Opinion
Should Trump Be Prosecuted?
Being president should mean you are more accountable,
not less, to the rule of law.
By Andrew
Weissmann
Mr.
Weissmann was a senior prosecutor in the Mueller investigation.
Nov. 24,
2020
When the
Biden administration takes office in 2021, it will face a unique, fraught
decision: Should Donald Trump be criminally investigated and prosecuted?
Any renewed
investigative activity or a criminal prosecution would further divide the
country and stoke claims that the Justice Department was merely exacting
revenge. An investigation and trial would be a spectacle that would surely
consume the administration’s energy.
But as
painful and hard as it may be for the country, I believe the next attorney
general should investigate Mr. Trump and, if warranted, prosecute him for
potential federal crimes.
I do not
come to this position lightly. Indeed, we have witnessed two U.S. presidential
elections in which large crowds have found it acceptable to chant with fervent
zeal that the nominee of the opposing party should be jailed. We do not want to
turn into an autocratic state, where law enforcement authorities are political
weapons of the reigning party.
But that is
not sufficient reason to let Mr. Trump off the hook.
Mr. Trump’s
criminal exposure is clear. I was a senior member of the investigation led by
the former special counsel Robert Mueller to determine whether Russia attempted
to subvert our fundamental democratic source of political legitimacy: our
electoral system. Among other things, he was tasked with determining whether
Mr. Trump interfered with our fact-finding into this issue.
We amassed
ample evidence to support a charge that Mr. Trump obstructed justice. That view
is widely shared. Shortly after our report was issued, hundreds of former
prosecutors concluded that the evidence supported such a charge.
What
precedent is set if obstructing such an investigation is allowed to go
unpunished and undeterred? It is hard enough for the executive branch to
investigate a sitting president, who has the power to fire a special counsel
(if needed, through the attorney general) and to thwart cooperation with an
investigation by use of the clemency power. We saw Mr. Trump use his clemency
power to do just that with, for example, his ally Roger Stone. He commuted Mr.
Stone’s sentence, who was duly convicted by a jury but never spent a day in
jail for crimes that a federal judge found were committed for the president.
The same judge found that Paul Manafort, a former Trump campaign chairman, lied
to us repeatedly, breaching his cooperation agreement. He, too, was surely
holding out hope for a dangled pardon.
Mr. Trump
can’t point to what the special counsel investigation did not find (e.g.,
“collusion”) when he obstructed that very investigation. The evidence against
Mr. Trump includes the testimony of Don McGahn, Mr. Trump’s former White House
counsel, who detailed how the president ordered the firing of the special
counsel and how when that effort was reported in the press, Mr. Trump beseeched
Mr. McGahn to deny publicly the truth and, for safe measure, memorialize that
falsity in a written memorandum.
The
evidence includes Mr. Trump’s efforts to influence the outcome of a
deliberating jury in the Manafort trial and his holding out the hope for a
pardon to thwart witnesses from cooperating with our investigation. Can anyone
even fathom a legitimate reason to dangle a pardon?
His
potential criminal liability goes further, to actions before taking office. The
Manhattan district attorney is by all appearances conducting a classic
white-collar investigation into tax and bank fraud, and the New York attorney
general is engaged in a civil investigation into similar allegations, which
could quickly turn into a criminal inquiry.
These state
matters may well reveal evidence warranting additional federal charges. Such
potential financial crimes were not explored by the special counsel
investigation and could reveal criminal evidence. Any evidence that was not
produced to Congress in its inquiries, like internal State Department and White
House communications, is another potential trove to which the new
administration should have access.
The matters
already set out by the special counsel and under investigation are not trivial;
they should not raise concerns that Mr. Trump is being singled out for
something that would not be investigated or prosecuted if committed by anyone
else.
Because
some of the activities in question predated his presidency, it would be
untenable to permit Mr. Trump’s winning a federal election to immunize him from
consequences for earlier crimes. We would not countenance that result if a
former president was found to have committed a serious violent crime.
Sweeping
under the rug Mr. Trump’s federal obstruction would be worse still. The
precedent set for not deterring a president’s obstruction of a special counsel
investigation would be too costly: It would make any future special counsel
investigation toothless and set the presidency de facto above the law. For
those who point to the pardon of Richard Nixon by Gerald Ford as precedent for
simply looking forward, that is not analogous: Mr. Nixon paid a very heavy
price by resigning from the presidency in disgrace for his conduct.
Mr. Trump
may very well choose to pardon not just his family and friends before leaving
office but also himself in order to avoid federal criminal liability. This
historic turn of events would have no effect on his potential criminal exposure
at the state level. If Mr. Trump bestows such pardons, states like New York
should take up the mantle to see that the rule of law is upheld. And pardons
would not preclude the new attorney general challenging a self-pardon or the
state calling the pardoned friends and family before the grand jury to advance
its investigation of Mr. Trump after he leaves office (where, if they lied,
they would still risk charges of perjury and obstruction).
In short,
being president should mean you are more accountable, not less, to the rule of
law.
Andrew
Weissmann, a senior prosecutor in Robert Mueller’s special counsel
investigation, is a senior fellow at the New York University School of Law and
the author of “Where Law Ends: Inside the Mueller Investigation.”
Follow The
New York Times Opinion section on Facebook, Twitter (@NYTopinion) and
Instagram.
Sem comentários:
Enviar um comentário