President Donald Trump during a campaign rally at Miami-Opa locka Executive Airport in Opa-locka, Fla., Nov. 1, 2020. (Doug Mills © 2020 The New York Times Company) Photograph:( The New York Times )
BEING PRESIDENT SHOULD MEAN YOU ARE MORE ACCOUNTABLE, NOT LESS, TO THE RULE OF LAW.
When the Biden administration takes office in 2021, it will face a unique, fraught decision: Should Donald Trump be criminally investigated and prosecuted?
Any renewed investigative activity or a criminal prosecution would further divide the country and stoke claims that the Justice Department was merely exacting revenge. An investigation and trial would be a spectacle that would surely consume the administration’s energy.
But as painful and hard as it may be for the country, I believe the next attorney general should investigate Mr. Trump and, if warranted, prosecute him for potential federal crimes.
I do not come to this position lightly. Indeed, we have witnessed two U.S. presidential elections in which large crowds have found it acceptable to chant with fervent zeal that the nominee of the opposing party should be jailed. We do not want to turn into an autocratic state, where law enforcement authorities are political weapons of the reigning party.
But that is not sufficient reason to let Mr. Trump off the hook.
Mr. Trump’s criminal exposure is clear. I was a senior member of the investigation led by the former special counsel Robert Mueller to determine whether Russia attempted to subvert our fundamental democratic source of political legitimacy: our electoral system. Among other things, he was tasked with determining whether Mr. Trump interfered with our fact-finding into this issue.
We amassed ample evidence to support a charge that Mr. Trump obstructed justice. That view is widely shared. Shortly after our report was issued, hundreds of former prosecutors concluded that the evidence supported such a charge.
What precedent is set if obstructing such an investigation is allowed to go unpunished and undeterred? It is hard enough for the executive branch to investigate a sitting president, who has the power to fire a special counsel (if needed, through the attorney general) and to thwart cooperation with an investigation by use of the clemency power. We saw Mr. Trump use his clemency power to do just that with, for example, his ally Roger Stone. He commuted Mr. Stone’s sentence, who was duly convicted by a jury but never spent a day in jail for crimes that a federal judge found were committed for the president. The same judge found that Paul Manafort, a former Trump campaign chairman, lied to us repeatedly, breaching his cooperation agreement. He, too, was surely holding out hope for a dangled pardon.
Mr. Trump can’t point to what the special counsel investigation did not find (e.g., “collusion”) when he obstructed that very investigation. The evidence against Mr. Trump includes the testimony of Don McGahn, Mr. Trump’s former White House counsel, who detailed how the president ordered the firing of the special counsel and how when that effort was reported in the press, Mr. Trump beseeched Mr. McGahn to deny publicly the truth and, for safe measure, memorialize that falsity in a written memorandum.
The evidence includes Mr. Trump’s efforts to influence the outcome of a deliberating jury in the Manafort trial and his holding out the hope for a pardon to thwart witnesses from cooperating with our investigation. Can anyone even fathom a legitimate reason to dangle a pardon?
His potential criminal liability goes further, to actions before taking office. The Manhattan district attorney is by all appearances conducting a classic white-collar investigation into tax and bank fraud, and the New York attorney general is engaged in a civil investigation into similar allegations, which could quickly turn into a criminal inquiry.
These state matters may well reveal evidence warranting additional federal charges. Such potential financial crimes were not explored by the special counsel investigation and could reveal criminal evidence. Any evidence that was not produced to Congress in its inquiries, like internal State Department and White House communications, is another potential trove to which the new administration should have access.
The matters already set out by the special counsel and under investigation are not trivial; they should not raise concerns that Mr. Trump is being singled out for something that would not be investigated or prosecuted if committed by anyone else.
Because some of the activities in question predated his presidency, it would be untenable to permit Mr. Trump’s winning a federal election to immunize him from consequences for earlier crimes. We would not countenance that result if a former president was found to have committed a serious violent crime.
Sweeping under the rug Mr. Trump’s federal obstruction would be worse still. The precedent set for not deterring a president’s obstruction of a special counsel investigation would be too costly: It would make any future special counsel investigation toothless and set the presidency de facto above the law. For those who point to the pardon of Richard Nixon by Gerald Ford as precedent for simply looking forward, that is not analogous: Mr. Nixon paid a very heavy price by resigning from the presidency in disgrace for his conduct.
Mr. Trump may very well choose to pardon not just his family and friends before leaving office but also himself in order to avoid federal criminal liability. This historic turn of events would have no effect on his potential criminal exposure at the state level. If Mr. Trump bestows such pardons, states like New York should take up the mantle to see that the rule of law is upheld. And pardons would not preclude the new attorney general challenging a self-pardon or the state calling the pardoned friends and family before the grand jury to advance its investigation of Mr. Trump after he leaves office (where, if they lied, they would still risk charges of perjury and obstruction).
In short, being president should mean you are more accountable, not less, to the rule of law.
Andrew Weissmann, a senior prosecutor in Robert Mueller’s special counsel investigation, is a senior fellow at the New York University School of Law and the author of “Where Law Ends: Inside the Mueller Investigation.”