One Tough Question For DOJ If Biden Is Elected: Whether To Prosecute Trump

Aug 13, 2020
Originally published on August 14, 2020 8:40 am

If Joe Biden wins the presidency, his Justice Department will face a decision with huge legal and political implications: whether to investigate and prosecute President Trump.

So far, the candidate is approaching that question very carefully.

In a recent interview with NPR's Lulu Garcia-Navarro, Biden said: "I will not interfere with the Justice Department's judgment of whether or not they think they should pursue a prosecution."

But he hastened to add that an administration pursuing criminal charges against its predecessor would be "a very, very unusual thing and probably not very, how can I say it? good for democracy — to be talking about prosecuting former presidents."

Based on those remarks, Biden seems to be on the way to adopting the position of former President Barack Obama. Back in 2009, the newly elected Obama said he didn't want to get hung up on prosecuting wrongdoers. He was referring to people who had engaged in torture and warrantless wiretapping during the previous administration.

Instead, Obama told ABC News at the time, his instinct was to make sure those practices never happened again.

"I don't believe that anybody is above the law," he said, "On the other hand, I also have a belief that we need to look forward, as opposed to looking backwards."

A presidential desire to "look forward" and move ahead is what prompted President Gerald Ford to pardon his predecessor, President Richard Nixon, after the revelations about Nixon's abuse of power in Watergate.

In Obama's case, the Justice Department ultimately convicted only one person, a government contractor, for abusing a detainee who later died. But Biden could have a harder time drawing those kinds of lines today.

Trump is an unusual case

"It's not at all clear that looking forward and not looking backward is an available option," Harvard Law School professor Jack Goldsmith said.

Goldsmith said most people aren't talking about how a Biden Justice Department might handle Trump but said he thinks they should be.

Congress and Manhattan District Attorney Cyrus Vance Jr. have open investigations into Trump and his company. Federal prosecutors have looked at his campaign payments in 2016 and his inaugural committee.

Former Justice Department special counsel Robert Mueller made clear that his investigation did not clear Trump of potential lawbreaking in connection with the president's attempts to quash the Russia investigation. Democrats and some former prosecutors hostile to Trump called his actions obstruction of justice.

But the Justice Department twice has opined that prosecutors can't seek an indictment against a sitting president. That's left open the question about whether he might face prosecution once he leaves office.

It's never happened before, and it's a political time bomb. Bringing a criminal case against a former president could widen the divide in the country.

"Whether that's good for the country is a very hard question that's going to be very messy," Goldsmith said. "Whether it's good for the Biden administration, whether it wants to be, you know, absorbed in being the first administration to ever prosecute a prior president — those are very hard questions."

The political dimensions

Sen. Kamala Harris, the Democrats' pending nominee for vice president, has suggested that Trump should be prosecuted once he is out of office.
Tom Williams / CQ Roll Call/Pool via AP

There could be a lot of political pressure. Trump is deeply unpopular with Democrats. If Biden wins, and Democrats increase their control in Congress, the calls for Trump to be charged could intensify.

Democrats impeached Trump in a process that ran from 2019 into this year over the Ukraine affair, but Republicans used their majority in the Senate to protect the president.

Some of Biden's rivals for the Democratic nomination didn't seem to think a Trump case would be a hard call. Sen. Kamala Harris of California, Biden's newly minted running mate, pointed to what she called evidence of obstruction of justice uncovered by Mueller.

Harris told The NPR Politics Podcast last year that the next Department of Justice would have "no choice" but to act.

"I do believe that we should believe Bob Mueller when he tells us, essentially, that the only reason an indictment was not returned is because of a memo in the Department of Justice that suggests you cannot indict a sitting president," Harris said. "But I've seen prosecution of cases based on much less evidence."

The prospect for post-election prosecutions has become part of campaign politicking.

Trump, when he ran in 2016, called his opponent, Hillary Clinton, "crooked" and ate it up when crowds called for Clinton to be incarcerated. Retired Army Lt. Gen. Michael Flynn joined the audience in cheers onstage four years ago at the Republican National Convention.

"Lock her up," Flynn exclaimed after the crowd began to chant. "That's right. Yeah, that's right. Lock her up."

Ultimately, the Trump administration has brought no charges against Clinton. But it has launched investigations into former FBI Director Jim Comey, his deputy Andrew McCabe and the intelligence gathering process in 2016. And the president has extended the theme to Biden and Obama, including with an attempt to brand what he calls a scandal "Obamagate."

Trump frequently mentions those investigations on Twitter or in public comments.

In a recent interview on Fox News, Trump's attorney general, William Barr, lamented how the justice system has become a political weapon.

"I think all political sides have gotten into the habit in this country of just sort of saying that their political opponents have done something terrible," Barr said. "They think it's terrible. You know, 'It's enough for me to conclude he is terrible. Why isn't he in prison?' "

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NOEL KING, HOST:

If Joe Biden wins the election in November, his Justice Department will have a vital decision to make. Will it investigate and possibly prosecute President Trump? Here's NPR's national justice correspondent Carrie Johnson.

CARRIE JOHNSON, BYLINE: Joe Biden approaches the idea of prosecuting President Trump very carefully. Here's Biden with NPR Weekend Edition host Lulu Garcia-Navarro.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

LULU GARCIA-NAVARRO: Could you envision him, a former president, being prosecuted if the evidence shows wrongdoing?

JOE BIDEN: Look. The Justice Department is not the president's private law firm. The attorney general is not the president's private lawyer. I will not interfere with the Justice Department's judgment of whether or not they think they should pursue a prosecution.

JOHNSON: Then, Biden added...

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

BIDEN: I think it is a very, very unusual thing and probably not very - very - how can I say it? - good for democracy to be talking about prosecuting former presidents.

JOHNSON: Biden seems to be on the way to adopting the position of former President Barack Obama. Back in 2009, the newly elected Obama said he didn't want to get hung up on prosecuting wrongdoers. He meant the people who engaged in torture and warrantless wiretapping during the previous administration. Instead, he told ABC News his instinct was to make sure those practices never happened again.

(SOUNDBITE OF TV SHOW, "THIS WEEK")

BARACK OBAMA: And I don't believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward, as opposed to looking backwards.

JOHNSON: The Obama Justice Department convicted only one person, a government contractor, for abusing a detainee who later died. But Biden could have a harder time drawing those kinds of lines today.

JACK GOLDSMITH: It's not at all clear that looking forward and not looking backward is an available option.

JOHNSON: Harvard law professor Jack Goldsmith says most people aren't talking about how a Biden Justice Department might handle Donald Trump but, he says, they should be.

Congress and the Manhattan District Attorney have opened investigations into Trump and his company. Federal prosecutors have looked at his campaign payments in 2016 and his inaugural committee. Bringing a criminal case against a former president could widen the divide in the country. Again, Jack Goldsmith.

GOLDSMITH: Whether that's good for the country is a very hard question that's going to be very messy. Whether it's good for the Biden administration, whether it wants to be absorbed in being the first administration to ever prosecute a prior president - those are very hard questions.

JOHNSON: There could be a lot of political pressure. Some of Biden's rivals for the Democratic nomination didn't seem to think a Trump case would be a hard call. California Sen. Kamala Harris pointed at evidence of obstruction of justice uncovered by special counsel Robert Mueller. Here's Harris, now Biden's vice presidential pick, talking to the NPR Politics Podcast last year.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

KAMALA HARRIS: I do believe that we should believe Bob Mueller when he tells us, essentially, that the only reason an indictment was not returned is because of a memo in the Department of Justice that suggests you cannot indict a sitting president.

JOHNSON: Of course, when he was a candidate, Donald Trump called his opponent Hillary Clinton crooked and ate it up when crowds call for Clinton to be incarcerated. Remember retired General Michael Flynn on stage four years ago at the Republican National Convention?

(SOUNDBITE OF ARCHIVED RECORDING)

MICHAEL FLYNN: Yeah, that's right. Lock her up.

JOHNSON: The Trump administration brought no charges against Clinton. But it has launched investigations into former FBI Director Jim Comey, his deputy Andrew McCabe and the intelligence gathering process in 2016 - investigations the president mentions on Twitter almost every day.

Carrie Johnson, NPR News, Washington.

(SOUNDBITE OF PORTICO QUARTET'S "WE WELCOME TOMORROW") Transcript provided by NPR, Copyright NPR.