It’s not an easy call. Anyone who believes it to be simple is not grappling with the implications of taking the unprecedented step of lodging criminal charges against a former president. The United States is not a place, chants notwithstanding, where those in power lock up their political enemies. There is a delicate line between the pursuit of justice and indulging the urge for retribution.
Prosecuting Trump may well be justified, but the consequences of further inflaming an already divided country ought to be sobering. A decision this momentous needs to be made on the merits and kept as far from politics as possible.
Prosecuting Trump for pre-presidential or nonpresidential actions would be easier, less freighted with questions about criminalizing the operations of government, than a case centered on his actions as president. Here, the possibilities are abundant. For example, whether his manipulations of the tax code amount to criminal tax fraud, or whether he violated campaign finance laws by covering up his hush-money payments. And the questions are reasonably straightforward: Can a case be proved? Would charges be brought against someone else with the same fact pattern?
Sometimes the prominence of a potential defendant plays a role in deciding to seek an indictment, because part of the function of criminal prosecution is to deter other offenders, as well as to demonstrate that the powerful are not exempt from punishment. In this situation, Trump’s celebrity should not be held against him; the risk of appearing vindictive is too great. But if the facts support prosecution — and if others in the same situation would be charged — there should be little hesitation about proceeding.
On the federal level, it is essential that President-elect Joe Biden stay entirely out of the conversation, and that he select an attorney general whose judgment is impeccable — and who will not be, or be viewed as, a partisan operator, either being punitive toward Trump or bending to Biden’s apparent desires. What might be in Biden’s interest — trying to put Trump and his misconduct in the rearview mirror — is not necessarily congruent with the public interest.
The issue of prosecuting Trump for what he did as president is much more complex. It cannot be that a president is simultaneously immune from being prosecuted while in office and should not be targeted after departure, lest the new administration appear to be pursuing a political opponent. Indeed, the 2000 opinion on this subject by the Justice Department’s Office of Legal Counsel explicitly contemplated that “the immunity from indictment and criminal prosecution for a sitting President would generally result in the delay, but not the forbearance, of any criminal trial.” Doing otherwise would not be a get-out-of-jail-free card for presidents; it would amount to assuring them they never have to worry about going to jail at all.
Still, for Trump to be prosecuted for his acts as president, the offense should be more than arguable — it should be clear-cut, almost indisputable. Not every outrage is a crime. The criminal code is not the only, or even the best, mechanism for political accountability. Indeed, this month voters delivered the ultimate accountability in the form of defeating Trump’s bid for a second term.
In Trump’s case, former special counsel Robert S. Mueller III laid out 10 instances in which Trump may have obstructed justice. Scores of former prosecutors said they would have brought such charges; the House declined to pursue impeachment on that basis. The Mueller findings should be reviewed by career prosecutors on the merits. But the House inaction raises the question: If the obstruction wasn’t compelling enough to try to remove Trump from office then, why is it worth the turmoil to prosecute him now?
Other potential crimes are different. Prosecutors shouldn’t have a roving commission to comb through all the outrages of the Trump administration in search of a fact pattern that fits the criminal code, and that’s a risk. But where there is enough of a predicate to open a criminal investigation, they should not be hobbled. Trump’s refusal to cooperate with legitimate congressional oversight bolsters that imperative. To hold off would be to reward that obstructionism and encourage more down the road.
In short, investigate now, and prosecute judiciously. No president can be above the law, but the law needs to move with extreme care — and no haste — in this exquisitely difficult situation.