How real is the threat of prosecution for Donald
Trump post-presidency?
Legal threats range from investigations into his
business dealings in New York to possible obstruction of justice charges – but
all come with a political cost
by Ed
Pilkington in New York
Fri 25 Dec
2020 07.30 GMTLast modified on Fri 25 Dec 2020 07.32 GMT
https://www.theguardian.com/us-news/2020/dec/25/donald-trump-prosecution-post-presidency
At noon on
20 January, presuming he doesn’t have to be dragged out of the White House as a
trespasser, Donald Trump will make one last walk across the South Lawn, take
his seat inside Marine One, and be gone.
From that
moment, Trump’s rambunctious term as president of the United States will be
over. But in one important aspect, the challenge presented by his presidency
will have only just begun: the possibility that he will face prosecution for
crimes committed before he took office or while in the Oval Office.
“You’ve
never had a president before who has invited so much scrutiny,” said Bob Bauer,
White House counsel under Barack Obama. “This has been a very eventful
presidency that raises hard questions about what happens when Trump leaves
office.”
For the
past four years Trump has been shielded from legal jeopardy by a justice
department memo that rules out criminal prosecution of a sitting president. But
the second he boards that presidential helicopter and fades into the horizon,
all bets are off.
The
Manhattan district attorney, Cyrus Vance, is actively investigating Trump’s
business dealings. The focus described in court documents is “extensive and
protracted criminal conduct at the Trump Organization” including possible bank
fraud.
The government
is going to have decisions to make about how to respond
Bob Bauer
A second
major investigation by the fearsome federal prosecutors of the southern
district of New York has already led to the conviction of Trump’s former lawyer
Michael Cohen. He pleaded guilty to campaign finance violations relating to the
“hush money” paid to Stormy Daniels, the adult film actor who alleged an affair
with Trump during the 2016 presidential campaign.
During the
course of the prosecution, Cohen implicated a certain “Individual 1” – Trump –
as the mastermind behind the felony. Though the investigation was technically
closed last year, charges could be revisited once Trump’s effective immunity is
lifted.
It all
points to a momentous and fiendishly difficult legal challenge, fraught with political
danger for the incoming 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 confront some form of these
issues,” said Bauer, who is co-author of After Trump: Reconstructing the
Presidency. “The government is going to have decisions to make about how to
respond, given the potential that it becomes a source of division.”
Any attempt
to hold Trump criminally liable in a federal prosecution would be a first in US
history. No exiting president has ever been pursued in such a way by his
successor (Richard Nixon was spared the ordeal by Gerald Ford’s contentious
presidential pardon).
Previous
presidents have tended to take the view that it is better to look forwards in
the name of national healing than backwards at the failings of their
predecessor. And for good reasons – any prosecution would probably be long and
difficult, act as a huge distraction, and expose the incoming president to
accusations that they were acting like a tinpot dictator hounding their
political enemy.
If you do
nothing you are saying that though the president of the United States is not
above the law, in fact he is
Andrew Weissmann
That a
possible Trump prosecution is being discussed at all is a sign of the exceptional
nature of the past four years. Those who argue in favor of legal action accept
that there are powerful objections to going after Trump but urge people to
think about the alternative – the dangers of inaction.
“If you do
nothing you are saying that though the president of the United States is not
above the law, in fact he is. And that would set a terrible precedent for the
country and send a message to any future president that there is no effective
check on their power,” said Andrew Weissmann, who was a lead prosecutor in the
Mueller investigation looking into coordination between Russia and Trump’s 2016
campaign.
As head of
one of the three main teams answering to the special counsel Robert Mueller,
Weissmann had a ringside seat on what he calls Trump’s “lawless White House”.
In his new book, Where Law Ends, he argues that the prevailing view of the 45th
president is that “following the rules is optional and that breaking them comes
at minimal, if not zero, cost”.
Weissmann
told the Guardian that there would be a price to be paid if that attitude went
unchallenged once Trump leaves office. “One of the things we learnt from this
presidency was that our system of checks and balances is not as strong as we
thought, and that would be exacerbated by not holding him to account.”
Bauer, who
was an adviser to Biden during the presidential campaign but has no role in the
transition team, is also worried that a sort of double immunity would be
established. Presidents cannot be prosecuted while in office under justice
department rules, but under such a double immunity nor could they be prosecuted
once leaving the White House in the interests of “national healing”.
“And so the
president is immune coming and going, and I think that would be very difficult
to square with the idea that he or she is not above the law.”
Biden has
made clear his lack of enthusiasm for prosecuting Trump, saying it would be
“probably not very good for democracy”. But he has also made clear that he
would leave the decision to his appointed attorney general, following the norm
of justice department independence that Trump has repeatedly shattered.
Other
prominent Democrats have taken a more bullish position, adding pressure on the
incoming attorney general to be aggressive. During the Democratic primary
debates, Elizabeth Warren called for an independent taskforce to be set up to
investigate any Trump corruption or other criminal acts in office.
Kamala
Harris also took a stance that may come to haunt the new administration. The
vice president-elect, asked by NPR last year whether she would want to see
charges brought by the Department of Justice, replied: “I believe that they
would have no choice and that they should, yes.”
Trump issued a
series of pardons largely characterized by political self-interest
Andrew Weissmann
There are
several possible ways in which the justice department could be forced to
confront the issue of whether or not to take on Trump. One would be through a
revelation as yet unknown, following the emergence of new information.
Weissmann
points out that the Biden administration will have access to a wealth of
documents that were previously withheld from Congress during the impeachment
inquiry, including intelligence agency and state department files. Official
communications sent by Jared Kushner and Ivanka Trump through their personal
emails and messaging apps – an ironic move given the flak Hillary Clinton
endured from the Trump family in 2016 for using her personal email server – may
also become available for scrutiny.
But the two
most likely avenues for the pursuit of any criminal investigation would relate
to Trump’s use of his presidential pardon power and alleged obstruction of
justice. “Trump issued a series of pardons largely characterized by political
self-interest,” Weissmann said.
Though the
presidential pardon power is extensive, it is not, as Trump has claimed,
absolute – including the “absolute right” to pardon himself. He is not immune
from bribery charges if he were found to have offered somebody a pardon in
exchange for their silence in a judicial case.
For
Weissmann, the way Trump continually teased his associates – including Roger
Stone and Paul Manafort – with the promise of pardons in the middle of federal
prosecutions was especially egregious. “There may be a legitimate reason to
give somebody a pardon, but what’s the legitimate reason for dangling a pardon
other than to thwart that person from cooperating with the government?”
Perhaps the
most solid evidence of criminal wrongdoing compiled against Trump concerns
obstruction of justice. John Bolton, the former national security adviser, went
so far as to say that for Trump, obstruction of justice to further his own
political interests was a “way of life”.
In his
final report on the Russia investigation, Mueller laid out 10 examples of
Trump’s behavior that could be legally construed as obstruction. Though Mueller
declined to say whether they met the standard for charges – the US attorney
general, Bill Barr, suggested they did not, but gave no explanation for his
thinking – he did leave them in plain sight for any future federal prosecutor
to revisit.
In one of
the starkest of those incidents, Trump tried to scupper the special counsel
inquiry itself by ordering his White House counsel, Don McGahn, to fire
Mueller. When that became public he compounded the abuse by ordering McGahn to
deny the truth in an attempt at cover-up.
Weissmann,
who played a key role in gathering the evidence against Trump in the Mueller
report, said that such obstruction goes to the heart of why Trump should face
prosecution.
“When the
president, no matter who it is, obstructs a special counsel investigation there
have to be consequences. If you can obstruct an investigation criminally but
you don’t have to worry about ever being prosecuted, well then, there’s no
point in ever appointing a special counsel.”
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