A rap sheet for a former president
If Trump is prosecuted, obstruction of justice, bribery and conspiracy to defraud the U.S. could be among the charges.
By Barbara McQuade and
Joyce White Vance
Oct. 16, 2020 at 12:15 p.m. EDT
The next attorney general of the United States faces two daunting decisions: whether to investigate possible criminal conduct by a former president and members of his administration, and if so, whether to file charges.
The Justice Manual directs federal prosecutors to bring charges if they believe that an offense has been committed, if the admissible evidence is enough “to obtain and sustain a conviction,” and if prosecution will serve a substantial federal interest.
The reckoning
It will be up to the attorney general to decide whether filing criminal charges against
(Nishant Choksi for The Washington Post)
Donald Trump and his aides best serves justice, but public reporting suggests there is evidence that could support such charges. State prosecutors also may have evidence of illegal conduct. The statute of limitations for most federal offenses is five years. That means crimes that occurred as far back as 2016 could be charged until their anniversary date in 2021. Older offenses may also be charged if the conduct was part of an ongoing conspiracy — for instance, if a coverup continued within the five-year period covered by the statute. Trump has engaged in other deplorable conduct that probably does not amount to criminal activity. Hiding accurate information about the coronavirus epidemic, for example, may have contributed to the deaths of Americans, but the causal connection is probably too tenuous to charge him with crimes such as negligent homicide or manslaughter. Some say Trump’s conduct toward Russia is treason — including his silence following reporting about Russian bounties on U.S. soldiers in Afghanistan — but this is a nonstarter. Conduct cannot amount to treason unless a person provides aid and comfort to an enemy with whom our nation is engaged in armed conflict.
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Here are categories of possible crimes that prosecutors could consider — what the rap sheet of an ex-president might look like.
Obstruction of justice
The gist of this crime is impeding an investigation for a corrupt purpose. Special counsel Robert Mueller’s investigation of possible links between the Trump campaign and Russian interference in the 2016 election developed evidence of 10 instances when Trump was
involved in obstruction. In at least four of those instances, Mueller laid out evidence sufficient to prove each element of the offense: Trump’s efforts to limit Mueller’s investigation to future elections; to dissuade his former campaign chairman, Paul Manafort, from cooperating with prosecutors; to fire Mueller; and to cover up the attempt to fire Mueller. It is not necessary to show that any underlying crime was committed to establish obstruction of justice. Intentional interference in an investigator’s work is crime enough.
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Although some critics dismiss obstruction of justice as “mere process crimes,” prosecutors consider this a serious offense because it goes to the heart of the criminal justice system’s truth-finding mission.
Why a Biden White House should stay out of the way
False statements and perjury also fall within the obstruction family. During Mueller’s investigation, Trump refused to submit to an in-person interview but agreed to answer written questions. A less-redacted version of Mueller’s report released this summer revealed that the special counsel examined whether Trump lied in his written answers when he denied he had advance knowledge of the release of stolen emails by WikiLeaks, which is inconsistent with other evidence.
Family members and associates of Trump are suspected of committing perjury, or lying under oath, at congressional hearings. Lawmakers have pointed to discrepancies between the testimony of certain witnesses and the testimony of Donald Trump Jr., Jared Kushner, Stephen Bannon and Erik Prince.