At noon on Jan. 20, presuming he shouldn’t be dragged out of the White House as an intruder, Donald Trump will take one last walk down the South Lawn, take his seat inside Marine One, and leave.
From that moment on, Trump’s bewildered term as president of the United States will end. But in an important aspect, the challenge presented by his presidency will only have begun: the possibility that he may be prosecuted for crimes committed before taking office or while in the oval office.
“You’ve never had a president who has invited so much to a checkpoint,” said Bob Bauer, Barack Obama’s White House attorney. “This has been a very troubled presidency that raises tough questions about what happens when Trump leaves office.”
For the past four years, Trump has been protected from legal danger by a note from the Justice Department ruling out criminal prosecution of an incumbent president. But the second you get on the presidential helicopter and fade to the horizon, all bets are off.
Manhattan District Attorney Cyrus Vance is actively investigating Trump’s trade relations. The focus described in court documents is “extensive and prolonged criminal conduct in the Trump Organization,” including possible bank fraud.
A second major investigation by fearsome federal prosecutors in the southern district of New York has already led to the conviction of former Trump lawyer Michael Cohen. He pleaded guilty to campaign funding violations related to “silent money” paid to Stormy Daniels, the adult film actor who alleged an affair with Trump during the 2016 presidential campaign.
During the trial, Cohen implicated a certain “individual 1,” Trump, as the mastermind behind the crime. Although the investigation was technically closed last year, the charges could be re-reviewed once Trump’s effective immunity is lifted.
It all points to a momentous and endemicly difficult legal challenge, full of political danger for the Biden administration. Should Trump be investigated and possibly prosecuted for crimes committed before and during his presidency?
“It looks like the incoming administration will have to deal with some sort of these issues,” said Bauer, who is a co-author of After Trump: Reconstructing the Presidency. “The government will make decisions on how to respond, given the potential to become a source of division.”
Any attempt to criminally hold Trump accountable in federal prosecution would be the first in U.S. history. His successor has never pursued any outgoing president (Richard Nixon was spared the test by Gerald Ford’s contentious presidential pardon).
Previous presidents tend to consider it better to look forward in the name of national healing than to look back in the face of the failures of their predecessor. And for good reason: any prosecution would be long and difficult, it would act like a huge distraction, and it would expose the incoming president to accusations that he acted like a canned dictator chasing his political enemy.
That a possible Trump prosecution is being discussed at all is a testament to the exceptionality of the past four years. Proponents of her case have been working to make the actual transcript of this statement available online.
“If you don’t do anything, you’re saying that even though 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 over his power, “said Andrew Weissmann, who was a senior prosecutor in Mueller’s investigation studying 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 next to what he calls Trump’s “Lawless White House.” In his new book, Where Law Ends, he argues that the 45th president’s dominant view is that “following the rules is optional and breaking them has minimal, if any, cost.”
Weissmann told The Guardian that there would be a price to pay if that attitude was not controversial once Trump left 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 be exacerbated if we don’t hold it accountable.”
Bauer, who was Biden’s adviser during the presidential campaign but has no role in the transition team, is also concerned about establishing a kind of double immunity. Presidents cannot be prosecuted while in office according to Justice Department rules, but with double immunity they also cannot be prosecuted once they leave the White House in the interest of “national healing.”
“And so the president is immune to coming and going, and I think it would be very difficult to agree with the idea that he or she is not above the law.”
Biden has made clear his lack of enthusiasm to prosecute Trump, saying he “probably wouldn’t be very good for democracy.” But he has also made it clear that he would leave the decision to his designated attorney general, following the Justice Department’s rule of independence that Trump has repeatedly broken.
Other prominent Democrats have taken a more bullish stance, making the incoming attorney general aggressive. During the Democratic primary debates, Elizabeth Warren called for an independent working group to be set up to investigate any Trump corruption or other criminal acts in office.
Kamala Harris also took a stance that could be pursued by the new administration. The vice president-elect, when asked by NPR last year if he wanted to see the charges filed by the Justice Department, replied: “I think they would have no choice and that yes, yes.”
There are several possible ways in which the justice department may be forced to address the question of whether or not to adopt Trump. One would be by means of a revelation still unknown, after the appearance of new information.
Weissmann notes that the Biden administration will have access to a large number of documents that were previously withheld in Congress during the impeachment investigation, including files from the intelligence agency and the state department. The official communications sent by Jared Kushner and Ivanka Trump via their personal emails and messaging apps (an ironic move given the unknown Hillary Clinton endured from the Trump family in 2016 to use her personal email server) also they may be available for examination.
But the two most likely avenues for criminal investigation would be related to Trump’s use of his power of presidential pardon and the alleged obstruction of justice. “Trump issued a series of pardons characterized largely by political interest,” Weissmann said.
While the power of presidential pardon is extensive, it is not absolute, as Trump has claimed, including the “absolute right” to forgive. He is not immune to bribery charges if he had been offered forgiveness to someone in exchange for his silence in a court case.
For Weissmann, the way Trump continually mocked his associates (including Roger Stone and Paul Manafort) with the promise of pardons amid federal lawsuits was especially blatant. “There may be a legitimate reason to forgive someone, but what is the legitimate reason to hang a pardon other than to frustrate that person’s cooperation with the government?”
Perhaps the strongest evidence of criminal acts compiled against Trump relates to the 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 Russia’s investigation, Mueller set out ten examples of Trump’s behavior that could be legally interpreted as an obstruction. Although Mueller declined to say whether they met the standard for the charges (U.S. Attorney General Bill Barr suggested they didn’t, but gave no explanation for his thinking), they did. left in plain sight for any future federal prosecutor to review them.
In one of these most egregious incidents, Trump tried to thwart the Special Counsel’s investigation by ordering his White House attorney, Don McGahn, to fire Mueller. When this was made public, he aggravated the abuse by ordering McGahn to deny the truth in an attempt to conceal it.
Weissmann, who played a key role in gathering evidence against Trump in the Mueller report, said this obstruction is critical to why Trump should be prosecuted.
“When the president, regardless of who he is, obstructs a special investigation by the councilor, it must have consequences. If you can criminally obstruct an investigation, but you don’t have to worry about ever being prosecuted, then it never makes sense to appoint a special lawyer. “