From the earliest days of his administration, it became painfully apparent that in all matters — including affairs of state — Trump’s personal well-being took top priority. Four years and two impeachments later, he has managed to avoid the full consequences of his conduct.
But now that run of legal good fortune may end. Trump departed the White House a possible — many would say probable, provable — criminal, one who has left a sordid trail of potential and actual misconduct that remains to be fully investigated.
As Trump himself well understands. Long-standing Justice Department opinions hold that presidents can’t be prosecuted while they are in office. Given that any such protection was temporary, some of Trump’s advisers believed that one reason he decided to seek reelection was to avoid criminal exposure. Indeed, in the weeks leading up to November’s election, Trump reportedly confessed to advisers that he was worried about being prosecuted.
Fear of indictment also seemed to animate Trump’s frenzied efforts to overturn the results of the election he so clearly lost. During a 46-minute Facebook video rant in December, Trump complained that “these same people that failed to get me in Washington have sent every piece of information to New York so that they can try to get me there” — a reference to state prosecutors who apparently have ramped up their investigation of his personal and corporate affairs.
A desperate fear of criminal indictment may even explain Trump’s willingness to break any number of laws to stay in office despite losing his reelection bid, democracy and the Constitution be damned. He considered unfathomable measures such as declaring martial law and having the military somehow “rerun” the election. He risked further potential criminal exposure with his appalling — and, unbeknown to him, taped — conversation with Georgia’s secretary of state, during which he threateningly demanded that the official “find” enough votes for him to win the state, and by pressuring a Georgia elections investigator to “find the fraud” that didn’t exist.
And then, as the clock wound down on his time in office, he committed the ultimate impeachable offense for a president: fomenting a violent attempted putsch at the Capitol to stop Congress from confirming President-elect Joe Biden’s electoral victory. Prosecutors and jurors may have to decide whether it’s also a crime.
Private citizen Trump stands stripped of the legal and practical protections against prosecution that he enjoyed during his tenure: constitutional immunity; a protective attorney general; a special counsel operating under self-imposed and external constraints; and the ability to invoke the presidency in litigation, even meritless litigation, to delay state prosecutors’ investigations. No longer will he be able to claim interference with his public duties, or to remove those who might allow damaging investigations to proceed.
But Trump’s problem is ours as well: How the Biden administration addresses these issues will have long-lasting implications for the rule of law in America — along with potentially enormous political consequences.
President Biden himself should stay out of it, and rightly seems intent on doing so. His Justice Department, however, can’t and shouldn’t. Previous presidents and previous prosecutors gave former presidents a break for their misdeeds . . . Trump deserves no such grace. His wrongs are far too many to ignore. His demonstrated contempt for the constitutional and legal order is simply too great. That was clear enough before Trump’s repellent and possibly criminal efforts to overturn the election results, for which he was duly impeached. Now, an effort to hold Trump to account in the criminal justice system is essential and unavoidable.
To deal with Trump, and to do so fairly, Attorney General-designate Merrick Garland, once confirmed, will need to use the mechanism of a special counsel. Indeed, given the astonishing breadth of Trump’s wrongdoing, Garland may need to appoint more than one to get the job done swiftly and thoroughly. What follows is a guide to how and why the case or cases, United States v. Donald John Trump, must be pursued.
Even before he incited the Jan. 6 insurrection at the Capitol, Trump had amassed an impressive slate of potential criminal acts — from before his presidency and during. His life amounts to a virtual issue-spotting exercise for any student studying criminal law.
Russia
Let’s begin with the investigation into potential Russian collusion with the Trump campaign and Trump’s efforts to obstruct the probe. As much as Trump loved to claim that special counsel Robert S. Mueller III found “No Obstruction,” and provided Trump with “Total EXONERATION,” that was just another Trump lie.
Mueller’s investigation did no such thing. His report expressly “does not exonerate” Trump. In particular, it offers extensive evidence that Trump obstructed justice — a road map for any prosecutor willing to embark on the journey. . . . . Mueller clearly understood he was creating an evidentiary record that Congress could use for impeachment — or that another prosecutor could use down the road.
That record supports bringing multiple criminal counts of obstruction of justice against Trump. Mueller’s report described roughly a dozen episodes of potential obstruction and made clear that Trump’s conduct met each of these elements of the crime in at least four of the episodes
Ukraine
Next comes the Ukraine scandal, for which Trump was impeached and then acquitted by the Senate in a party-line vote joined by all but one Republican. The evidence collected by the House of Representatives showed that Trump pressured the government of Ukraine to announce a (nonexistent) investigation of Biden, and illegally ordered the withholding of $391 million in congressionally authorized security assistance to Ukraine. Trump made this proposed bogus announcement by Ukraine a quid pro quo for the American aid, as attested to by Trump’s own acting chief of staff, Mick Mulvaney, at a news briefing; by his ambassador to the European Union, Gordon Sondland, under oath; and by his former national security adviser, John Bolton, in a memoir.
Pre-presidential conduct: Campaign finance laws
In any event, the list of Trump’s possible offenses doesn’t end with the Russia and Ukraine matters. There’s the conduct that preceded his presidency — including a crime the Justice Department has, in effect, already determined that Trump committed: violations of federal campaign-finance laws through payments of hush money to two women who allegedly had affairs with Trump. Trump’s former personal lawyer, Michael Cohen, pleaded guilty to arranging for the payments, one made by the parent company of the National Enquirer, the other made by Cohen himself and reimbursed by Trump. The U.S. attorney’s office for the Southern District of New York represented to Cohen’s sentencing judge that “with respect to both payments,” Cohen “acted in coordination with and at the direction of Individual-1.” Prosecutors identified “Individual-1” as someone “for whom Cohen worked” and who waged “an ultimately successful campaign for president of the United States” — in other words, Trump.
Pre-presidential conduct: Bank, insurance and tax fraud
Which brings up another significant issue raising possible criminal exposure for Trump — his personal and business finances, generally. Vance has stated in court that he’s looking into “possibly extensive and protracted criminal conduct at the Trump Organization” — in particular, whether Trump or his company have committed bank, insurance or tax fraud, or falsified business records by overstating asset values and income to lenders and understating them to tax authorities. Trump has relentlessly and unsuccessfully fought Vance’s subpoenas for Trump’s tax and financial information all the way to the U.S. Supreme Court, where Trump lost. Vance’s probe is intensifying, with The Post reporting that prosecutors have hired outside forensic accounting experts to assist them.
Vance is running a state investigation, but if Trump has committed bank or insurance fraud, that would be chargeable as federal offenses as well, including mail or wire fraud. So, too, with state tax offenses, given how Trump’s federal and state returns would no doubt track one another.
Trump apparently had good reason to be concerned about who would fill Bharara’s old job.
The inclination to give a former president a pass is understandable. We don’t normally charge former presidents with crimes — indeed, it has never happened — though it’s because they normally aren’t criminals.
But conferring on ex-presidents blanket immunity from prosecution would also undermine the rule of law, because it would effectively place them above the law. That should be a particularly weighty concern these days, given how Trump, among other things, claimed that Article II of the Constitution gave him “the right to do whatever I want as president,” and how he promised pardons to underlings if they had to violate laws to build his vaunted border wall. Indeed, the Justice Department’s most recent opinion holding presidents temporarily immune from prosecution during their terms implicitly recognized that the rule of law requires that the immunity end once the presidents leave office.
When it comes to the misconduct of public officials, including presidents, my instincts have always landed more along the lines of the Latin phrase Fiat justitia, ruat caelum — “Let justice be done, though the heavens may fall.” But one needn’t subscribe to so unforgiving a view to justify a post-presidential investigation and potential prosecution of Trump, given where we are today. Because Trump is the extreme case. He has proved that over and over again. Bringing him to whatever justice he may deserve is, now more than ever, essential to vindicating the rule of law, which, now more than ever, must be a critical governing policy of the new administration. Vindication of the rule of law is precisely why many Americans, including myself, voted for Biden. When you consider the through line of Trump’s misconduct, and where it has led us, it’s clear that the cost of giving the former president a pass is simply too great for the nation to bear. If Trump escapes unscathed, what future president would have to fear criminal consequences for wrongdoing?
Clinton and Nixon were relieved of criminal liability, but at least they paid a price — and admitted some fault. Trump has done neither. In exchange for the independent counsel’s agreement not to prosecute, Clinton admitted that he had given false testimony, agreed to pay $25,000 in legal costs, and accepted a five-year suspension of his license to practice law. Nixon, of course, resigned in the face of imminent impeachment and removal. And he at least expressed some contrition, admitting in his resignation speech that some of what he did was “wrong.”
But if there could be any doubt about whether Trump can be given a pass without the rule of law paying too high a price, that ended in the ugly final weeks of Trump’s presidency. His attempts to reverse a free and fair election — by any means he saw necessary, including by fomenting violence — have not only undermined the rule of law but also threatened to destroy it altogether. No other president has ever done that, or attempted to do that, or probably even thought of doing that.
Ford pardoned Nixon partly because he feared the “degrading spectacle” of having a former commander in chief in the dock. But we already have the degrading spectacle. We endured it for four years, ever escalating, and it culminated in the tragic and appalling events of Jan. 6. Restoring dignity to our political system requires some attempt to do justice, beyond preventing Trump from holding federal offices he never deserved to occupy. The stark lesson of the past four years is that the failure to hold a president to account only leads to more conduct for which the president should be held to account.
So, too, with the potential for perpetuating division and potential violence. It already exists. Giving Trump a pass won’t make it disappear. Trump’s supporters, despite the evidence, will continue to insist that the election was stolen from him; they will continue nursing, and acting upon, their grievances. The fear that they may engage in further disorder shouldn’t, and won’t, prevent prosecutors from bringing hundreds of cases against the insurrectionists. To the contrary, it’s precisely the reason those prosecutions should proceed. For much the same reason, the operation of the criminal law shouldn’t be suspended against the man who gave those people the permission structure to commit their violent acts.
Biden’s instinct to the contrary is understandable. . . . . But Biden clearly realizes that he can’t just let things go, and that the proper course for him is to stay above the fray and let the Justice Department exercise its professional judgment.
But here’s the rub: With Trump, there’s so much to investigate criminally that one special counsel can’t do it all. Could you imagine one prosecutor in charge of addressing Trump’s finances and taxes, his hush-money payments, obstruction of the Mueller investigation, the Ukraine scandal, and post-election misconduct, for starters? It would be an impossible task for one team. One special counsel’s office couldn’t do it all, not in any reasonable amount of time, and it’s important for prosecutors to finish their work as quickly as possible. Three or four special counsels are needed. Under the regulations, each would be accountable to the attorney general.
If that feels like overkill, hark back to the reason it’s required. The laundry list of potential crimes is the product of the brazenness of Trump’s behavior over decades. Trump’s modus operandi has been to do whatever he considers necessary in the moment and thinks he can get away with. It worked for far too long. Trump has managed to avoid serious legal repercussions — not just during his four years as president, but throughout his life.
Trump’s presidency has ended. So, too, must his ability to dodge the consequences.
1 comment:
Of course I know that these were not YOUR words, but I take exception with the phrase "Clinton and Nixon were relieved of criminal liability." To the best of my recollection, Bill Clinton was never close to being formally suspected of any criminal activity, with the very highly marginal stretching the truth about a fully consensual sexual affair which had nothing at all to do with his performance of official duties.
On a separate note, given the anticipated timing of Benedict Donald's impeachment trial, wouldn't it pleasant if the multiply merited guilty verdict were to come down to fit in with Presidents Day!?
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