This article originally appeared in the December 2, 2020 Concord Monitor.
I recently heard an interview with Andy Card, who served as Chief of Staff for President George W. Bush and later as president of Franklin Pierce University. In his opinion, soon-to-be president Joe Biden should “respect” his predecessor, soon-to-be ex-president Donald J. Trump. In other words, he should not seek retribution and should leave him alone.
In a recent New York Times op ed column, Andrew Weissman, a senior prosecutor in the Mueller investigation, takes a different view. He says that a president should be held more accountable to the rule of law, not less. In his opinion, the next Attorney General should not hesitate to investigate Trump.
Who has the better case? On the Andy Card side, I can almost hear some Trump supporters say: “First they win the election by fraud, and now they want to put him in jail.”
But others, and not just people who voted for Trump, might follow a different route to the same conclusion. “It’s not a good idea,” their argument might go, “for the federal government to go around prosecuting former presidents. No matter how strongly you feel or how much you dislike Trump,” they might add, “it would further divide us when what we really need is to come together.”
The contrary Weissman position can be framed in the form of a question: If an ordinary citizen should be prosecuted for violating the law, is there a good reason why a former president should not be held at least to the same standard? The argument might also consider the precedent inaction would create, and whether we want future generations to look back on this period as a time when we looked the other way.
Both points of view have some merit. Of course, we don’t want to sow further divisions in our country. And besides, this isn’t necessarily a choice between having your cake and eating it too. The New York State authorities are looking into Trump’s business activities before he became president, and the Supreme Court has upheld their right to do so. The federal government can therefore stand down, so to speak, and leave it to the State of New York to do the investigating and the prosecuting. That may be a bit of a copout, but it’s not the worst outcome.
Still, if Trump’s former lawyer-fixer Michael Cohen could be convicted and sent to federal prison for tax evasion and campaign finance violations, should his unindicted co-conspirator, referred to in Cohen’s indictment as “Individual-1,” be let off the hook?
During his 2016 campaign, Trump famously boasted that he could shoot someone on Fifth Avenue and not lose any votes. And in a recent court argument, one of his lawyers told the judge that if Trump shot someone while president, he could not be charged criminally during his presidency.
So far as I know, Trump hasn’t shot anyone, but assume, just for the sake of argument, that Trump did shoot someone on federal property while he was president. That is purely hypothetical, but as a law professor of mine used to say, “it’s my hypothetical.” How many of us would believe that he should not be held responsible starting on January 21, 2021, the first full day of his post-presidency?
If, as John Adams said, ours is “a government of laws and not of men,” then the rule of law necessarily applies as much to a former president as it does to the rest of us. What that means, absent a valid presidential pardon, is that we should follow the evidence wherever it takes us. It is not as if this would be a fishing expedition. The Mueller Report cites ten instances that could support obstruction of justice charges.
Prosecution cannot be justified for petty offenses, only grave ones. As defined by 18 U.S. Code, Section 1503, the words “obstruction of justice” refer to an act that “corruptly … or by any threatening letter or communication … endeavors to influence, obstruct, or impede, the due administration of justice.” Those words would seem to clear the gravity hurdle. An important element of this crime is an intent to obstruct an existing federal proceeding, meaning that the bar to conviction, and possible imprisonment, is set very high.
I come to my opinion reluctantly, fully aware of the media spectacle that would inevitably take place. I still think it’s worth it. If Trump were to be charged, he would have all the protections afforded by the Constitution, including the presumption of innocence. Conviction would require a unanimous jury to find him guilty beyond a reasonable doubt. These are bedrock principles of our justice system.
Despite its imperfections, I believe in that system. So should the American people.