When Joe Biden is sworn in as president on January 20, his in-tray will include a pandemic that continues to kill thousands of Americans each day and an economic crisis that has left millions out of work. Both those challenges rank among the most significant faced by any incoming US president. But Mr Biden will be forced to tackle a third issue that may define his presidency as much as the health and livelihoods of the American people: the fate of his predecessor.
Donald Trump will leave the White House with potential personal criminal liability unlike any commander-in-chief since Richard Nixon, who was saved by a controversial and sweeping pardon gifted by his successor Gerald Ford after he resigned in disgrace. Mr Trump, who will depart after attempting to subvert his loss in a free and fair election, is unlikely to receive any similar such clemency from Mr Biden.
Since first exploding on to the political scene in 2015, Mr Trump has tested and twisted the US political system to breaking point, serving as a one-man crash course on the US constitution, legal and ethical norms, and the effectiveness or lack thereof of the guardrails on the president’s power. Now his departure from office will force Washington to confront yet another question rarely asked in US history: should a former president be prosecuted?
While in office, Mr Trump has been protected by the Department of Justice. Under the leadership of William Barr, who Mr Trump installed as attorney-general in 2019, the DoJ helped the president stall a state criminal investigation into possible tax fraud by the Manhattan district attorney, Cyrus Vance.
When Robert Mueller completed his investigation into links between Russia and the 2016 Trump campaign, his report listed numerous instances of possible criminal obstruction of justice by Mr Trump but noted that a DoJ policy barred indicting a sitting president.
Those protections fall away at midday on January 20, leaving Mr Trump’s fate in the hands of his political opponents and, should they proceed, ultimately the courts. No former president in US history has ever endured prosecution. The question is whether Mr Trump will be the first.
“We are a nation of laws, and presidents cannot be excluded from that,” says John Dean, the White House counsel who turned witness against Nixon and served time in prison for his role in the Watergate abuses. Pursuing Mr Trump would be difficult but the ideals of American democracy demand it, Mr Dean argues.
“Will it be politically uncomfortable? You bet it will be. Will it be a media circus? You bet that, too. Maybe we’ve got to go through that to get to the other side where it’s clear that this isn’t going to happen again,” he says.
Both Mr Trump’s conduct before and while in office offer potential targets for possible federal investigation under the Biden administration. Michael Cohen, Mr Trump’s former lawyer, has testified that Mr Trump had in the past inflated or deflated the stated value of his real estate depending on whether he was seeking a bank loan or filing his taxes, raising questions of possible fraud that Mr Vance’s office is already probing.
Mr Trump’s conduct during the 2016 campaign has also been the focus of a federal investigation, specifically by prosecutors in New York who obtained the conviction of Cohen on campaign finance charges for paying hush money to a porn star who claimed an affair with Mr Trump. In that case — brought during Mr Trump’s administration — the president was referred to as “Individual One”.
But the case that is the most publicly fleshed out already is the obstruction of justice portion of Mr Mueller’s probe. Over some 182 pages of his report, Mr Mueller laid out in detail the conduct, witnesses and legal arguments that would underpin a possible prosecution of Mr Trump after he leaves office. It referenced instances where the president allegedly asked subordinates and associates to shut down Mr Mueller’s probe, and where he used the potential for pardons as a way to influence witnesses to remain on his side.
Sally Yates, a leading contender to be Mr Biden’s attorney-general, said last year the case was a strong one. “I’ve personally prosecuted obstruction cases on far, far less evidence than this,” she said on NBC. “And yes, I believe, if he were not the president of the United States, he would likely be indicted on obstruction.”
Andrew Weissmann, who was a senior prosecutor on Mr Mueller’s special counsel investigation, says not pursuing that case would fatally undermine any future efforts to investigate possible wrongdoing by a sitting president.
“What does it mean if you don’t in any way have a deterrent to the presidency undermining a special counsel investigation into misconduct by the presidency?” he asks. “At that point what you are saying in the future is the presidency is in effect de facto above the law. Because what’s the point of having the investigation?”
Mr Biden has thus far distanced himself from these questions, stating repeatedly that he will maintain the independence of the DoJ from the incumbent president. While Mr Trump has wrecked the norms that kept the at a political distance from the White House — including by calling for his own predecessor to be prosecuted — Mr Biden has pledged to restore the walls that previously existed, beginning with a steadfast refusal to say one way or the other whether he believes Mr Trump should be investigated.
“In terms of saying, ‘I think the president violated the law, I think the president did this, therefore, go on and prosecute him’, I will not do that,” Mr Biden said in August.
Mr Biden has suggested that he is not keen for a possible investigation and prosecution of Mr Trump to be the centrepiece of his administration. He campaigned on the pandemic and economic crisis. And when asked by NBC in November if he supported investigations of Mr Trump, Mr Biden again said the was not his to direct, but added: “What I’m focused on is getting the American public back at a place where they have some certainty, some surety, some knowledge that they can make it.”
The comments have echoes of the approach taken when Barack Obama took office in 2009, with Mr Biden as his vice-president in the midst of another great crisis. Among the issues that spurred calls for accountability was the CIA’s use of torture during the George W Bush administration. Mr Obama insisted that he would “look forward, as opposed to looking backwards”, saying his “general orientation is to say let’s get it right moving forward”.
The Obama administration rejected calls for a truth and reconciliation-style commission, while the DoJ said the attorneys who authorised torture had not committed misconduct, and commenced a narrow independent probe led by John Durham — now special counsel appointed by Mr Barr to investigate the origins of the Russia inquiry — that resulted in no prosecutions.
But Mr Biden may not follow suit. Mr Trump’s time in office is seen by his opponents as nothing short of an existential threat to American democracy, and his departure after only a single term something of a near-miss akin to the close passing of an asteroid. “We escaped a brush with death,” says Mary Anne Marsh, a Democratic political strategist.
Top Democratic figures in the legal establishment have signalled that attempting to move on without reckoning with the conduct of the Trump administration is untenable. Eric Holder, the attorney-general Mr Obama appointed as he pledged to look forward rather than back at Bush-era misdeeds, told the Huffington Post in a recent interview that though exploring every potential misdeed that happened under Mr Trump was not possible, so too was inaction. “I think a targeted approach into the most egregious instances of misconduct is probably the way to go,” Mr Holder said. “But I don’t think you can simply let it go. People need to be held accountable.”
The arguments against pursuing Mr Trump are formidable. Though other countries have prosecuted both current and former leaders — Israel, Brazil and France are recent examples — the US has not embarked on such a path before, never mind with a figure so unrestrained by any norms of political conduct. When Ford announced in 1974 that he had given a full pardon to Nixon, he warned that “ugly passions would again be aroused” in the country if Nixon were pursued, and argued it was in the best interests of all Americans that the tumult of his presidency be left in the past.
Similar risks exist today. Throughout his presidency, Mr Trump has not just asserted his innocence of the varied allegations against him, but has denounced scrutiny as either “fake news” or part of an overarching “witch hunt” designed to bring him down. Since losing to Mr Biden by a significant margin, his rhetoric has only grown more extreme as Mr Trump has painted himself and his supporters as victims of a conspiracy to steal the election.
Any post-presidency investigation would be added to the palette of grievances with which Mr Trump could paint a potential comeback in 2024.
“As a political matter, this would just strengthen Trump’s hand because it would reinforce his claim that the deep state is out to get him,” says Eric Posner, a Chicago Law School professor and author of a recent book, The Demagogue’s Playbook: The Battle for American Democracy from the Founders to Trump. “When a prosecution like this is brought, it’s not just the defendant who’s on trial, the government is on trial as well.”
Republicans have made clear that if they control the Senate, they would seek protection for Mr Trump before approving any attorney-general nominee put forward by Mr Biden. Lindsey Graham, the outgoing Republican chairman of the Senate judiciary committee, told Fox News in November there was “no way in hell anybody’s gonna get confirmed that would agree” that Mr Trump should be prosecuted.
With no easy decisions, the Biden administration, and more specifically the attorney-general appointed by it, may look for ways to avoid the question of whether to pursue to Mr Trump. One uncertain route could be the blunt use of pardons by the president as he exits office. The president’s allies have urged him to issue pardons for close associates and even himself, whether through a dubious self-pardon or some last-minute resignation arrangement with Mike Pence, the vice-president.
A 1974 DoJ legal opinion even raised the idea that a president could temporarily give their powers to their vice-president for the purposes of a pardon.
“The president out the door needs to pardon his whole family and himself because they want this witch hunt to go on in perpetuity, they’re so full of rage and insanity against the president,” said Sean Hannity, the Fox News host and confidant of Mr Trump, last month on his radio show. Though that same 1974 DoJ memo rejected the notion of a self-pardon, the question has never been tested in the courts and that uncertainty could be politically useful for the Biden administration.
“From a political perspective, Trump does Biden a favour by pardoning himself and his family,” says Lara Brown, director of the Graduate School of Political Management at George Washington University. She says such a move could provide a “helpful political out”.
The Manhattan DA’s ongoing probe is a more concrete outlet. Though it is only examining a portion of Mr Trump’s conduct — his business affairs — that area is the least complicated by constitutional questions about the president’s authority, and DoJ policies have long recognised that federal prosecutors may defer to state investigators.
“I suspect that there will be a strong pull if Manhattan were to go forward to at the very least defer the decision on this issue,” says Mr Weissmann, the former Mueller prosecutor.
Avoiding repeat problems
Beyond any personal liability for the president, the Biden administration faces pressure for a broader reckoning of the Trump era. The wheels are already turning for such an accounting to occur. Democratic state attorneys-general in New York and Washington DC are investigating Mr Trump’s business affairs. Inspectors-general across the federal government will continue their ongoing probes. Regardless of the outcome of the Senate run-off elections in Georgia, Democrats will continue to control the House of Representatives and will no longer be dealing with an executive branch hostile to their document requests.
Ian Bassin, a former White House lawyer in the Obama administration who now runs non-partisan group Protect Democracy, says a more considered process is required. “By not confronting wrongdoing, we deprive Americans of an accurate, shared understanding of what happened, fail to establish norms of behaviour, and leave the door open to recurrence,” he says. He argues that such a process should be “independent, transparent, and designed not for retribution” but rather to avoid a repeat in future.
“It has to be about looking at all of the individual failures and systemic failures that gave rise to serious wrongdoing,” he says.
David Kris, who led the DoJ’s national security division from 2009 to 2011 and is the founder of Culper Partners, a consultancy, compares the challenge to the idea of the slowly boiling frog, arguing there was a risk of becoming acclimated to what has been “very very hot water” without a considered effort to reckon with Mr Trump’s presidency.
“What if we just leave that water at high but below boiling, and we have another president in the future turning up the heat again?” he asks.