Biden faces politically thorny decision on Trump prosecutions

One of the biggest tests awaiting President-elect Joe Biden after he takes office is how his Justice Department will handle calls from some Democrats to investigate and prosecute President Trump.

Trump will lose expansive legal protections after Jan. 20, and the new administration will have to decide whether to follow up on congressional and local law enforcement investigations or try to turn the page on the Trump era and avoid the political risks that could come with such an unprecedented court case.

No former president has ever been charged with a crime after leaving office, but Trump is already the subject of a number of probes. In New York, the state attorney general and the Manhattan district attorney are conducting fraud investigations into his past business practices.

And Biden will likely face pressure from some Democratic lawmakers and voters to go after Trump for what they believe has been a presidential term rife with abuses of power.

“Donald Trump along with his worst enablers must be tried for their crimes against our nation and Constitution,” Rep. Bill Pascrell (D-N.J.), a veteran of the House Ways and Means Committee, said in a statement this past week. “Importantly, any further abuse of the sacred pardon power to shield criminals would itself be obstruction of justice, and any self-pardons would be illegal.”

While there is some disagreement among legal scholars, many agree with the position the Department of Justice (DOJ) took in 1974 that a president could not pardon himself.

The Justice Department next year will have to consider whether local and state investigations, as well as allegations that Trump abused the power of his office, merit a federal prosecution.

Brian Kalt, a constitutional law professor at Michigan State University, cited former Presidents Nixon and Clinton in noting that previous administrations have had to grapple with the actions of their predecessors. But he said Biden will inherit a very new situation when it comes to the allegations of misconduct against Trump.

“Not prosecuting Nixon didn’t incentivize presidents to do bad things, because he still was forced to resign in disgrace,” Kalt said. “Clinton’s crimes were not as serious, those consequences weren’t as serious, but he did have to pay a large fine and give up his law license and then there was some amount of disgrace there.”

“In Trump’s case, I think that without a prosecution, you can’t really say that he’s suffered any consequences,” he added.

Biden has expressed doubts about the prospect of prosecuting Trump, saying it would be a “very unusual thing and probably not very … good for democracy” but that he would ultimately leave the decision up to the DOJ.

“Look, the Justice Department is not the president’s private law firm,” Biden told NPR in August. “The attorney general is not the president’s private lawyer. I will not interfere with the Justice Department’s judgment of whether or not they think they should pursue the prosecution of anyone that they think has violated the law.”

When Biden was vice president, the Obama administration investigated its predecessor’s use of torture during the interrogation of suspected terrorists but ultimately declined to prosecute any officials for their role in the “enhanced interrogation” program. Former President Obama had criticized the techniques but insisted that he intended to “look forward as opposed to looking backwards.”

Biden has struck a similar tone on unity in the lead-up to his inauguration.

Over the past four years, Trump has been protected in large part by a longstanding DOJ policy memo that holds a president cannot be prosecuted while in office. But that legal shield goes away once he leaves the White House, exposing him to a mounting number of investigations.

Manhattan District Attorney Cy Vance Jr. (D) has subpoenaed the president’s tax returns and financial records going back eight years as part of a probe into “possibly extensive and protracted criminal conduct” at Trump’s businesses.

New York Attorney General Letitia James (D) is conducting a civil probe into whether the Trump Organization inflated the value of its properties in order to get tax breaks and obtain loans.

The DOJ’s decision on whether to bring federal charges against Trump would not affect or prevent state or local prosecutors from pursuing a case.

Legal experts say that one vulnerability for Trump involves Michael Cohen, the president’s former personal attorney who is serving a three-year federal prison sentence for his role in funneling money to two women who claimed to have had affairs with Trump. Cohen maintains that Trump directed him to carry out the scheme, and although the president has not been charged with any wrongdoing by the Manhattan U.S. attorney’s office, he is referred to throughout the Cohen indictment as “Individual-1.”

Trump has denied any wrongdoing and dismissed investigations into his business and official conduct as politically motivated.

Jay Sekulow, Trump’s attorney, did not respond to a request for comment on potential legal troubles for the president after he leaves office.

Federal prosecutors could also follow up on former special counsel Robert Mueller’s investigation, with some experts saying the report shows Trump committed obstruction of justice in trying to impede the Russia probe.

Kristy Parker, who served at the Justice Department for nearly 20 years before leaving in 2017, said it will be an incredibly complicated decision when federal prosecutors consider whether to charge Trump with a crime.

Parker, who has spent most of her career as a civil rights prosecutor, joined more than a thousand other former DOJ officials in signing an open letter in 2018 saying the Mueller report described conduct by Trump that would typically “result in multiple felony charges for obstruction of justice.”

But she acknowledges that the Biden administration will have to weigh a host of factors when deciding whether to pursue any charges against Trump.

“That is hard on a whole host of levels because the incoming administration has pledged to rebuild and reanimate the democratic institutions that President Trump has ground down. And that presents you with a particular conundrum when it comes to actually prosecuting the outgoing president, because you have to be very careful in the way that you do it,” Parker said.

“It’s an important needle to thread, making sure that the principle that no one is above the law is observed, while at the same time observing the principle that the department should never appear to be doing justice in a politicized way,” she added.

There are a range of factors that could dissuade the DOJ from pursuing a case against Trump, from arcane legal issues that could help shield a former president to the political considerations involved in an administration going after a sitting president’s political opponent.

And while Biden has said he would not wade into the department’s decisionmaking, the president-elect may be reluctant to have his administration pursue such a politically divisive case, as NBC News reported this past week.

Kalt, the Michigan State University professor, said that federal prosecutors may be inclined to let local and state law enforcement take the lead on any criminal matters, but if the DOJ were to pursue charges against Trump, it would need to be confident that its case is airtight.

“I don’t think you ever want to bring a case against someone unless you think you’re going to win, but I think against someone like the former president, you really, really, really don’t want to bring a case unless you know you’re going to win or at least get a plea deal out of it,” Kalt said. “It raises the bar high.”