The question came out of the blue and has haunted me ever since. It was Jan. 17, 2017, three days before Donald Trump's swearing-in, and my wife and I sat with him in the near-empty main cabin aboard the Trump Organization's Boeing 757 en route to Washington for a pre-inaugural gala.
So, asked the president-elect: Should he retain or fire Preet Bharara, the U.S. attorney for the powerful Southern District of New York? I gave what I thought was an obvious, anodyne answer: All other things being equal, it's better to have your own people in place. Within two months, Bharara was gone.
To the charge of naivete that night, I plead guilty: I didn't consider then that Trump might have had his personal legal interests in mind. But it is impossible to escape the self-interested intent behind his question. From the earliest days of his administration, it became painfully apparent that in all matters — including affairs of state — Trump's personal well-being took top priority. Four years and two impeachments later, he has managed to avoid the full consequences of his conduct.
But now that run of legal good fortune may end. Trump departed the White House a possible — many would say probable, provable — criminal, one who has left a sordid trail of potential and actual misconduct that remains to be fully investigated.
As Trump himself well understands. Long-standing Justice Departmentopinions hold that presidents can't be prosecuted while they are in office. Given that any such protection was temporary, some of Trump's advisers believed that one reason he decided to seek reelection was to avoid criminal exposure. Indeed, in the weeks leading up to November's election, Trump reportedly confessed to advisers that he was worried about being prosecuted.
Fear of indictment also seemed to animate Trump's frenzied efforts to overturn the results of the election he so clearly lost. During a 46-minute Facebook video rant in December, Trump complained that "these same people that failed to get me in Washington have sent every piece of information to New York so that they can try to get me there" — a reference to state prosecutors who apparently have ramped up their investigation of his personal and corporate affairs.
A desperate fear of criminal indictment may even explain Trump's willingness to break any number of laws to stay in office despite losing his reelection bid, democracy and the Constitution be damned. He considered unfathomable measures such as declaring martial law and having the military somehow "rerun" the election. He risked further potential criminal exposure with his appalling — and, unbeknown to him, taped — conversation with Georgia's secretary of state, during which he threateningly demanded that the official "find" enough votes for him to win the state, and by pressuring a Georgia elections investigator to "find the fraud" that didn't exist.
And then, as the clock wound down on his time in office, he committed the ultimate impeachable offense for a president: fomenting a violent attempted putsch at the Capitol to stop Congress from confirming President-elect Joe Biden's electoral victory. Prosecutors and jurors may have to decide whether it's also a crime.
Private citizen Trump stands stripped of the legal and practical protections against prosecution that he enjoyed during his tenure: constitutional immunity; a protective attorney general; a special counsel operating under self-imposed and external constraints; and the ability to invoke the presidency in litigation, even meritless litigation, to delay state prosecutors' investigations. No longer will he be able to claim interference with his public duties, or to remove those who might allow damaging investigations to proceed.
But Trump's problem is ours as well: How the Biden administration addresses these issues will have long-lasting implications for the rule of law in America — along with potentially enormous political consequences.
President Biden himself should stay out of it, and rightly seems intent on doing so. His Justice Department, however, can't and shouldn't. Previous presidents and previous prosecutors gave former presidents a break for their misdeeds: President Gerald Ford pardoned Richard M. Nixon; independent counsel Robert W. Ray (Kenneth W. Starr's successor) reached a plea deal with President Bill Clinton on Clinton's last day in office.
Trump deserves no such grace. His wrongs are far too many to ignore. His demonstrated contempt for the constitutional and legal order is simply too great. That was clear enough before Trump's repellent and possibly criminal efforts to overturn the election results, for which he was duly impeached. Now, an effort to hold Trump to account in the criminal justice system is essential and unavoidable.
To deal with Trump, and to do so fairly, Attorney General-designate Merrick Garland, once confirmed, will need to use the mechanism of a special counsel. Indeed, given the astonishing breadth of Trump's wrongdoing, Garland may need to appoint more than one to get the job done swiftly and thoroughly. What follows is a guide to how and why the case or cases, United States v. Donald John Trump, must be pursued.
Even before he incited the Jan. 6 insurrection at the Capitol, Trump had amassed an impressive slate of potential criminal acts — from before his presidency and during. His life amounts to a virtual issue-spotting exercise for any student studying criminal law.
Let's begin with the investigation into potential Russian collusion with the Trump campaign and Trump's efforts to obstruct the probe. As much as Trump loved to claim that special counsel Robert S. Mueller III found "No Obstruction," and provided Trump with "Total EXONERATION," that was just another Trump lie.
Mueller's investigation did no such thing. His report expressly "does not exonerate" Trump. In particular, it offers extensive evidence that Trump obstructed justice — a road map for any prosecutor willing to embark on the journey. Mueller pointedly said that if his team had concluded "that the president clearly did not commit obstruction of justice, we would so state," and noted that he considered his hands tied by the Justice Department's belief that a sitting president could not be criminally charged. "Charging the president with a crime was … not an option we could consider," he later explained.
In July 2019, former special counsel Robert S. Mueller III was questioned by a House committee about his nearly two-year investigation into Russian interference in the 2016 presidential election. (Matt McClain/The Washington Post)
Now, prosecutors can — as Mueller clearly contemplated. The special counsel's report pointedly noted that the president loses his immunity once he has left office. It cited the need "to preserve the evidence when memories were fresh and documentary materials were available" as one reason Mueller conducted "a thorough factual investigation" of potential obstruction of justice by the president. Mueller clearly understood he was creating an evidentiary record that Congress could use for impeachment — or that another prosecutor could use down the road.
That record supports bringing multiple criminal counts of obstruction of justice against Trump. Mueller's report described roughly a dozen episodes of potential obstruction and made clear that Trump's conduct met each of these elements of the crime in at least four of the episodes: Trump's efforts to get White House Counsel Donald McGahn to fire Mueller; Trump's attempts to get McGahn to lie about those efforts; Trump's attempt to get Attorney General Jeff Sessions to curtail Mueller's investigation; and Trump's efforts to discourage his former 2016 campaign chairman, Paul Manafort, from cooperating with the investigation. Indeed, more than 1,000 former federal prosecutors reached precisely this conclusion. "Each of us believes," their statementsaid, "that the conduct of President Trump described in Special Counsel Robert Mueller's report would, in the case of any other person not covered by the Office of Legal Counsel's policy against indicting a sitting president, result in multiple felony charges for obstruction of justice."
Mueller's report isn't all. In August, the Republican-led Senate Intelligence Committee issued a 966-page report that had something startling to say about Trump in particular. Trump, having stonewalled Mueller's requests for an interview, provided written testimony denying he had spoken with his longtime friend Roger Stone, or anyone else, about the trove of Democratic emails that Russia stole and WikiLeaks released in 2016. The Senate Intelligence Committee found those denials to be false, and concluded "that Trump did, in fact, speak with Stone about WikiLeaks and with members of his campaign about Stone's access to WikiLeaks" — "on multiple occasions."
That assessment raises the obvious question of whether Trump's misstatements to prosecutors were intentionally false — and thus constituted perjury as well as additional obstruction of justice. The best witness against Trump would be, of course, Stone himself. Trump publicly encouraged Stone not to cooperate with prosecutors and, after Stone obliged, rewarded Stone not only with a commutation of his prison sentence but a full pardon to boot. But here's the twist: Having been convicted and pardoned, Stone may no longer enjoy any immunity against being compelled to testify about his conversations with Trump.
Next comes the Ukraine scandal, for which Trump was impeached and then acquitted by the Senate in a party-line vote joined by all but one Republican. The evidence collected by the House of Representatives showed that Trump pressured the government of Ukraine to announce a (nonexistent) investigation of Biden, and illegally ordered the withholding of $391 million in congressionally authorized security assistance to Ukraine. Trump made this proposed bogus announcement by Ukraine a quid pro quo for the American aid, as attested to by Trump's own acting chief of staff, Mick Mulvaney, at a news briefing; by his ambassador to the European Union, Gordon Sondland, under oath; and by his former national security adviser, John Bolton, in a memoir.
Trump's abuse of presidential power for personal benefit didn't just constitute an impeachable "high crime or misdemeanor," it may well have violated the federal criminal code. Imagine a governor running for reelection against a former mayor of one of the state's largest cities. And then suppose the governor cut off state aid to that city, while demanding that the current mayor announce an investigation into his predecessor's conduct. If those facts came to light, it's difficult to imagine that the local U.S. attorney's office wouldn't immediately open a grand jury investigation — and, with sufficient evidence, prosecute.
As the House Judiciary Committee's 2019 impeachment reportconcluded, Trump's analogous conduct toward Ukraine constituted the solicitation of a bribe under the federal bribery statute. Trump was, directly or indirectly, corruptly demanding something "of value personally" — an announcement by Ukraine which would harm his political opponent. He sought the help from Ukraine "in return for . . . being influenced in the performance of any official act" — the release of the security assistance funds. Yet Attorney General William P. Barr's Justice Department inexplicably — or, rather, predictably — didn't bother even to open a case.
Pre-presidential conduct: Campaign finance laws
In any event, the list of Trump's possible offenses doesn't end with the Russia and Ukraine matters. There's the conduct that preceded his presidency — including a crime the Justice Department has, in effect, already determined that Trump committed: violations of federal campaign-finance laws through payments of hush money to two women who allegedly had affairs with Trump. Trump's former personal lawyer, Michael Cohen, pleaded guilty to arranging for the payments, one made by the parent company of the National Enquirer, the other made by Cohen himself and reimbursed by Trump. The U.S. attorney's office for the Southern District of New York represented to Cohen's sentencing judge that "with respect to both payments," Cohen "acted in coordination with and at the direction of Individual-1." Prosecutors identified "Individual-1" as someone "for whom Cohen worked" and who waged "an ultimately successful campaign for president of the United States" — in other words, Trump
Michael Cohen, the longtime personal lawyer of Donald Trump, at the U.S. Capitol in March 2019. Cohen was there to testify before the House Intelligence Committee. (Jahi Chikwendiu/The Washington Post)
If proved, that would make Trump guilty of the same federal campaignfinance offenses to which Cohen pleaded guilty, or of conspiring to commit those offenses. In addition, Trump's direction of the hush-money payments might have violated other criminal laws: A New York state prosecutor, Manhattan District Attorney Cyrus R. Vance Jr., has been investigating whether one of the hush-money payments was improperly identified in Trump's corporate records as a legal expense. Were that so, the payments might have constituted federal mail or wireor tax fraud, as well.
Pre-presidential conduct: Bank, insurance and tax fraud
Which brings up another significant issue raising possible criminal exposure for Trump — his personal and business finances, generally. Vance has stated in court that he's looking into "possibly extensive and protracted criminal conduct at the Trump Organization" — in particular, whether Trump or his company has committed bank, insurance or tax fraud, or falsified business records by overstating asset values and income to lenders and understating them to tax authorities. Trump has relentlessly and unsuccessfully fought Vance's subpoenas for Trump's tax and financial information all the way to the U.S. Supreme Court, where Trump lost. Vance's probe is intensifying, with The Post reportingthat prosecutors have hired outside forensic accounting experts to assist them.
Vance is running a state investigation, but if Trump has committed bank or insurance fraud, that would be chargeable as federal offenses as well, including mail or wire fraud. So, too, with state tax offenses, given how Trump's federal and state returns would no doubt track one another.
Trump apparently had good reason to be concerned about who would fill Bharara's old job.
All that already amounts to a lot of potential federal criminality. Even more avenues of investigation of Trump and his associates exist: conflicts of interest between Trump's official duties and his businesses; his use of public resources and employees in support of his reelection campaign; his pardons of (and arguable dangling of pardons to) potential witnesses against him; his retaliation against witnesses against him; and his efforts to overturn the election results (more on that below). But even leaving these issues aside, there's already plenty to investigate, and, quite possibly, to charge.
The question is whether to do so and, if so, how.
The inclination to give a former president a pass is understandable. We don't normally charge former presidents with crimes — indeed, it has never happened — though it's because they normally aren't criminals. Still, even when it's fairly clear that a former president has committed an offense, it is understandable that the next administration would hesitate about bringing charges. At the very least, prosecution of a former president could distract his successor from pursuing a positive, unifying agenda for the benefit of the nation: Ford wanted to avoid"never-ending" questions about Nixon's legal status and sought to "shift" Americans' "attentions from the pursuit of a fallen President to the pursuit of the urgent needs of a rising nation." Biden surely sympathizes, having reportedly expressed to aides that he "just wants to move on" from Trump's travails.
A more fundamental consideration in Trump's favor is that we don't want to criminalize political differences, or politics in general. As Paul Rosenzweig, who worked for Starr as an assistant independent counsel, recently put it, the "biggest danger of countenancing the investigation of ex-presidents is also the most obvious: an ever-escalating cycle of retribution." That outcome would poison our democratic system, and would give the public the corrosive impression that partisanship and popular passions should direct the criminal justice system toward political ends. Mindless chants of "Lock her up," followed by mindless chants of "Lock him up," are the stuff of banana republics — not one governed by the rule of law.
But conferring on ex-presidents blanket immunity from prosecution would also undermine the rule of law, because it would effectively place them above the law. That should be a particularly weighty concern these days, given how Trump, among other things, claimed that Article II of the Constitution gave him "the right to do whatever I want as president," and how he promised pardons to underlings if they had to violate laws to build his vaunted border wall. Indeed, the Justice Department's most recent opinion holding presidents temporarily immune from prosecution during their terms implicitly recognized that the rule of law requires that the immunity end once the presidents leave office. "Recognizing a temporary immunity would not subvert the important interest in maintaining the 'rule of law,' " the Justice Department concluded, because it "would generally result in the delay, but not the forbearance, of any criminal trial."
The desire to strike a balance between not over-prosecuting former presidents and not under-prosecuting them, between political reconciliation and legal justice, has led to differing judgments about where to draw the line. Rosenzweig proposes distinguishing between crimes a president committed in office and those in private life. In all but "extreme cases," he urges, the succeeding administration should adopt a "discretionary policy of not prosecuting an ex-president for actions undertaken while in office," while recognizing that "crimes a president commits while a regular citizen should not be excused just because he or she has served as the president."
Harvard Law School professor Jack Goldsmith, who served at the Justice Department during the George W. Bush administration, is skeptical of post-presidential prosecutions overall. He argues that a former president should be investigated or prosecuted only when the benefits to the rule of law exceed the cost to it. A few months ago, Goldsmith found the calculus wanting for Trump: Prosecution may be "difficult," would produce a "big time, historic legal circus," with the game "not worth the candle because of the damage it would do to the nation and to the governing party in power."
When it comes to the misconduct of public officials, including presidents, my instincts have always landed more along the lines of the Latin phrase "Fiat justitia, ruat caelum" — "Let justice be done, though the heavens may fall." But one needn't subscribe to so unforgiving a view to justify a post-presidential investigation and potential prosecution of Trump, given where we are today. Because Trump is the extreme case. He has proved that over and over again. Bringing him to whatever justice he may deserve is, now more than ever, essential to vindicating the rule of law, which, now more than ever, must be a critical governing policy of the new administration. Vindication of the rule of law is precisely why many Americans, including myself, voted for Biden. When you consider the through line of Trump's misconduct, and where it has led us, it's clear that the cost of giving the former president a pass is simply too great for the nation to bear. If Trump escapes unscathed, what future president would have to fear criminal consequences for wrongdoing?
The precedent for relieving an ex-president from prosecution comes from an independent counsel's decision not to prosecute Clinton, and Ford's pardon of Nixon. But neither situation supports lenience today: Clinton and Nixon were contrite pikers compared to Trump. The conduct that Clinton could have been charged with involved alleged perjury and obstruction of justice in a civil case that had nothing to do with his official duties as president. Nixon's alleged offenses stemmed from his participation in the coverup of the Watergate break-in, including the payment of hush money to an organizer of the break-in, E. Howard Hunt. The potential charges against the president were substantial: a four-count draft indictment of Nixon, prepared by the Watergate Special Prosecution Force in February 1974 and released to the public in 2018, would have charged him with conspiracy to defraud the United States, bribery and obstruction of justice.
Clinton and Nixon were relieved of criminal liability, but at least they paid a price — and admitted some fault. Trump has done neither. In exchange for the independent counsel's agreement not to prosecute, Clinton admitted that he had given false testimony, agreed to pay $25,000 in legal costs, and accepted a five-year suspension of his license to practice law. Nixon, of course, resigned in the face of imminent impeachment and removal. And he at least expressed some contrition, admitting in his resignation speech that some of what he did was "wrong."
Contrast Trump, who absurdly claimed "total EXONERATION" from an investigation he sought to obstruct, who falsely described his extortionary call with the president of Ukraine as "PERFECT," and who endlessly claimed victimhood from investigative "witch hunts" and "hoaxes." Beyond this, without diminishing the seriousness of Clinton's and Nixon's offenses — especially Nixon's, which led to his resignation— they don't compare with the array of charges that Trump's conduct may warrant.
But if there could be any doubt about whether Trump can be given a pass without the rule of law paying too high a price, that ended in the ugly final weeks of Trump's presidency. His attempts to reverse a free and fair election — by any means he saw necessary, including by fomenting violence — have not only undermined the rule of law but also threatened to destroy it altogether. No other president has ever done that, or attempted to do that, or probably even thought of doing that. Not even Nixon, who as vice president in January 1961 presided with aplomb over a joint session of Congress as it counted the electoral votes that sealed his defeat at the hands of President-elect John F. Kennedy, and did so even though the election had been extremely close, with the national popular vote margin being just two-tenths of 1 percent. For all his faults, Nixon respected the law in precisely the situation that Trump abjured it.
Even before the Jan. 6 attack on the Capitol, Trump engaged in what was quite possibly criminal conduct in attempting to overturn his electoral defeat. With his recorded attempt to bully Georgia's secretary of state into trying to "find 11,780 votes," just enough for Trump to win the state, he may well have crossed the line. So, too, weeks before, he pressured a Georgia elections investigator into trying to "find the fraud" that didn't exist.
But the only fraud was Trump's attempt to commit one. Federal criminal law prohibits knowing "attempts to deprive or defraud residents of a State of a fair and impartially conducted election process, by . . . [the] tabulation of ballots known by the person to be materially false, fictitious, or fraudulent." So, too, Georgia law penalizes "criminal solicitation to commit election fraud," defined as any "attempt to cause [another] person" to commit such fraud. Both statutes seem to cover exactly what Trump appears to have done. The Fulton County district attorney in Atlanta, in fact, is considering opening a criminal investigation of Trump and appointing a special prosecutor to handle it.
Trump's only conceivable defense would be to claim that he actually believed he won the election, and was just seeking an accurate result. But that's belied by the uncontroverted evidence that he lost, as well as by his crude attempt to ask specifically for the number of votes he needed. And it's been publicly reported more than once, and I myself have reliably learned, that Trump has privately admitted that he knows he lost the election. If that's so, he has a big problem: His acknowledgment of defeat refutes any innocent intent. Trump's problem, moreover, may not just be in Georgia. He made entreaties to election officials in other states, as well.
The failed putsch that prompted Trump's most recent impeachment likewise presents Trump with potential criminal peril. As a practical and factual matter, if not a legal one, he incited the violence at the Capitol and did so to thwart the counting of properly certified electoral votes against him. As the House Judiciary Committee report in support of Trump's second impeachment describes, Trump's course of conduct after the election foreseeably led to the violence: among many other things, his lies about a "stolen" election; his exhortation to supporters to come to Washington on Jan. 6; his speech at the "Save America" rally that day, in which he urged them to "fight like hell" or else "you're not going to have a country anymore" — which they then proceeded to do. As the third-ranking House Republican, Liz Cheney (Wyo.), put it in her statement announcing her vote to impeach: "The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack."
That may not only be "inexcusable," as Barr, Trump's former attorney general, said — and impeachable, as the House found — it may also be criminal. Trump's own White House counsel, desperately pleading with Trump to condemn the violence, apparently warned the president of his potential liability. The acting U.S. attorney in Washington immediately made clear that Trump fell within the scope of the Justice Department's investigation of the attack. Foremost among the potential charges: the criminal prohibition against seditious conspiracy, defined as a conspiracy to use "force to prevent, hinder, or delay, the execution of any law of the United States."
To be sure, free-speech protections and the criminal law's burden of proof could make prosecution difficult. But to know one way or another whether a free-speech defense will fly, all the facts and circumstances must be examined. In addition to Trump's words on and before Jan. 6, we now know that Trump, pleased at the rioters' support of him, was virtually gleeful that violence had erupted, later saying on television that "we love" the rioters, whom he called "very special." We know as well that he and his allies were involved in some of the planning of the "Save America" rally that triggered the insurrection. What did he know about the potential for violence? That question is for prosecutors to investigate before they can decide whether to forgo a charge.
Even worse for Trump, as professor of criminal law Joseph Kennedy points out in Slate, is that the First Amendment won't protect Trump from criminal liability premised upon his legal duty as president to stop the insurrection. As his White House counsel warned, Trump faces exposure because of the many hours during which he resisted repeated entreaties to stop the rioters. Again, everything depends on the facts. But we know a lot already. For example: Did Trump stand back and stand by because he thought the rioters he "loved" might actually succeed in blocking the electoral vote count? If the facts already reported are proved in court, a jury could easily conclude that he did.
In any event, Trump's post-election conduct makes it impossible for the Justice Department to look away. If prosecutors don't investigate and, if warranted, charge, this former president, then we might as well say that all presidents are completely immune from criminal consequences for their conduct — whether during their term or after; whether the conduct occurred before their presidency or while in office; whether it involves personal matters or public acts.
We might as well say, flat-out, that presidents are above the law.
And for the rule of law to stand, that's too high a cost — with little if anything to counterbalance it. Ford pardoned Nixon partly because he feared the "degrading spectacle" of having a former commander in chief in the dock. But we already have the degrading spectacle. We endured it for four years, ever escalating, and it culminated in the tragic and appalling events of Jan. 6. Restoring dignity to our political system requires some attempt to do justice, beyond preventing Trump from holding federal offices he never deserved to occupy. The stark lesson of the past four years is that the failure to hold a president to account only leads to more conduct for which the president should be held to account.
So, too, with the potential for perpetuating division and potential violence. It already exists. Giving Trump a pass won't make it disappear. Trump's supporters, despite the evidence, will continue to insist that the election was stolen from him; they will continue nursing, and acting upon, their grievances. The fear that they may engage in further disorder shouldn't, and won't, prevent prosecutors from bringing hundreds of cases against the insurrectionists. To the contrary, it's precisely the reason those prosecutions should proceed. For much the same reason, the operation of the criminal law shouldn't be suspended against the man who gave those people the permission structure to commit their violent acts.
Biden's instinct to the contrary is understandable. Just as Ford did, the new president has much to contend with other than his predecessor's misdeeds. And, just as Ford feared with a Nixon prosecution, addressing those misdeeds threatens to distract and drain political capital from the new administration's efforts to deal with the nation's other problems. But Biden clearly realizes that he can't just let things go, and that the proper course for him is to stay above the fray and let the Justice Department exercise its professional judgment.
No doubt that was a major consideration in appointing a federal judge of utmost integrity — in the eyes of Democrats and Republicans — to serve as attorney general. To help ensure fairness and the perception of fairness, Merrick Garland should invoke the Justice Department regulations designed to deal with politically charged investigations: the rules providing for appointment of a special counsel. Those require the appointment of outsiders to investigate, and, just as important, require the preparation of reports that explain what an investigation found and did not find. That's critical here because the main point of proceeding with an investigation is to vindicate publicly the rule of law.
But here's the rub: With Trump, there's so much to investigate criminally that one special counsel can't do it all. Could you imagine one prosecutor in charge of addressing Trump's finances and taxes, his hush-money payments, obstruction of the Mueller investigation, the Ukraine scandal, and post-election misconduct, for starters? It would be an impossible task for one team. One special counsel's office couldn't do it all, not in any reasonable amount of time, and it's important for prosecutors to finish their work as quickly as possible. Three or four special counsels are needed. Under the regulations, each would be accountable to the attorney general.
If that feels like overkill, hark back to the reason it's required. The laundry list of potential crimes is the product of the brazenness of Trump's behavior over decades. Trump's modus operandi has been to do whatever he considers necessary in the moment and thinks he can get away with. It worked for far too long. Trump has managed to avoid serious legal repercussions — not just during his four years as president, but throughout his life.
Trump's presidency has ended. So, too, must his ability to dodge the consequences.
George T. Conway III, Washington Post, January 22, 2021
Voices4America Post Script. George Conway has done us a great service - listing multiple ways Trump might be charged with crimes. We don't want to criminalize political differences, but a President must not be above the law. #TrumpIsACriminal Let the indictments begin!