Holding a prior President criminally accountable after their Administration is not “the American Way”. It is far outside the “norms” of American History. It’s “banana republic” behavior; what the rotating dictators of some unnamed Latin American country might do.
Watergate
Gerald Ford became President upon the resignation of Richard Nixon after two years of the Watergate scandal . The Republican leadership of the Congress, told Nixon he would be impeached and removed from office. While removal from office isn’t a criminal offense, it would prevent Nixon from getting his much-needed Government pension. And he still would be open to criminal prosecution. So he resigned.
There was ample evidence that Nixon committed multiple criminal offenses as President. He was even an “unindicted co-conspirator” in a Federal criminal obstruction of justice indictment that resulted in multiple convictions.
But Ford determined that a criminal trial of Richard Nixon would drag the “Watergate Era” on for years. His goal was to move the nation on, to end “…our long national nightmare”. So he pardoned Nixon for any crimes he might have committed as President of the United States. There would be no “perp-walk”, no mug shot, and no “show trial” with Richard Nixon in handcuffs.
Ford took a tremendous amount of “heat” for the pardon, even testifying at a Congressional hearing to explain his reasoning. It was one of the major reasons he lost to Democrat Jimmy Carter two years later. But Ford was a Republican like Nixon, and the Vice President appointed by Nixon to replace the resigned Spiro Agnew. There couldn’t have been a friendlier “venue” for Nixon’s pardon.
Political revenge in America occurs at the polling place. We don’t “do” vendettas, and we don’t put our former leaders on trial. We vote them out. Or at least, that’s what we’ve done in the past.
Unprecedented
The Trump Administration can be characterized by one word: unprecedented. From his very first day in office, as Press Secretary Sean Spicer unabashedly lied about the size of the inauguration crowd, the Trump Administration broke the “norms” of American Government.
There is an actual list of over 20,000 lies that President Trump told in the first three and a half years in office (WAPO). But lying isn’t illegal. And there are the hundreds of outrageous policy decisions from selling off mineral rights in National Monuments to building oil pipelines through sacred Native American lands to using Federal forces to battle protestors in the streets. But those policy decisions, as much as they were disliked, aren’t illegal either.
The President politicized the Department of Justice, suggesting prosecutions and demanding personal loyalties from chief law enforcement officers. These actions might have bordered on obstruction, and were distasteful and against long established norms of America. But they weren’t illegal.
So if Donald Trump, forty-fifth President of the United States committed crimes, what were they?
Already Determined
There are two areas that are “done deals”. The first is the Russia investigation, conducted by Special Prosecutor Robert Mueller’s team. The exhaustive report issued by Mueller and long debated in Congress turned out to be an exercise in “fence sitting”. Mueller refused to take a side.
From the start of the investigation he determined that a serving President couldn’t be charged. So he never suggested what those charges might be. While there seems like plenty of evidence for charges, those questions are already “asked and answered” in the eyes of the American people, regardless of the unsatisfying results.
The only possible charge Trump could face from the Russia investigation now is as part of the Michael Cohen indictment, where he was the unnamed “Individual One” who orchestrated the violation of campaign finance laws. And while that is a pre-cooked charge, ready for re-heating, it also is exactly the kind of charge that would be seen as the Biden Administration “getting vengeance”.
The second area that’s a “done deal” is the Ukraine scandal that led to Trump’s impeachment. The evidence was actually pretty clear, and is even clearer today than it was during Trump’s impeachment trial in front of the Senate. The President tried to use the power of the US government to leverage a foreign leader for “dirt” against a political opponent. Criminal actions, including obstruction of justice and abuse of power, clearly occurred.
But the people of the United States feel that this is “adjudicated”. The Impeachment Trial felt like a trial. And even though it has nothing to do with criminal law or the double jeopardy clause of the Fifth Amendment, in the public eye, the President is “not guilty”.
What’s Left?
There are two areas where the upcoming Biden Administration could look for criminal charges against the forty-fifth President. The first area is in Trump and his family’s use of the office of the President to enrich themselves. From getting special deals for golf courses in Scotland, to hotel fees in the Old Post Office in Washington, the Trump business has consistently “monetized” the Presidency. Some of these may well violate the emoluments clause of the Constitution, and other actions look lie a straight “shakedown” of the American people.
And though some of Trump’s personal and business behavior may be beyond the scope of the Department of Justice, they may be right in the ballpark of the Manhattan District Attorney’s office. That investigation is already underway, and will soon pick up the pace, unencumbered by the burden of Trump being the serving President.
And finally there is the singular outrageous act of the Trump Administration, separating children at the border from their parents. At least 666 children cannot be returned: the government lost contact with the parents. This intentional and morally reprehensible act may be criminal as well, a crime against humanity.
Biden’s Choice
Joe Biden is a traditionalist. He will almost automatically look to history, and Gerald Ford’s precedent. I don’t expect Biden to pardon Donald Trump for anything. But I do expect that he will avoid the morass and division a Trump prosecution might cause.
However, Joe Biden is also an institutionalist. He believes that the President should keep the Department of Justice at arms length. So if his Attorney General, or a new US Attorney, wants to pursue charges against Donald Trump or his family, Joe Biden may feel obligated to stay away from the decision. That would fit his and America’s norms for what the President should do.
