To prosecute or not to prosecute 45

“a pattern of disregard for public order”

donald-trump-hollywod-star-behind-bars
Per CNN

President-elect Joe Biden – love the sound of that – is hoping to “avoid divisive Trump investigations.” Biden ran as a unifier, and he knows that over 74 million people voted against him. He’s told aides that he’s concerned that to prosecute djt would split the country.

I totally get it. When President Barack Obama came into office, with Biden as his Veep, he wanted to  move on “from the previous administration’s scandals and ultimately ignored President George W. Bush’s administration’s use of torture on prisoners of war taken during the Iraq and Afghanistan battles.” I grimaced at the time but understood.

So I was interested to see the take of Philip Allen Lacovara. A former counselor to the Watergate special prosecutor, he explained in the Washington Post why Biden has “no choice” but to prosecute his predecessor.

It is a sentiment shared by Andrew Weissmann, former senior attorney to special counsel Robert Mueller.

A New Day

On January 20th, 2021, “‘We’re going to be… in the situation where we no longer are talking about indicting the president but, rather, a former president, somebody who is a civilian,’ Weissmann explained. ‘And the question’s going to be: Does the rule of law apply to that person?

“‘And it’s very hard to see an argument if it is shown… that the president has committed tens of millions of dollars of tax fraud or bank fraud or both. Any other person would normally be prosecuted, then it really shouldn’t be the case that just because he becomes president, that he shouldn’t have the day in court where a jury decides whether or not he committed those crimes prior to becoming president.'”

This makes sense to me. But with the country as fractionalized as it is, many will perceive it as retaliation. Millions won’t believe Biden’s insistence that he would leave decisions up to an “independent Justice Department.” They’ll say that this is the kind of prosecutorial bullying one would expect from attorneys generals such as William Barr or John Mitchell.

Lacovara knows it may be appealing to try to turn the page on the past four years. “‘In virtually any other presidential succession, this course might be prudent and consistent with our history of peaceful transitions without recrimination, vindictiveness, or rummaging around for criminality.’

He’s Special

But the soon-to-be-former President is “‘in a category by himself,’ notes Lacovara. ‘One need not embark on a malicious hunt to identify serious criminal abuses by Trump and many of his closest aides.’ “The conduct by him and his administration showed a pattern of disregard for public order, ‘including those embedded in federal criminal statutes.'”

Weissmann responded to a “New York Times column suggested that putting Trump on trial for obstruction of justice will be perceived as Biden placing those who supported” his opponent on trial.

“‘I think that’s looking at it the wrong way. Remember, a jury is going to have to make the decision and is going to have to find proof beyond a reasonable doubt in the same way any other defendant is entitled to all of the due process rights that we have in this country.”

Assuredly, it would be wrong to “lock him up” just because he might run again in 2024. And his puffery may be a tactic to pollute any jury pool, who might believe he’s being persecuted, not just prosecuted. He is quite good at that. Still, the facts should determine what actions might be taken by federal courts.

Frankly, I hope he’s indicted in state courts. As this September 2020 article in New York magazine notes, “State laws aren’t subject to presidential pardons.” This includes if he should choose to pardon himself – don’t rule it out – his family, and others.