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The Case for Prosecuting Trump

Putting the former president on criminal trial carries big political risks. But to let this lawless leader off scot-free may be more dangerous still.

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Activists with immigrant rights group Families Belong Together building a chainlink cage in front of the Capitol to protest children still separated from their parents by the Trump administration, National Mall, Washington, D.C., November 16, 2020

When Donald J. Trump leaves office, he will, like many con artists before him, leave behind a huge mess for others to clean up. The pandemic that his administration allowed to spread throughout the country poses a monumental public health challenge for the incoming administration of President-elect Joe Biden and Vice President-elect Kamala Harris; there is no telling how long it will take the economy to recover; and the country’s image, even among our staunchest allies, has seriously deteriorated—to name just a few consequences of Trump’s disastrous administration.

For many people, some serious punishment is in order, and the prospect of seeing Trump behind bars—and perhaps others in his administration as well—has become a possibility worth serious contemplation. By one tally, eight of Trump’s former aides have been charged with or convicted of felonies already, and according to one of Trump’s friends, he “worries about being arrested” after leaving office. Some potential crimes on the part of Trump himself concern his efforts, first, to obstruct the investigation of Special Counsel Robert Mueller and, second, to extort the Ukrainian government last year. At the same time, he and others in his administration could also be criminally culpable for serious abuses in the executive branch—ranging from efforts to impede mail-in voting in the election to the use of government resources to support Trump’s reelection effort. Among the challenges that will face the Biden-Harris administration, then, is the question of whether the Justice Department should pursue a criminal investigation of Trump and, perhaps, others in his administration.

The issue presents an array of subsidiary considerations—some prudential and political in nature, and others that are legal or more straightforwardly pragmatic. The weight of those concerns also changes depending on the particular facts at issue—whether one is considering, say, an investment of more time, money, and attention on matters that have been litigated in the public arena to the point of exhaustion, or those of more recent vintage, like the potentially deliberate degradation of vital government processes and norms in recent months, or the scandalous nature of Trump’s finances. Hanging over this all is the considerable fear that there is more to learn about just how much damage Trump and his associates inflicted on the country and our government during his time in office.

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The political implications of criminally investigating the Trump administration are no small matter, and the potential costs of doing so are real.

The centerpiece of Biden’s campaign was the promise of greater national unity following Trump’s virulently divisive presidency, but any investigation of Trump and his associates will be seen by many of his supporters (roughly 47 percent of voters in the election) as political retribution—the much-maligned “criminalization of politics.” It could look like a fishing expedition, and the administration could be accused of doing exactly what Attorney General William Barr has done—using the Justice Department to promote the president’s personal and political interests. This, after all, was a president who was impeached while in office—only the third president in US history to be so—and survived the challenge thanks to the overwhelming loyalty of his party in the Senate.

But the potential benefits of a serious criminal investigation are salutary and substantial. We generally like to see lawbreakers punished, and an orderly pursuit of criminal justice among members of the elite political class, including the president, would be a testament to the country’s commitment to the rule of law. Of course, Trump himself implemented a morally repugnant “zero tolerance” policy for border crossings that deliberately resulted in thousands of children being separated from their parents, so you might reasonably wonder why we should treat him any better than he has treated some of the most vulnerable people in the world—or why we should not fulfill the promise he signally failed to carry out and “drain the swamp.”

Some liberal legal commentators have presumed that criminal accountability for misconduct on the part of Trump in particular would be too damaging to the country to pursue—perhaps too “political”—but a decision to forgo such an inquiry will be just as “political” as the decision to pursue it. Indeed, an expert on state crimes in foreign countries recently told The New Yorker that it would be good “to have a completely corrupt guy getting thrown in jail” because “[a] big problem since Watergate is that élites don’t face accountability. It creates a culture of impunity that encourages the shamelessness of someone like Trump.”

At least when it comes to the rest of our society, federal law and the Justice Department’s own internal guidelines recognize the significant value of deterrence in addition to the retributive benefits of criminal prosecution. Those guidelines advise federal prosecutors that the decision to prosecute someone should include consideration of the “deterrent effect of [the] prosecution” and that “some offenses, although seemingly not of great importance by themselves, if commonly committed would have a substantial cumulative impact on the community.” Moreover, “the fact that the accused occupied a position of trust or responsibility which he/she violated in committing the offense…might weigh in favor of prosecution.” These same guidelines instruct prosecutors not to take a person’s “political association” into account, which cuts both ways: it is not a reason to prosecute someone, but it is also not a reason to give someone a pass. 

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President Barack Obama’s approach to misconduct during the George W. Bush administration was not much different from the position that Biden and Harris have so far taken: before taking office, Obama famously announced that “we need to look forward as opposed to looking backwards,” but that would he would leave it to the Justice Department to pursue cases if “somebody has blatantly broken the law.” That generosity of spirit may have seemed sensible at the time, but the absence of any accountability—even for those who designed the Bush-era torture program—contributed to where we find ourselves today, dealing with the fallout from an administration that has viewed itself as above the law.

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Of course, a criminal pursuit of Trump and his associates would present unique challenges. Two particular obstacles loom large—Trump’s use of his pardon power prior to leaving office and the statutes of limitations on any crimes—but neither provides a compelling reason to waive criminal investigations in their entirety.

It is not hard to imagine, as one observer has posited, that Trump would “pardon himself, friends, family members and Trump business entities and employees for any crime they might have committed before or during his presidency,” but such a maneuver would raise several legal issues. Brian Kalt, a law professor at Michigan State University who studied the pardon power and the possibility of prosecuting an ex-president long before Trump’s rise, told me that there is “strong support but not unanimity” among academics that presidents cannot pardon themselves. He favors this view himself, but he cautioned that, because the issue has never been addressed by the Supreme Court, there is no way to predict how the court would resolve it. (In theory, Trump could briefly cede his office to Vice President Mike Pence to deliver the pardon, but there is still no way to predict what prosecutors and courts would do with such a transparent ruse.)

There is less uncertainty about the president’s ability to pardon others, particularly given the historical precedents in the area and the expansive language the Supreme Court has used in cases on the issue. We have seen what Kalt described to me as “offense-based blanket pardons”—broad pardons that specify the conduct at issue and describe a class of individuals without individually naming them—as when President Andrew Johnson, shortly after the Civil War ended, issued a proclamation granting “amnesty to all persons who have directly or indirectly taken part in the rebellion.” We have also seen what Kalt called “general pardons”—pardons that specify an individual with a sweeping description of possible conduct—as when President Gerald Ford pardoned his predecessor Richard Nixon “for all offenses against the United States” that Nixon “committed or may have committed or taken part in” while he was in office. Conceptually, at least, there is no barrier to merging the two and issuing a pardon for, say, all crimes that were or may have been committed by anyone who served in the Trump administration.

More important, however, is that none of this could prevent the Justice Department from conducting whatever investigation it wants. A pardon could be raised as a defense in a criminal prosecution once it begins, but it would be difficult for someone to find a legal vehicle to stop the government from even investigating—particularly since, at the investigative stage, the government could argue that it has no idea whether anyone will ever be charged, much less who it might be and whether they would actually be covered by a valid pardon. There is also the matter of constitutional realpolitik: a Trump-friendly majority on the Supreme Court could justify any interpretation of the pardon power that it likes, but as a practical matter, that may depend on the seriousness of the offenses at issue, which we may not know at the moment. It could take years for this sort of litigation to be resolved, but, strictly as an investigative and prosecutorial matter, there is no compelling reason to prejudge the outcome.

The possibility that a criminal prosecution could be barred by statutes of limitations is even less compelling. As many people writing on this subject have noted, the statute of limitations for federal crimes is typically five years, but there are significant exceptions to that rule. Some crimes have longer statutes of limitations, including bank fraud, which has a ten-year statute of limitations, and many tax crimes, which have a six-year statute of limitations. The most potent tool for white-collar prosecutors is the wire fraud statute, which broadly prohibits schemes to defraud to obtain money or property; that crime usually has a five-year statute of limitations, but it is ten years if prosecutors can establish that the offense “affect[ed] a financial institution”—something that can be established if, for example, the conduct exposed that institution to the possibility of a loss.

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There are ways to further extend the temporal reach of these and other criminal statutes. Some people have wondered whether a court could exclude the four years that Trump was president, but the theory is untested and would face several substantial legal hurdles. A more straightforward method of extending the statutes of limitations might be using a broad law that allows the Justice Department to obtain up to three additional years to bring charges if it is seeking evidence from a foreign country. The statute is not well-known among the public or even among many prosecutors, but it is commonly used in cases involving foreign conduct, including cases involving even peripheral overseas financial transactions.

Drew Angerer/Getty Images

President Donald Trump standing next to one of several turkeys he’s pardoned during his term, White House, Washington, D.C., November 26, 2019

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Naturally, the Justice Department’s willingness to navigate these prudential and procedural difficulties would depend heavily on the gravity of the underlying conduct at issue.

Many have suggested that Trump and others in his administration could be criminally prosecuted based largely on information that is already in the public domain, but it cannot be stressed strongly enough that we do not know what we may discover after his administration leaves office. Despite fears of an effort by outgoing Trump officials to destroy potential evidence, the Biden administration would have access to a huge trove of government documents that the Trump administration failed or refused to hand over even to Congress. Moreover, Trump and his advisers have squelched internal dissent by attacking whistleblowers, lashing out at former officials, and firing inspectors general—and many of the government’s best career officials have left as part of the broader deterioration of the federal bureaucracy under Trump—but once he leaves office, current and former government officials may feel emboldened to come forward with their own accounts of wrongdoing.

At that point, Trump will also lack the authority to dangle further pardons to deter others from cooperating with investigators, as he did throughout the Mueller investigation. Those who have received pardons could probably still refuse to testify to avoid self-incrimination under state law, but they may calculate that cooperation is their best option if, depending on the conduct at issue, the alternative is increased scrutiny from state and local prosecutors.

Trump’s time in office has already provided fertile ground for two major investigations of conduct by him and his advisers. The Mueller investigation into the Trump campaign’s contacts with Russia in 2016 came up short in establishing so-called “collusion,” but it produced considerable evidence that Trump engaged in obstruction of justice through his efforts to impede Mueller’s investigation. It also produced evidence of false statements made by Trump and others to Mueller’s team and to Congress.

But it is hard to believe that senior officials in the Biden Justice Department would want to revisit any of this. The conclusion of Mueller’s own report was equivocal in its assessment of Trump’s conduct—stating that “while this report does not conclude that the President committed a crime, it also does not exonerate him.” The country also already endured years of incessant coverage of an investigation that was not as well executed or as comprehensive as many had expected, even by the account of one of Mueller’s own senior deputies, Andrew Weissmann—who, complicating matters further, has also said that there may need to be still more work to shore up any follow-on prosecutions.

A do-over of the events that led to Trump’s impeachment seems similarly unattractive. It is not a stretch to argue that Trump’s threat to withhold military aid to Ukraine last year in exchange for announcing an investigation of Biden violated the federal bribery statute on the part of Trump and anyone else in his administration who actively facilitated the effort. Here, too, we lack a complete evidentiary record because the Trump administration refused to produce key witnesses and documents to House Democrats (who, in a strategic decision that was debatable at the time, opted not to pursue the matter through the courts).

As a practical matter, what happened was clear enough based on the testimony from administration officials who were outside of Trump’s circle of closest advisers, but a criminal investigation would require a concerted effort to develop the evidentiary record that House Democrats did not. Moreover, a criminal investigation based on a failed impeachment proceeding would likely have limited public support, particularly since only a bare majority of Americans believed that Trump should have been removed from office.

Both the Mueller and House impeachment investigations further established, however, that when Trump is involved, the actual scale and depth of misconduct are often significantly worse than they first appear. As a result, there is reason to be concerned about the conduct of Trump and others in the administration in several areas in which the public record suggests the possibility of serious misconduct. Where there are considerable long-term interests in the proper functioning of our government, that would allow officials to explain that the investigative imperative—in both appearance and in fact—goes well beyond an effort to punish Trump for partisan political reasons.

First, if Trump or other administration officials took part in an effort to deliberately slow the delivery of mail-in votes this year in order to influence the election outcome, this may have violated the law that prohibits conspiracies to impair federal government functions. It is legally irrelevant if any such effort was unsuccessful—thanks, in large part, to the huge public and political outcry at interference in the US Postal Service that appeared designed to hamper its capacity to deal with mail-in ballots.

Second, the administration’s refusal to initiate the transition process for the incoming Biden administration raises similar issues. The delay is impeding steps that are critical to the continuity of our government—in particular, to protecting the security and health of the public—and there is no conceivable policy rationale, since even if the Trump campaign’s frivolous legal efforts to challenge election results somehow succeeded, the transition authorization could be revoked. The most benign scenario under the law is that our country is needlessly suffering from Trump’s psychological inability to acknowledge that he lost the election, but if any part of this delay is intended to hurt the incoming Biden administration, that would be a scenario well worth deterring in the future by punishing now.

Third, in the run-up to the election, administration officials have made a mockery of the Hatch Act—the law that prohibits federal employees from engaging in certain forms of political activity—including by using public statements and appearances on behalf of the government to advocate for Trump’s reelection. Violations of the law are typically low-level civil offenses, but a narrow portion of the Hatch Act makes it a crime to intimidate or command a federal employee to engage in political activity, and it is not hard to envision a criminal investigation focused on the most egregious statutory violations, including speeches from the White House and a naturalization ceremony at the Republican National Convention. Ironically, Trump himself may not have had to directly coerce anyone to violate the law since he is surrounded by a cadre of singularly unscrupulous sycophants, but those people may have had to push other federal officials to arrange and provide logistical support for these activities.

Saul Martinez/Bloomberg via Getty Images

Demonstrators holding placards during an anti-Trump rally in West Palm Beach, Florida, November 11, 2017

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The pre-presidential conduct of Trump also appears to have been rife with misconduct that may very well have been criminal. As Judge Jed S. Rakoff has recently observed in the Review, this country lacks a robust white-collar criminal enforcement regime. But if we actually had one, Trump—along with members of his family and others—could plausibly have been charged years ago with crimes related to Trump’s fake university, scam charity, and fraudulent real estate sales practices. Trump and others in his orbit remain legally vulnerable for more recent conduct prior to taking office, but here, too, there are some crucial practical and legal distinctions.

To start with, Trump’s longtime lawyer Michael Cohen pled guilty to campaign finance violations based on payments that he arranged in the run-up to the 2016 election to the adult film star Stormy Daniels in order to prevent her from going public with an affair that she had had with Trump. Cohen said that he did this at the direction of Trump. It is one thing for a prosecutor to take the word of someone as compromised as Cohen when he is inculpating himself, but it would be a far more precarious matter to use his testimony against Trump, and any reasonable prosecutor would have serious doubts about doing so.

In recent months, there has been greater focus on reportedly wide-ranging investigations by Manhattan District Attorney Cy Vance Jr. and New York Attorney General Letitia James that appear to be focused on financial misconduct related to the Trump Organization’s finances. (James’s inquiry is, for the moment at least, merely a civil investigation.) Depending on whether, where, and why those finances may have been misrepresented, that conduct could entail bank fraud, insurance fraud, or tax fraud. The investigations are also free from interference from Trump’s pardon power, which only covers federal crimes.

It is far from clear, though, that these investigations will ever yield significant evidence of criminal conduct on the part of Trump himself or those closest to him. As I have noted elsewhere, a theory of fraud based on a comparison of documents describing the Trump Organization’s operations and financial condition would need to determine whether the relevant figures purport to measure the same thing; what the entirety of accompanying disclosures provided, both in writing and in any oral discussions, based on the particular context at issue; and the full extent of involvement on the part of accountants, lawyers, and auditors—all of whom could provide distinct layers of insulation for Trump and his company’s inner circle.

Indeed, experts who have reviewed some of the relevant documents have tended to be skeptical about the prospect of serious legal liability, at least for Trump personally. And although both Vance’s and James’s offices have some exceptional lawyers, it is rare for inquiries at this level of legal and factual complexity to be investigated and successfully prosecuted. (One recent effort by Vance’s office, which developed into a joint investigation with the Manhattan US Attorney’s office, appears to have been so poorly handled that the case prompted outrage on the part of the presiding judge and was dismissed.)

Vance may feel emboldened to vigorously pursue Trump after earlier, missed opportunities to do so, particularly given the upside for an ambitious New York politician. It could also be tempting and politically convenient for the Biden Justice Department to cede the ground entirely to Vance. But it would set a questionable precedent for the federal government to let a powerful local politician handle an effort as nationally and politically consequential as the criminal investigation of an ex-president—and it is not hard to see how a different constellation of political affiliations could produce a similar effort in the future that would be far less palatable to liberals.

Further complicating the matter is that while Vance has been diligently working through the courts to obtain Trump’s personal tax returns, we now have some insight into those documents thanks to The New York Times, which obtained over twenty years’ worth of returns for Trump and his companies, including for the years 2016 and 2017. The paper’s reporting revealed, among other things, that Trump had paid only $750 in federal income taxes in 2016 and 2017 and nothing at all in ten of the prior fifteen years, thanks to a strikingly aggressive approach to reporting business losses and taking deductions.

Again, however, Trump may have been insulated from many, if not most, of the key decisions about his tax strategies by lawyers and accountants. That does not mean those decisions were proper, but an investigation would need to consider and evaluate the work and appropriateness of the judgments of those professionals, as well as what (if any) instructions Trump gave to them. Under the circumstances, even broad, directional involvement on the part of Trump would warrant serious scrutiny. For instance, Trump paid Ivanka Trump about $750,000 in “consulting fees,” but you might reasonably expect him to know whether and to what extent he was paying his own daughter, and also to know what, if anything, she was doing for that money.

The paper also reported that, in 2016, Trump “engineered a sudden financial windfall” of “more than $21 million in what experts describe as highly unusual one-off payments from the Las Vegas hotel he owns with his friend the casino mogul Phil Ruffin”—income that Trump may have used to fund a $10 million contribution to his presidential campaign. The flow of money suggests the possibility of tax and campaign finance law violations, though experts consulted by the Times were careful to note that “more information was needed to assess the legitimacy of the payments.”

Experts have also noted that tax fraud cases are very difficult to win, and the federal limitations period for criminal statutes potentially implicated by this conduct may expire in the coming years. But if a federal investigation were undertaken in earnest, it could be possible to extend those deadlines for a significant period of time by making requests for evidence to foreign governments concerning, say, their assessment of the value and operations of Trump’s foreign properties, as well as records pertaining to international banking transactions and overseas shell companies.

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Under the circumstances, any sort of blanket commitment on the question of federally prosecuting Trump and others in his inner circle—whether we call it looking “forward as opposed to looking backwards,” “turning the page,” avoiding the “criminalization of politics,” or the like—would be irresponsible. Even worse would be the sort of “global settlement” recently floated by Joe Lockhart, one of President Bill Clinton’s press secretaries, in which Trump would concede the election in exchange for immunity from criminal prosecution. 

One plausible way for the Biden-Harris administration to address the issue would be to differentiate conduct during Trump’s presidential tenure from conduct prior to it. Those issues where there are compelling reasons at the moment to probe further—particularly on matters related to mail-in voting, the transition, and the Hatch Act, all of which may also benefit from legislative remedies to avoid future abuses—could be left to further investigation by Congress or presidential commissions, which could refer any serious misconduct to the Justice Department for criminal prosecution.

Such an approach could have an adverse effect on possible criminal prosecutions—for example, Oliver North’s convictions related to the Iran-Contra affair were overturned in 1991 because he had been immunized in testimony before Congress—but care could be taken to avoid investigative techniques that might prejudice such cases. And although plenty of people have, with good reason, been critical of House Democrats’ oversight efforts during the Trump administration, the committees are still capable of doing impressive work when left to do so without undue interference from political partisans and the media.

As for Trump’s conduct before he became president, a targeted but serious federal probe of his finances and those of his companies—particularly in light of the Times’s reporting on his tax affairs, and of the Mueller investigation’s decision not to pursue the issue—seems both warranted and long overdue. The effort could draw on the work of Vance and James—the Times reported over the summer that Vance’s investigation is “still at an early stage”—with the understanding that federal authorities would take the lead if there is a basis to prosecute Trump or his close advisers. Conservative critics may claim that Trump is being persecuted, but the presidency should not be a get-out-of-jail-free card. Moreover, some investigative due diligence, even as a general matter, could help to slow or perhaps even help to reverse the trend toward ever-increasing presidential authority and executive fiat that we have seen since the George W. Bush administration.

At a bare minimum, the incoming attorney general should provide the public with an intelligible approach to how the Justice Department will consider these issues, something that could be laid out as broad principles defined during a confirmation hearing. In any case, it is vital for the department to keep its options open, and not prematurely foreclose on the possibility of criminal investigations. That is all the more important given the very real possibility that we will discover more misconduct—possibly, far more serious misconduct than we know—after Trump’s administration leaves office and his grip on government finally comes loose.

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