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Biden’s challenge if he wins: What to do about prosecuting Trump?



  • Perhaps the most vexing question facing a potential Joe Biden presidency is what to do about the last guy who had the job: Donald Trump.
  • The list is long of possibilities for what Trump could be in trouble for on the other end of his presidency, when he’d no longer enjoy the immunity from criminal prosecution that comes with occupying the White House.
  • “Even the fact you’re considering those questions is itself earth shattering,” said Norm Eisen, a former counsel for House Democrats during the Trump impeachment proceedings.
  • Many Democratic insiders and other law enforcement experts say the best path would be to let the normal procedure play out with FBI-led investigators providing evidence to the relevant U.S. attorneys, who then would make their charging decisions alongside the top brass at the main DOJ.
  • But the prospect of a Trump probe is so significant that the Biden administration may want to go outside the typical law enforcement channels by appointing a new special counsel, impaneling a wider commission of outside legal experts or even removing the federal government entirely from the picture in deference to state investigators. 
  • Visit Business Insider’s homepage for more stories.

Joe Biden will have a very full plate should the 2020 presidential election break his way. He’d have to come up with plans for reviving the US economy and keeping Americans safe from COVID-19 while also juggling pent-up demands to address everything from racial disparity to global warming.

But perhaps the most vexing question facing a potential Biden presidency is what to do about the last guy who had the job: Donald Trump.

Everything that has happened over the last five years of the Republican’s roller coaster political career suggests he could end up being a defendant himself in any number of criminal cases brought by federal or state prosecutors once he no longer enjoys the immunity that comes from being president of the United States.

That alone is enough to cause heartburn among Democrats and longtime law enforcement officials who in interviews over the last week said tough decisions would loom for both Biden and his Justice Department as they consider the evidence, history and political implications swirling around what would be an unprecedented criminal case guaranteed to blot out the sun for pretty much anything else the new president hopes to accomplish on his agenda.

“The worst thing the new administration could do is give the appearance it’s on some kind of witch hunt to go back in time and rereview everything that may have happened in the Trump administration,” said Greg Brower, a former George W. Bush-appointed federal prosecutor and top FBI liaison to Congress who has also served in the Nevada state Senate. “It’s also equally bad for a new administration to just ignore it all and look the other way as it tries to move on.”

Lock Trump up?

There are no easy answers here, but many Democratic insiders and other lawmakers experts maintain the best path for a new Democratic president would be to let the normal procedure play out with FBI-led investigators providing evidence to the relevant U.S. attorneys, who then would make their charging decisions alongside the top brass at the main DOJ.

But others say that the prospect of a Trump probe is so significant that the Biden administration would want to go outside the typical law enforcement channels either by appointing a new special counsel, empanelling a wider commission of outside legal experts or even removing the federal government entirely from the picture in deference to state investigators. 

Any one of these ideas could help Biden avoid being blamed for the kind of 50-car collision that would be associated with a Trump criminal trial, a media spectacle unparalleled in US history that would subsume the country’s attention and possibly cripple the new Democratic president’s agenda before he can even put on his seat belt, let alone back out of the driveway.

Making matters even more complicated for Biden is the fact that one of the central themes of Trump’s presidency has been the politicization of federal prosecutions, both in threatening them against his own political enemies (“Lock her up!”) and savaging any attempts by his own Justice Department to target allies like Roger Stone or Michael Flynn

Trump also still has seven months to go before his first term is up, and Biden-backing Democrats say there’s no telling what else could happen that would give criminal investigators even more fodder should they have the green light to go where no other prosecutor has ever gone before in indicting a former president. 

For starters, they are bracing for the prospect that a lame duck Trump who loses in November would be unburdened by any personal political consequences and could try to preemptively pardon himself or grant clemency to everyone else inside his orbit who is facing legal exposure and where their possible cooperation with criminal investigators could spell more trouble for Trump. 

“Even the decision to look at a decision is going to be earth shattering, much less actually deciding to prosecute, to set aside a pardon or by arguing in court that it’s not valid,” said Norm Eisen, a former top Obama White House attorney who served as a lead counsel for House Democrats during the Trump impeachment proceedings. “Even the fact you’re considering those questions is itself earth shattering.”

Robert Mueller

Special counsel Robert Mueller testified last summer about the prospect Trump would be fair game for prosecutors once he’s no longer president.

Jonathan Ernst/Reuters

‘Once he’s out, he is like any other citizen and can be indicted’

Trump and his lawyers have said in legal briefs, courtroom arguments and media interviews that they’re prepared to play legal defense should the 2020 presidential election go to the Democrats. “Once he’s out, he is like any other citizen and can be indicted,” Rudy Giuliani, the personal counsel to Trump, told POLITICO in December 2018.

The list is long of possibilities for what Trump could be in legal trouble for on the other end of his presidency. 

For starters, US attorneys from the Southern District of New York labelled the president “Individual-1” as an unindicted co-conspirator when his former lawyer Michael Cohen pleaded guilty in 2018 for several crimes including campaign finance violations and tax fraud. Federal prosecutors from the same Manhattan office have also subpoenaed Trump’s 2016 inaugural committee as part of a probe into potential criminal conduct including accepting illegal foreign contributions. DOJ is investigating Giuliani over his business dealings in Ukraine and whether he failed to register as a foreign agent, while SDNY has also charged two of the former New York mayor’s associates with conspiring to violate straw and foreign money bans.

Then there’s Mueller, the former Russia special counsel who testified last summer about the prospect that the president would indeed be fair game for prosecutors if he’s no longer president.

While Mueller didn’t pursue his own charges against Trump, he nonetheless outlined in his final 2019 report 11 instances where his office collected evidence of possible obstruction of justice committed by the president during the course of the Russia probe. 

‘It’s hands-off completely’

Biden’s campaign declined comment about how the presumptive Democratic nominee would handle the questions swirling around possible Trump prosecutions, pointing to his comments on the 2020 campaign trail. 

During an MSNBC town hall in mid-May, Biden responded to a question about pardoning Trump with a pledge that he “absolutely” would not issue his own presidential reprieve to his predecessor should he win the White House.  

“You’re not going to say let’s just let bygones be bygones?” Lawrence O’Donnell, the emcee for the event, asked as a follow-up question. 

“It’s hands-off completely,” Biden replied. “Look, the attorney general of the United States is not the president’s lawyer. It’s the people’s lawyer.”

Biden’s answer notably represented a departure from two senators who ran to his left during the Democratic primaries and now are seen as potential vice presidential running mates.

Elizabeth Warren proposed an independent DOJ task force to investigate crimes by Trump administration officials. “Every Democratic candidate must commit to it — so Trump officials know they will be held accountable by career prosecutors one he is out of office,” the Massachusetts senator wrote on Twitter in mid-February just weeks before dropping out of the race.

During an interview with NPR last June, California Sen. Kamala Harris, who is also mentioned as a possible attorney general in a Biden administration, said that her DOJ “would have no choice, and that they should” prosecute Trump if he was out of office.

Both responses are different than the one Barack Obama gave in 2009 when he was president-elect and his left flank was clamoring for prosecutions of President George W. Bush, Vice President Dick Cheney and other GOP administration officials for alleged crimes tied to the Iraq and Afghanistan wars and the CIA’s “enhanced interrogation” programs. Obama in January 2009 told George Stephanopoulos in an ABC interview just before he and Biden were sworn in that he had “a belief that we need to look forward as opposed to looking backwards.

Manhattan District Attorney Cyrus Vance Jr. in 2020.

Manhattan District Attorney Cyrus Vance Jr. is leading an investigation into President Trump that has already found its way to the US Supreme Court.

Richard Drew / AP

‘A sense of reckoning’

In interviews with a half dozen prominent Democrats and former law enforcement officials, several downplayed the statements that Biden and his primary rivals made on the campaign trail. They said the White House candidates’ answers aren’t indicative of what a Democratic president and his DOJ would ultimately decide once the full picture is in front of them.

“There will be a strong presumption” of not relitigating the Trump era, Eisen said. But he also added, “Presumptions can be overcome.”

Much will depend on what happens between now and Election Day.

Trump has signaled he’s weighing a pardon for Stone as his longtime political adviser prepares to begin serving a three-year prison sentence connected to his November 2019 conviction for lying to the FBI and obstructing the House’s probe into Russian interference in the last presidential election. Trump has also taken sides in Flynn’s case, where a US Court of Appeals panel on Wednesday ordered a federal judge in Washington DC to accept DOJ’s request to back off from the guilty plea that Mueller previously secured from Trump’s former national security adviser. 

Questions also continue to swirl around Attorney General William Barr’s abrupt move last week to oust the top SDNY prosecutor, Geoffrey Berman, considering all of the Trump-related cases percolating in his office. And Democrats also remain on high alert for additional pardons from the president to help himself or other Trump administration officials and allies who were named in the impeachment investigation that started last fall over the president’s efforts to secure an investigation by Ukraine into Biden and his family.

Eisen predicted any decisions by a new Biden administration would be made only after the Trump era has ended and all the evidence has been obtained and examined, though he said there is already enough material just from the Mueller report to charge an ex-president Trump for obstructing justice and possibly a wider conspiracy. 

Faced with the predicament of not being seen as dictating the results, Eisen suggested Biden establish a commission of former lawmakers, state officials and other neutral experts in criminal law from both sides of the political aisle to examine the record and make recommendations on any charges.

“Not never Trumpers. Not anti-Trumpers. But people who will have credibility,” Eisen said. “Everyone is going to be attacked but as much as credibility as is possible under the circumstances.”

Others see the commission approach as a way to move the debate over Trump’s fate outside both DOJ and the White House.

“I see merits in creating a structure to channel the discontent, the anger and the concerns about the breaking of all sorts of norms,” said Joshua Geltzer, a former senior counterterrorism aide on President Barack Obama’s National Security Council and a counsel to the DOJ’s top national security official. 

It’s a structure that could generate “a sense of reckoning with the last few years but also doesn’t plunge Joe Biden into meting out punishment against someone who will just have been his political rival,” Geltzer said.

Others disagree. Brower said the notion of a comprehensive review of Trump’s actions that takes the process outside the normal DOJ channels is the exact opposite approach that Biden should be aiming for. 

“I’m not going to say it sounds crazy, but it doesn’t seem necessary or advisable,” he said. Instead, Brower said Biden should just back away and let DOJ run the Trump case to the ground. 

“They ought to be allowed to do their thing,” Brower said. “The idea there should be some commission which will look political seems to be duplicative of the ordinary and to some extent ongoing efforts. I just don’t see that making sense.”

Ronald Weich, the former top Obama DOJ liaison to Congress, predicted Biden follows the Obama model as it transitioned from the Bush administration.

“It was pretty serious stuff before. It was torture. Going to war with Iraq under false pretenses,” said Weich, now dean of the University of Baltimore law school. “I just think there’ll be an inclination to run the government in a forward looking manner.”

Geltzer had another solution: Pull the Justice Department out of the Trump probes entirely and let state and local prosecutors like Manhattan District Attorney Cyrus Vance proceed with their efforts. Vance is already before the Supreme Court waiting for a decision any day on whether he can subpoena for the president’s financial records as part of a grand jury probe into whether the Trump Organization falsified records connected to hush money payments used to silence women during the 2016 presidential campaign who claimed to have had romantic affairs with Trump.

Biden’s predicament if he wins also comes with other challenges. For one, Trump himself is likely to remain a force all his own, and the prospects are high he’d be unlike any recent former president who quietly receded into the background to let their successor occupy the spotlight.

“I can’t emphasize how loud I expect Donald Trump to be should he become an ex-president,” Geltzer said.

There are also timing questions. Let the Trump prosecution issue hang around too long and Biden risks seeing it dominate the early months of his new administration. But any quick or hasty moves he makes also have the potential to alienate allies who would look back on the Trump era expecting justice. 

“My first impulse, whether they decide charges or not charges, they should wrap up sooner or later so it doesn’t drag on,” Geltzer said. “But then my competing impulse is to not make it about that.”

“To set an arbitrary deadline then feels like the politically driven piece,” he added. “It is another tension and I guess the cop out where I land is I don’t think political leadership should be intruding into investigations. That’s a cop out answer if I ever heard one.”

Asked for comment for this story, Trump’s reelection campaign spokesman Tim Murtaugh responded by turning the tables back on the presumptive Democratic nominee.

“A bigger question is why Joe Biden lied when he said he didn’t know anything about the Gen. Flynn investigation when FBI documents show Biden personally suggested using the Logan Act to set up Flynn in the first place,” he said. “Biden might also answer if he will pardon all of the rioters, looters, and arsonists causing chaos in our liberal-run cities.”

Several allies of the president said in interviews they do not expect a Biden administration to pursue any prosecutions against the current GOP president in part because the Democrat wouldn’t want his presidency to get bogged down in a heavily politicized case.

“Biden’s watched it happen,” said one person close to Trump. “He doesn’t want his term to be even quasi-like Trump’s.”

Tom LoBianco contributed to this report.


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