One of the trickiest challenges for incoming President Joe Biden is what do to about his predecessor, Donald Trump: investigate him for possible crimes, or leave him alone?
There’s a case for each route. Investigating whether Trump violated election law, obstructed justice during the Robert Mueller probe, or committed campaign-finance felonies would show no president is above the law and possibly deter future presidents from abusing their power. But it could interfere with Biden’s policy agenda while also making it look like Biden is using federal power to hurt a political rival.
Letting Trump off the hook might calm the political warfare that exploded on Jan. 6 with the riots at the U.S. Capitol. But if Trump committed crimes without consequence or even scrutiny, it would invite other presidents to do the same.
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Democratic Party stalwart John Podesta sees a compromise path for Biden. “He should do what he’s done over the last couple of weeks, which is stay focused on his job and let the rest take care of itself,” Podesta, founder of the Center for American Progress and a former top adviser to Presidents Obama and Clinton, told Yahoo Finance in a Jan. 19 interview. “Biden and Harris have stayed remarkably focused on their job, and that’s exactly what they should do going into this.”
Biden takes office as Congress is preparing for a second impeachment trial in the Senate. The House impeached Trump on Jan. 13 for inciting insurrection ahead of the Capitol riots, and the Senate will hold a trial while also confirming some Biden Cabinet nominees and rolling out Biden’s first legislative effort, a $1.9 trillion relief package. The trial could slow legislative efforts Biden says are urgent for rushing economic aid to millions of Americans and helping states and cities speed up distribution of coronavirus vaccines.
Biden seems sure to direct his Cabinet heads to allow nothing to interfere with other priorities including an economic recovery, climate policy, student-debt relief, racial justice and health care reform. Investigating or prosecuting Trump could be so explosive that it distracts from other Biden priorities and perpetuates partisan warfare in Congress, and the country.
Hands-off with the Justice Department
Biden has said he’d leave it up to the Justice Department to decide whether Trump’s actions as president warrant any kind of prosecutorial action. His attorney general nominee, Judge Merrick Garland, seems well-qualified to handle the matter. Garland has worked in prior Democratic administrations, but during 25 years as an Appeals Court judge he developed a strong reputation for impartiality and fairness. President Obama nominated Garland to the Supreme Court in 2016, but Senate Majority Leader Mitch McConnell wouldn’t let the Senate vote on the nomination. Had there been a vote, the Senate almost surely would have sent Garland to the high court.
“The selection of Merrick Garland to be attorney general underscores that [Biden] wants to be hands-off with respect to the Justice Department,” Podesta says. “Do exactly the opposite of what Trump did. Not reach in and direct the department to do what he wants, but to be the people's lawyer and do what's right, what's just, what's fair.”
What might that be, with regard to Trump? Some legal analysts think Mueller’s investigation into Trump’s ties to Russia left “bread crumbs” prosecutors could follow, either in an impeachment trial or an investigation of Trump following his presidency. The first impeachment of Trump didn’t stem from the Mueller probe, but from Trump withholding military aid from Ukraine while asking for dirt on Joe Biden. So nobody has yet followed Mueller’s leads.
Trump’s presidency also raised grave questions about whether there should be new laws or rules that prevent future presidents from trying to pressure global allies for political reasons or overturn legitimate elections, as Trump did. Trump used the office to direct business to his commercial properties. He and numerous aides routinely violated the Hatch Act meant to ban the use of government assets for political purposes.
Determining what to do about all that is a monumental undertaking that could take a team of prosecutors months to work out. Congress could appoint a bipartisan commission to make policy recommendations, such as revising the Justice Department view that a sitting president can’t be criminally prosecuted. Garland might quietly convene his own group of legal experts to assess the whole of the Trump presidency and the tradeoffs between prosecuting Trump and dropping the matter. They might identify some middle ground, such as publishing a report on Trump’s transgressions as a form of accountability, but declining to prosecute. Garland could take his time, too, with no need to take any action until Biden has made headway on his policy goals—perhaps even after the 2022 midterm elections.
The outcome of the Senate impeachment trial could affect what Garland decides to do. If the Senate convicts Trump, it would be a powerful, bipartisan statement of condemnation and probably be followed by a second resolution barring Trump from holding federal office again. Garland could plausibly conclude that conviction is punishment enough, and decide against any further prosecution.
But if the Senate fails to convict Trump, it could boost the pressure on Garland to do something, to demonstrate Trump can’t completely escape accountability. Trump still faces state and local fraud investigations involving his business, which could cause trouble enough. But those won’t address Trump’s actions as president or the flaws Trump exposed in the system of checks on presidential power. Biden isn’t saying so, but making sure no president ever abuses power the way Trump did is a priority equal to all the others.
Rick Newman is the author of four books, including “Rebounders: How Winners Pivot from Setback to Success.” Follow him on Twitter: @rickjnewman. Confidential tip line: [email protected]. Click here to get Rick’s stories by email.
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