Of course, I don’t know if Donald Trump committed any crimes. It is possible that a jury will give us the answer in a few years.
At the moment, Trump is not only viewed as innocent, but also not charged with wrongdoing.
Suppose he actually did something that he could be charged for. Should he be prosecuted?
Let’s skip through for a moment the issue of Trump self-forgiveness or a pardon where Trump resigns on January 19, President of the day, Mike Pence, pardons Trump, and Joe Biden takes over on January 20, those pardons would raise difficult constitutional questions, and no one has ever considered me a constitutional scholar.
While I won’t go into that here, please remember that pardons have consequences that many seem to overlook. If a person receives a pardon, that person is no longer at risk of punishment and loses the privilege against self-blame. If Trump were given a pardon and then forced to testify before a House Committee, for example, Trump would have to speak. If Trump lied during this testimony, he could be prosecuted for perjury.
Let’s set aside other avenues that people are talking about as well: a Truth and Reconciliation Committee to investigate Trump’s behavior in office, appointing an independent attorney to investigate Trump.
I am a purist. I’m just thinking of two things: First, should Trump be prosecuted for federal crimes he may have committed during his tenure?
Many Democrats shout “no”. Impeachment did no political harm to Trump; it might have helped him. Why, Democrats ask, should Democrats do something as counterproductive as persecuting Trump?
In return, I ask: Why can democrats have a say here? Neither you nor I should care whether an indictment helps or hurts a political party. That is irrelevant; erase it from your head.
Should Trump be prosecuted regardless of party politics for federal crimes that he may have committed during his tenure?
On the one hand, no. We shouldn’t prosecute former presidents. It’s a terrible precedent. And remember: what goes around comes around. Trump has been shouting for four years that Barack Obama has committed crimes and should be prosecuted. I am confident that when Trump is prosecuted next year, Republicans will scream that Biden did something criminal in office and should be prosecuted in 2025. I am not sure if it is important to me to live in this world.
On the other hand, yes. Why should the president be treated differently from other citizens? If you or I tried to screw up criminal shit with the President of Ukraine, we’d probably go to jail. Why shouldn’t Trump?
This is a narrow appeal, but one could reasonably lean toward non-persecution. You and I are not the President; The President should not be prosecuted for fear of general disruption of the political system. There are many benefits to being president and not being prosecuted for any federal crimes committed while in office. This is just another benefit of the office.
How about persecuting the president not for political issues but for things he did in his own interest?
I am with you on political questions: we should give the presidents an extraordinarily large amount of leeway on political questions, even if these measures could be in the president’s own partisan interests. So I don’t know exactly what the “torture memos” were in the George W. Bush administration, but they had something to do with how aggressive American interrogators could be in pursuing evidence of possible attacks against the United States. I would greatly avoid prosecuting anyone for these things: Even if you do not forcibly contradict those people’s conclusions, people who consider in good faith the appropriate way to protect America are entitled to deference.
Many – perhaps most – presidential decisions rest at the intersection of politics and partisanship. Any policy promoted by a presidential candidate is biased if the president later adopts that policy. For example, it might have helped Democrats (or Obama personally) that Obama passed Obamacare; This is government. It may have helped Trump take various measures to “build the wall”. This is the interface between politics and partisanship. give him respect.
I am equally leaning on more personal issues like the suggestion that Trump should be prosecuted for violating the Emoluments Clause or the Hatch Act. Presidents do many things that benefit the president personally. Unless we can draw an extremely clear line between office-related and strictly personal behavior, we should be wary of prosecution.
Here’s the tougher question: should Trump be prosecuted for state crimes that he may have committed prior to taking office?
If you think about politics, you’ll be giving yourself a headache: Democrats run both the Manhattan Attorney’s Office and the New York Attorney General’s Office. (It has been reported that so far the Attorney General has only thought about civil liability, although these things sometimes take on a criminal life.)
The attorneys in the Manhattan Attorney’s Office always yell, “Politics doesn’t matter in what we do!” That’s a pretty good sign that they’re doing political things. (Ah, come on Cy; I’m just kidding. Can’t you be kidding?)
The politics are funny: maybe the National Democratic Party as a whole doesn’t want to prosecute Trump for anything for fear that prosecuting would energize his base.
New York Democrats may see it differently.
And the people in the local prosecutor may feel differently. Some of these people may have political ambitions. You may think that massive law enforcement name recognition is a good thing for you personally; damn the rest of the party.
Most presidents don’t have to worry about law enforcement before taking office. If presidents were not prosecuted during their four years in office, the statute of limitations for most claims would have expired by the end of the president’s term.
That being said, maybe we should do something unusual with prosecutors: let the prosecutors track where the evidence is leading them, and then do what the evidence suggests.
Wouldn’t that be a nice change?
Mark Herrmann spent 17 years as a partner in a leading international law firm and is now Deputy General Counsel in a large international company. He is the author of The Curmudgeon Guide to Legal Practice and Litigation liability strategy for drugs and devicesY. (Affiliate links). You can reach him by email at [email protected].