By Renato Mariotti
On January 20, 2021, Donald Trump will no longer be the President of the United States. Later that year, he may become the first former president to face a criminal indictment. Trump is reportedly worried about being arrested, and he should be.
President-elect Joe Biden also has something to worry about: how to handle the misconduct of the 45th president.
This was always going to be a dilemma for Trump’s successor. After an openly self-dealing president like Trump, the nation needs to see that no American is above the law, and that there will be consequences for anyone—even a former president—who enriches himself at the nation’s expense or abuses his power.
But any prosecution of Trump, no matter how fair, will draw criticism from Trump’s supporters in an already-divided nation. Even non-partisan observers have reason to be concerned by the spectacle of the administration of a new president prosecuting the president who just left office. It’s essential for any stable democracy that elected leaders don’t use their new powers to punish their opponents after they’ve lost. No president has ever done it.
So Biden needs to pursue justice when it comes to Trump—but he also needs to ensure that any prosecutorial decisions about Trump are made in a manner that restores public faith in the Justice Department, rather than making it seem, as Trump has, like just another political arm of the White House.
Biden has promised to stay out of any prosecutorial decision, but that won’t be enough. Former President Barack Obama stayed out of the investigation of Hillary Clinton for her use of a private email server, but that didn’t stop rampant speculation regarding the role of then-Attorney General Loretta Lynch.
Biden will have one tool, however, that allows him to pursue justice while also ensuring that the process doesn’t appear to be tainted by politics. That tool is the special counsel—a prosecutor appointed not by Biden, but by his attorney general, who has a measure of independence from the administration. The special counsel should be a career prosecutor who has no connection to Biden or his team, and the Attorney General should publicly state in advance that he or she does not intend to place any restrictions on the special counsel and will follow his or her recommendation.
Unlike the recent investigation by former Special Counsel Robert Mueller, the scope of the special counsel’s authority should be made public at the start of the investigation in a manner that reveals as much as possible without violating grand jury secrecy rules. There should not be a question or controversy about the scope of the special counsel’s authority, as there was in the Mueller investigation.
Although special counsels are typically appointed due to a conflict of interest, such as an investigation of the president who appointed the Attorney General, the regulations provide that a special counsel can be appointed due to “other extraordinary circumstances.” The investigation and potential prosecution of the most recent former president certainly qualifies as an extraordinary circumstance.
It is, of course, impossible to make a decision regarding the prosecution of Trump in a manner that won’t be criticized by Trump and his allies, short of pardoning him or giving him a pass altogether. But appointing a special counsel takes the power away from Biden appointees and puts it in the hands of someone who is non-partisan and is not tied to the administration. That is the best move for the country, and the best realistic outcome Republicans could expect.
Federal criminal investigations often take a very long time to complete. But Trump presents a special case because some of Trump’s conduct during the Mueller investigation has already been investigated and documented by Mueller’s team. Any prosecutor could review their work and determine whether to prosecute Trump for obstruction of justice.
In May 2019, I was one of more than 1,000 former federal prosecutors who signed a letter stating that Trump would be charged with obstruction of justice if he were not president. There can be no serious question that sufficient evidence exists to charge Trump with obstructing justice, and leaving office does not absolve him of accountability.
For a prosecutor, however, that is not the only consideration. The special counsel also must determine, pursuant to Justice Department policy, whether there is a “substantial federal interest” in the prosecution and whether the evidence is sufficient not only to charge Trump but also to “obtain and sustain a conviction.”
I believe there is an interest in deterring future federal officials who could abuse their office to curtail investigations of themselves or their friends. I also believe that there is sufficient evidence to convict Trump, but a special counsel should make that determination, considering potential novel legal issues presented by the first-ever prosecution of a former president for his conduct as president as well as the challenge of trying a case before a jury that could contain Trump supporters.
There are certainly other matters that a special counsel should consider. Trump has directed many federal employees to violate the Hatch Act, which prevents federal employees from engaging in political activity while on duty, and some have argued that he could be criminally prosecuted for doing so. Proving that Trump coerced federal workers to engage in political activity won’t be hard, given that he held political rallies at the White House, and some government employees had to facilitate those events. But ordering a subordinate to violate the Hatch Act is not typically prosecuted criminally, and an argument can be made that the president should not be held to a higher standard than others. A special counsel can also consider that issue and make a non-political determination.
The special counsel can also consider Trump’s attempt to pressure Ukraine to investigate Biden’s son by withholding military aid, which was the subject of impeachment. I have explained elsewhere why that corrupt conduct does not fit into federal bribery and extortion statutes, which were not crafted with presidential abuses of power in mind. I suspect that a special counsel would reach the same conclusion, but if not, it would not take long for that matter to be investigated, given the work already done by the House of Representatives.
Some matters might take time to investigate. Ever since the New York Times reported that Trump paid $750 in taxes in his first year in the White House and paid no income taxes at all in 10 of the previous 15 years, there have been calls for a federal investigation to determine if Trump engaged in tax evasion. The public information regarding Trump’s taxes is not sufficient to establish whether he committed a crime, because avoiding the payment of taxes is not itself a crime. But this is certainly a reasonable matter to look into. Given that there has been an audit of Trump’s taxes, and that federal prosecutors can easily obtain his tax returns, a special counsel could quickly determine whether there’s enough evidence to warrant further investigation.
Regardless of the decisions made by the special counsel, Democrats will learn that even in a Biden administration, there are limits to what the criminal justice system can or should do. Some of the most objectionable actions taken by the Trump administration, such as the separation of children from their parents, don’t obviously fit into the four corners of a federal criminal statute.
That doesn’t mean that the Trump administration’s abuses should not be examined closely. The public deserves to know what their government did in their name and with their tax dollars, and Biden should consider the creation of a commission to conduct a non-criminal investigation to consider matters that the Special Counsel declines to prosecute, and publish a report that details what happened and makes recommendations for reform.
President-Elect Biden won election by promising to bring Americans together. One important way to do that is to strengthen our faith in our institutions and to help us move forward while ensuring that no one is above the law. There is a way to accomplish both objectives.