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The Case for Prosecuting Trump and His Cronies

How Biden treats his predecessor could determine the fate of American democracy

Joe Raedle / Getty Images

Up until five years ago, the criminalization of one’s political opponents was patently taboo in the United States. Presidential candidates did not haphazardly accuse their rivals of criminal behavior; incumbents did not threaten to jail their opposition or try to wield the Justice Department as a cudgel against their foes. Such rhetoric and tactics smacked of authoritarian nations overseas, not a mature, functional democracy.

But five years is a long time. President-elect Joe Biden will succeed the most corrupt president in American history by virtually any metric. President Donald Trump presided over the degradation of the rule of law, doled out favors to wealthy allies in exchange for their support, and misused government resources for personal gain, bilking at least $8 million from the government and his own supporters over the last four years. Though not all of Trump’s sins may amount to violations of federal law, it is hard to imagine that none of them did.

Biden often framed this presidential election as a “battle for the soul of the nation.” Now he faces a choice about how far to press that fight. Trump is no ordinary defendant, and prosecuting a defeated political rival is not a line to be crossed lightly, in any democratic society. Biden, whose approach to power is more institutionalist than radical, may be reluctant to press charges against a former president. But the culture of lawlessness Trump unleashed—and his own attempts to arrest foes on baseless grounds—justify such extraordinary measures. If Biden truly wants to move the country forward, he needs to show that there are consequences for the misdeeds perpetrated under Trump. Only by revisiting this grim chapter in American history, and by penalizing those who broke the law, can this country move forward.

Federal prosecutors have already identified two potential offenses committed by Trump himself. In 2018, former Trump lawyer Michael Cohen pleaded guilty to charges that he had violated campaign finance law by making a $130,000 hush money payment to Stormy Daniels in 2016. In his guilty plea, he said that he had acted “in coordination with and at the direction of a candidate for federal office,” obliquely implicating Trump. In his report last year, Special Counsel Robert Mueller outlined 10 incidents when Trump may have committed obstruction of justice during the Russia investigation. And while Mueller ultimately declined to recommend charges because of questions about the constitutionality of indicting a sitting president, that hurdle would no longer apply after January 20.

Those episodes represent the floor, not the ceiling, of Trump’s potential criminal exposure. Federal prosecutors will undoubtedly be interested in the intersection between his business relationships and official acts. Trump, brushing aside warnings from ethics experts during the transition four years ago, never fully divested from his business empire, paying close attention to the financial health of properties like his hotel in downtown Washington, D.C., and his Mar-a-Lago resort in Florida. They operated as a gaudy Versailles of sorts for the president, where those seeking favors from the government could spend freely for a shot at bending Trump’s ear, perhaps in violation of federal bribery laws. After he won the presidency in 2016, Mar-a-Lago doubled its membership fee to $200,000.

And then there are Trump’s tax returns. The trove obtained by The New York Times only reveals what Trump told the IRS over the last 20 years, but it does show a variety of dubious accounting techniques to reduce his tax burden. Some of those tactics, such as writing off his personal expenses and potentially paying his elder daughter as a consultant, may invite further scrutiny from IRS investigators and, ultimately, the Justice Department, if it decides to build a case against Trump for violating tax law.

Trump is hardly the only member of his administration whose behavior warrants scrutiny. His eldest son, Donald Trump Jr., has denied allegations that he committed perjury while testifying about the Russia investigation before Congress, as has Commerce Secretary Wilbur Ross, for misleading statements he made about the 2020 census. But as the clock ticks down on his presidency, Trump could issue a wave of preemptive pardons to allies and underlings for any crimes committed during his presidency. In 2018, Trump even asserted that he could pardon himself if he wished—a dubious proposition that would likely have to be resolved by the courts.

Presidential pardons have two major limits: They can’t be used to avoid impeachment, and they only apply to federal crimes. Even Trump can’t immunize himself from charges brought against him by state and local prosecutors. Manhattan District Attorney Cyrus Vance Jr. has spent the last year waging a legal battle in federal courts to obtain Trump’s tax returns and other Trump Organization records, even prevailing in a Supreme Court case this past summer. Vance told the justices that he would not try to indict Trump while he held the presidency. That protective shield expires at noon on January 20, 2021, and criminal charges could follow in New York.

Biden will likely face pressure to prosecute from others within his administration and his party. Vice Presidentelect Kamala Harris said during her own campaign that the Justice Department would have “no choice” but to prosecute Trump after he leaves office, telling NPR that “the president is not above the law.” But Biden may be more cautious; he is far less radical than the Republican campaign caricatures of the last year suggest. Reflexively moderate and deferential to the status quo, Biden as recently as last year expressed the wistful belief that Republican senators had been trapped in a sort of fugue state under Obama and, later, under Trump. That deference to tradition and longing for civility may turn him against prosecution.

But Biden has also witnessed firsthand the consequences of doing nothing. In the late aughts, the Obama administration took a forgiving approach to potential crimes committed by government officials under George W. Bush. Obama himself famously believed that “we need to look forward as opposed to looking backwards” on scandals like the CIA’s illegal use of torture. “I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders,” he explained, referring to intelligence officials. That culture of impunity may have helped fuel the rampant abuses by ICE and CBP officials under Trump.

Not prosecuting Trump would have other consequences, as well. He presided over a spree of self-enrichment and corrupt dealmaking without parallel in modern American history. To absolve him of his possible crimes would be to normalize his behavior—and set a distressing precedent in American political life for what voters should tolerate from their elected officials. Biden’s policy aspirations may be limited, but his civic aspirations are laudable. He wants to build a functioning government and restore a measure of lost faith in American institutions. To do that, he must allow his predecessor to be treated equally before the law. America cannot ignore Trump’s crimes, for the simple reason that its democracy may not survive their being repeated.