At noon on January 20, assuming he should not be removed from the White House as a deceiver, Donald Trump will take one last walk through the South Lawn, take a seat in Marine One, and be gone.
From then on, Trump’s term as president of the United States will end. However, in an important aspect, the challenge presented by his presidency has only just begun: the possibility of him being prosecuted for crimes committed before taking office or while in the oval office.
“You’ve never had a president who called for so much control,” said Bob Bauer, a White House adviser under Barack Obama. “This has been a very eventful presidency, which 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 that excludes prosecuting an incumbent president. But the second time you get on that presidential helicopter and fade to the horizon, all bets are off.
Manhattan prosecutor Cyrus Vance is actively investigating Trump’s trade relations. The emphasis described in court documents is “extended and prolonged criminal conduct against the Trump organization,” including possible bank fraud.
A second major investigation by frightening federal prosecutors in New York’s southern district has already led to the conviction of former Trump lawyer Michael Cohen. He pleaded guilty to violating the campaign’s finances related to the “money” paid to Stormy Daniels, the adult film actor who claimed an affair with Trump during the 2016 presidential campaign.
During the criminal investigation, Cohen implicated a certain “individual 1” – Trump – as the mastermind behind the crime. Although the investigation was technically closed last year, the allegations could be reviewed once Trump’s effective immunity is lifted.
Everything indicates an important and extremely difficult legal challenge, full of political dangers for the new 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 form of these issues,” said Bauer, who co-authored the book After Trump: Reconstructing the Presidency. “The government will make decisions on how to respond, given the potential for it to become a source of division.”
Any attempt to prosecute Trump in a federal indictment would be a first in US history. No outgoing president has ever been pursued in this way by his successor (Richard Nixon was spared the ordeal of Gerald Ford’s presidential dispute).
Previous presidents have tended to consider it better to look forward in the name of national healing than to look back at the failures of their predecessor. And for good reason – any prosecution would probably be long and difficult, it would act like a huge distraction, and it would expose the incumbent president for acting like a tinsmith dictator chasing his political enemy.
The fact that there is talk of a possible criminal prosecution of Trump is a sign of the exceptional nature of the last four years. Those who argue in favor of the lawsuit accept that there are strong objections to going after Trump, but urge people to think about the alternative – the dangers of inaction.
“If you do nothing, you say that although 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 verification of their power, “said Andrew Weissmann, who was chief prosecutor in Mueller’s investigation, analyzing coordination between Russia and Trump. in 2016 campaign.
As head of one of the three main teams that served as special adviser Robert Mueller, Weissmann had a place in front of what he calls Trump’s “White House without Law.” In his new book, Where Law Ends, he argues that the dominant opinion of the 45th president is that “following the rules is optional and that violating them has a minimal, if not zero, cost.”
Weissmann told The Guardian that it would be a price to pay if this attitude remained undisputed 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 this would be exacerbated by the fact that we will not be held accountable.”
Bauer, who was Biden’s adviser during the presidential campaign but has no role in the transition team, is also worried that a kind of double immunity will be established. Presidents cannot be prosecuted in accordance with the rules of the justice department, but under such double immunity, nor could they be prosecuted after leaving the White House in the interest of “national healing.”
“So the president is immune, he comes and goes, and I think it would be very difficult to fit in with the idea that he or she is not above the law.”
Biden made it clear that he was not enthusiastic about prosecuting Trump, saying he “probably wouldn’t be very good at democracy.” But he also said he would leave the decision to his designated attorney general, following the rule of independence of the justice department that Trump has repeatedly shattered.
Other prominent Democrats have taken a higher stance, adding pressure on the prosecutor general, who is set to be aggressive. During the Democratic primary debates, Elizabeth Warren called for an independent working group to investigate any Trump corruption or other criminal acts in office.
Kamala Harris has also taken a position that could come to haunt the new administration. The elected vice president, when asked by NPR last year if he would like to see the accusations brought by the Justice Department, replied: “I think he would have no choice and he should, yes.”
There are several possible ways in which the justice department could be forced to deal with the issue of whether or not to take on Trump. One would be through a still unknown revelation, following the appearance of new information.
Weissmann points out that the Biden administration will have access to a wealth of documents that were previously withheld by Congress during the indictment, including the intelligence agency and state department files. The official communications sent by Jared Kushner and Ivanka Trump through their personal emails and messaging apps – an ironic move given by the flak Hillary Clinton endured from the Trump family in 2016 for using her personal email server – would may also become available for examination.
But the two most likely avenues for pursuing any criminal investigation would be Trump’s use of his presidential pardon power and alleged obstruction of justice. “Trump has issued a series of pardons largely characterized by his own political interest,” Weissmann said.
Although the power of presidential pardon is extended, it is not, as Trump argued, absolute – including the “absolute right” to forgive. He is not immune to bribery charges if he is found to have offered someone a pardon in exchange for their silence in a court case.
For Weissmann, the way Trump has continually teased his associates – including Roger Stone and Paul Manafort – with the promise of pardons in the midst of federal prosecutions has been particularly blatant. “There may be a legitimate reason to forgive someone, but what is the legitimate reason to hang a forgiveness other than to prevent that person from cooperating with the government?”
Perhaps the strongest evidence of the criminal acts compiled against Trump concerns the obstruction of justice. John Bolton, a 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 the Russian investigation, Mueller presented 10 examples of Trump’s behavior that could be legally interpreted as obstruction. Although Mueller declined to say whether they meet the standard for charges – U.S. Attorney General Bill Barr suggested no, but gave no explanation for his thinking – he left them open for any future federal prosecutor to review. .
In one of the strongest of these incidents, Trump tried to break into the councillor’s special investigation, ordering his White House attorney, Don McGahn, to fire Mueller. When this became public, it aggravated the abuse, ordering McGahn to deny the truth in an attempt to cover up.
Weissmann, who played a key role in gathering evidence against Trump in the Mueller report, said such an obstruction is at the heart of why Trump should be prosecuted.
“When the president, no matter who he is, prevents a special investigation by a lawyer, there must be consequences. If you can obstruct a criminal investigation, but you don’t have to worry that you will ever be prosecuted, then there is no point in ever appointing a special lawyer ”.