At noon on January 20, accepting that he does not have to be dragged out of the White House as a traitor, Donald Trump will make one last round over the South Lawn, take his seat inside Marine One, and it will be gone.
From that moment on, Trump’s brutal term as president of the United States will be over. But in an important aspect, the challenge of his leadership will only be just beginning: the chance of being charged with crimes committed before taking 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 councilor under Barack Obama. “This has been a very successful presidency that raises tough questions about what happens when Trump leaves office.”
For the past four years, Trump has been protected from legal threat by a justice department memorandum that governs the presidential criminal prosecution. But the second one is on board that primary helicopter and heading down to the horizon, all bets are off.
Manhattan district attorney Cyrus Vance is actively investigating Trump’s affairs. The focus outlined in court documents is “Trump Group’s widespread and protracted criminal behavior” including potential bank fraud.
A second major investigation by frightened federal prosecutors in the southern New York area has led to the conviction of former Trump lawyer Michael Cohen. He pleaded guilty to campaign finance breaches related to the “hush money” paid to Stormy Daniels, the adult film actor who claims to have had an affair with Trump during the main 2016 campaign.
During the prosecution, Cohen proclaimed “Individual 1” – Trump – as the supreme master behind the philosophy. Although the investigation was technically closed last year, costs could be revisited once Trump’s effective defense is built.
It all marks a very difficult and difficult legal challenge, full of political risk for the incoming Biden administration. Should Trump be investigated and perhaps prosecuted for crimes committed before and during his presidency?
“It looks like the incoming administration needs to address some form of these issues,” said Bauer, co-author of After Trump: Reconstructing the Presidency. decisions to be made by the government on how to deal with it, with the potential to be a source of division. “
Any attempt to hold Trump to account criminally in federal prosecution would be the first in U.S. history. No president has ever been sought in such a way by his successor (Richard Nixon was abused by Gerald Ford’s controversial primary pardon).
Former leaders have believed that it is better to look ahead in the name of national healing than backwards to previous failures. And for good reason – any allegation might be lengthy and difficult, attract a lot of attention, and bring out the incoming president’s accusations that they were acting as a dictator tinpot hiding their political enemy.
The fact that Trump’s allegation is capable of being debated at all is a testament to the remarkable nature of the past four years. Those who argue for legal aid accept that there are powerful protests in going after Trump but urge people to think about the alternative – the dangers of inaction.
“If you do nothing, you say 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 their power is not being effectively investigated, ”said Andrew Weissmann, chief prosecutor at the Mueller investigation. to coordinate between Russia and Trump in 2016 campaign.
As leader of one of the three major teams that responded to special adviser Robert Mueller, Weissmann chaired what he called Trump’s “lawless white house.” In his new book, Where Law Ends, he argues that the 45th president’s prevailing view is that “following the optional rules and breaking them comes at the lowest possible cost. , if not zero ”.
Weissmann told the Guardian there would be a price to pay if that scene went unnoticed once Trump leaves office. “One of the things we learned from this leadership was that our audit and balancing system is not as robust as we thought, and that would not be exacerbated by not holding it to account. “
Bauer, who was a mentor to Biden during the primary campaign but has no role in the transition team, is also concerned that a kind of dual defense would be established. Allegations cannot be brought while in office under the rules of the justice department, but under such dual immunity that they could not be prosecuted once they leave the White House in the interests of “national healing”.
“And so the defensive president comes and goes, 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 it clear that he was less willing to accuse Trump, saying he would “probably not be very good for democracy”. But he has also made it clear that he would leave the decision to his attorney general, following the justice department independence norm that Trump has once again violated.
Other prominent Democrats have taken a more bullish stance, pressuring the incoming attorney general to be aggressive. Through the major Democratic debates, Elizabeth Warren called for the establishment of an independent action group to investigate Trump’s corruption or any other criminal activity in office.
Kamala Harris also took a stand that could lead to concerns about the new administration. The vice president, who asked NPR last year if she would like to bring charges with the Department of Justice, replied: “I believe they would have no choice and they should, yes. “
There are a number of ways in which the justice department could address the question of whether or not Trump should be adopted. One would be through a publication that is not yet known, after new information came to light.
Weissmann indicates that the Biden administration will have access to a wealth of documents previously withheld from Congress during the impeachment investigation, including intelligence agency and state department files. There may be an official communication sent by Jared Kushner and Ivanka Trump through their personal emails and messaging apps – an ironic move by the Hillary Clinton flak that suffered from the Trump family in 2016 for use of her personal email server – also available for monitoring.
But the two most likely avenues for pursuing any criminal investigation would be related to Trump’s use of his primary power of pardon and obstruction of justice. “Trump issued a series of pardons marked largely by political self-interest,” Weissmann said.
While the ultimate power of forgiveness is broad, it is not, as Trump has said, absolute – including the “full right” to forgive oneself. He is not exempt from bribery charges if he is found to have pardoned someone in exchange for the silence in a lawsuit.
For Weissmann, the way Trump always mocked his comrades – including Roger Stone and Paul Manafort – with the promise of forgiveness amid federal protests was particularly egregious. “There may be a legitimate reason to forgive someone, but what is a legitimate reason to forgive but to stop that person from cooperating with the government?”
Perhaps the strongest evidence of criminal injustice compiled against Trump relates to the obstruction of justice. Former national security adviser John Bolton went so far as to say that preventing justice was a “way of life” to advance his own political interests.
In his final report on the Russian investigation, Mueller cited 10 examples of Trump’s behavior that could be legally described as obstructive. Although Mueller declined to say whether they met the standard for costs – U.S. attorney general Bill Barr suggested they did not, but gave no explanation for speculation – he left. e them in clear sight for any federal prosecutor to come back.
In one of the worst incidents, Trump tried to scrape the special council’s own scrutiny by ordering his White House adviser, Don McGahn, to fire Mueller. When that was made public he added to the abuse by ordering McGahn to deny the truth in a cover-up attempt.
Weissmann, who played a key role in gathering the evidence against Trump in the Mueller report, said such a blockage goes to the heart of why Trump should oppose prosecution.
“When the president, whoever he is, obstructs the scrutiny of a particular council, there must be consequences. If you can stop a criminal investigation but never have to worry about being accused, well, there’s no reason to ever hire a particular adviser. “