump’s misconduct. There are social and political remedies, as well. Trump is destined to go down in history as an impeached, disgraced president. He presided over four years of chaos culminating in a disastrously failed pandemic response and an unprecedented effort to undermine faith in our elections. He is one of only a handful of incumbents to lose reelection. He did not “get away with it”; the country saw his behavior and booted him.
Criminal investigations would guarantee that the next few years continue to be all about Trump. They would suck up all the oxygen and detract from Biden’s message and policy agenda. We would remain bitterly divided, with half the country convinced that Trump is being subjected to another political “witch hunt.” We can’t move forward if we spend the next four years re-litigating the past four.
This policy of not prosecuting a former president can’t be an absolute rule, of course. If the president murdered someone in the Oval Office or sold our most sensitive intelligence to an enemy, it would be unimaginable to say that president is immune from prosecution. But the bar has to be very high, and absent some new revelation, Trump’s actions — as appalling as they have been — don’t clear that bar.
Even if Biden’s Justice Department does not pursue Trump, there are potential state prosecutions looming in New York. Those, too, would be controversial, and Biden can’t do much about them. But at least they do not raise the specter of a sitting president weaponizing his Justice Department against a political rival.
By all means, let’s enact the necessary reforms to ensure that no future president can do the things Trump has done. If necessary, Congress can hold hearings in support of such legislation to expose more of Trump’s misconduct. But criminal prosecutions can’t bind up this country’s deep political and social wounds.
The country will be better served if we let history, not a jury, judge Trump. As Biden says: It’s time to move on.
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