As he prepares for his presidency, one of the biggest dilemmas Joe Biden faces is what to do with the seated commander in chief. Donald Trump’s refusal to admit and his triggering of an attempted coup are only his recent crimes against American democracy. As President, Trump cannot be charged with any crime. But after January 20, when Biden takes over the presidency, Trump’s protected status will end and he will be nothing more or less than an ordinary citizen.
As such, Trump will be vulnerable to prosecution. There are already a number of criminal offenses that he can plausibly be accused of. Trump’s impeachment clearly showed that he was using the office of president for corrupt purposes. The Müller report and Trump’s own words documented a clear obstruction of the judiciary on many occasions. Trump’s former attorney Michael Cohen was convicted and jailed for using campaign funds to buy the silence from actress Stephanie Clifford (who goes by the stage name Stormy Daniels) over her sexual association with Trump. As a private citizen, Trump can be charged for his own role in this matter.
The New York Times has documented that the Trump organization has dealt with creative accounting that may be beyond the law. Like the newspaper reported On Thursday: “Two separate New York State fraud investigations into President Trump and his companies, one criminal and one civil, have been expanded to include millions in tax write-offs on advisory fees, some of which appear to have gone to Ivanka Trump, according to People Knowing. “
Beyond these cases, there are numerous acts Trump has committed as president, such as his deals with the Saudi government, that have not been adequately investigated because Trump was able to block congressional oversight. Trump’s ability to hold off control by Congress also ends with his presidency, and an avalanche of revelations of wrongdoing can be expected.
But will Congress Democrats have the courage to investigate Trump? Will the incoming Biden administration let go of the Justice Department to target Trump? There is reason to believe that this will not happen. On Tuesday NBC News reported“President-elect Joe Biden privately told the advisors that he doesn’t want to his presidency his consumed through investigations of him predecessorAccording to five people familiar with the discussions, despite pressure from some Democrats who want investigation into President Donald Trump, his policies and members of his administration. The report added, “Biden has raised concerns that the investigation would further divide a country he is trying to unite and risk talking about Trump every day of his presidency.”
There are grave political reasons for a Justice Department in Biden not to prosecute Trump. NBC reports: “One of the reasons [Biden] He believes the investigation would alienate the more than 73 million Americans who voted for Trump. “
Furthermore, there is little reason to believe that legal punishment would blunt Trump as a political force. Trump is an anti-systems politician, which means that his supporters view any conflict between him and the judicial authorities as evidence that he is upsetting the status quo. Democrats have often expressed amazement and anger that scandals that would destroy a normal politician did not affect Trump’s appeal at all. As an anti-system politician, however, he is not expected to obey the rules of the game. Indeed, evidence that he is compromising is positively interpreted as defiance. Pro-system politicians like Hillary Clinton and Joe Biden are much more likely to be held accountable by voters.
In the past, anti-systems politicians have gotten away with glaring corruption: consider the fabled careers of Boston Mayor James Michael Curley (who won re-election after being in jail for fraud) and Washington, DC Mayor Marion Barry (who has regained public office, including as mayor, following a drug conviction). Toronto Mayor Rob Ford and Louisiana Governor Huey Long have had similarly extravagant careers. Ford was hit by a health crisis that ultimately killed him and not the law. If Trump is convicted of crimes, he will likely follow the path of these anti-system politicians. One can even imagine that like the socialist Eugene Debs, he ran out of prison for president in 1920.
Legal prosecution will do nothing about the popularity of Trump and Trumpism. In fact, given his anti-system personality, it will likely tie him closer to his followers. He becomes a martyr.
However, failing to prosecute Trump will also come at a cost. The United States is a nation of elite impunity, as history over the past few decades shows. Nixon was forced to step down for Watergate, but also received a full pardon from his successor, Gerald Ford, which covered any crimes Nixon could have committed as president, whether discovered or not. It is difficult to interpret that this pardon confirms anything other than the idea that an American president can never be held legally liable no matter what.
Iran / Contra should be viewed as a successful cover-up, with subordinates accepting the overthrow of measures that were almost certainly promoted by President Ronald Reagan and Vice President George H.W. Bush. As a result, many of these subordinates, especially Caspar W. Weinberger
and Elliott Abrams received pardons and commutations. A similar code of criminal silence, or omerta, was seen in the George W. Bush administration, with Vice President Adjutant Scooter Libby serving as patsy in the case of CIA agent Valerie Plame Wilson’s outing. Libby also later received a pardon.
Barack Obama, although his presidency was free from major scandals, contributed to the tradition of elite impunity by refusing to punish the crimes of the George W. Bush administration. As NBC News notes,
The dilemma Biden faces is similar to what Obama faced when he took office in 2009. The Democrats called for the prosecution of Bush administration officials involved in activities that enabled increased interrogation or torture of terrorist suspects.
To appease these Democrats, Obama published memos about the controversial program and then publicly said he did not support the persecution of Bush administration officials who designed or carried out the policy. He also opposed calls for a 9/11 commission or a truth and reconciliation commission, like the one investigating apartheid in South Africa, to review policies.
This tradition of elite impunity has done nothing to heal America. Rather, it has helped foster a culture of corruption that is getting worse with every decade. Trump’s dirty government is not a break with history, but a culmination of decades of corruption. The smoldering crime in Washington will only end if the Biden administration breaks with history and holds Trump accountable. Failure is a recipe for a new and even more criminal Trump to take over the White House in the future.