Trump Prosecution After President: Last year, when Vice President-elect Kamala Harris was still running for president, she was asked if her administration’s Justice Department would take the extraordinary step of pursuing criminal charges against a former president, Donald Trump. “I believe that they would have no choice and that they should, yes,” she responded.

There was and still is a choice, of course, but it’s a choice that President-elect Joe Biden will now have to make, as well as a question that has never been answered in the nation’s history: If the president is suspected of having committed a crime, should he be investigated, and potentially prosecuted, after leaving office? Would it even be possible? Here’s what people are saying.
The power — and limits — of presidential pardons

Trump has claimed that he has “the absolute right to pardon myself,” raising the possibility that he may try to do so before Jan. 20. The Constitution grants the president the authority to grant “reprieves and pardons,” though only for federal crimes, and not in cases of impeachment.

But beyond those exceptions, the power is famously broad and has occasionally invited accusations of abuse. President George H.W. Bush, for example, pardoned six Reagan administration officials implicated in the Iran-contra scandal, while President Bill Clinton pardoned his own half brother for a cocaine conviction, as well as a wealthy financier and Democratic donor who was considered a fugitive for tax evasion.
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Perhaps with these precedents in mind, President Trump’s advisers have recently broached the idea of using the power to shield his children, his son-in-law and his personal lawyer, Rudolph Giuliani, from potential prosecution. Such pre-emptive pardons are unusual, but the Supreme Court ruled in 1866 that the president has the power to issue them. In the most famous example, President Gerald Ford pardoned President Richard Nixon after his resignation, though the practice dates back to George Washington’s presidency.

Whether Trump would be able to pre-emptively pardon himself, however, is a very different question. “There is no definitive answer because no president has ever tried to pardon himself and then faced prosecution anyway,” my colleague Charlie Savage explains. “As a result, there has never been a case that gave the Supreme Court a chance to resolve the question.”
To prosecute a predecessor

As Jonathan Mahler details in The Times Magazine, there are numerous potentially criminal acts for which the president could be investigated, including tax evasion and fraud, campaign finance law violations, obstruction of justice, public corruption and bribery. “No ex-president has ever been indicted before,” Mahler writes, “but no president has ever left office with so much potential criminal liability.”

But the risk that Biden would be perceived as weaponizing the Justice Department for partisan ends is profound, Ruth Marcus argues in The Washington Post. “Anyone who believes it to be simple is not grappling with the implications of taking the unprecedented step of lodging criminal charges against a former president,” she writes. “The United States is not a place, chants notwithstanding, where those in power lock up their political enemies. There is a delicate line between the pursuit of justice and indulging the urge for retribution.”
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And because of how broadly presidential powers are interpreted, it would be extremely difficult to prove that any of Trump’s actions in office were actually criminal, according to Eric Posner, a professor at the University of Chicago Law school.

“The Democrats cannot win,” he writes in The Times. “An investigation and potential indictment and trial of Trump would give the circus of the Trumpian presidency a central place in American politics for the next several years, sucking the air out of the Biden administration and feeding into Trump’s politically potent claims to martyrdom.”

Yet as high as the costs of holding Trump accountable may be, some think the costs of not doing so would be even higher. “This whole presidency has been about someone who thought he was above the law,” Anne Milgram, the former attorney general of New Jersey, told Mahler. “If he isn’t held accountable for possible crimes, then he literally was above the law.”

For many, the point of a national investigation into Trump would be much larger than the man himself, a means by which not only to seek justice for past harms but also to prevent future ones from being inflicted. As Adam Serwer has noted in The Atlantic, it was President Barack Obama’s decision to “look forward as opposed to looking backwards” on the George W. Bush administration’s systematic use of torture that enabled Trump to appoint Gina Haspel, who oversaw a secret prison where at least one detainee was tortured, to head the C.I.A. in 2018.
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“There is no reason for powerful people to follow the rules if they know they cannot and will not suffer any consequences for breaking them,” Serwer wrote at the time. “A system in which only the weak are punished is not a two-tiered system of justice, but one in which justice cannot be said to meaningfully exist.” For that reason, Martin Flaherty, an authority on other nations’ struggles with state crimes, told Jane Mayer at The New Yorker that investigating Trump could have “a salutary effect” for the country.

Biden has promised he would stay out of any prosecutorial decision the Justice Department might make about his predecessor. But Renato Mariotti argues in Politico that an investigation by a special counsel — appointed by the attorney general, not Biden — would be the best way to ensure the process’s independence.
The Manhattan factor

If the president does successfully pardon himself — or if Biden’s administration simply decides to “move on,” as one adviser said is his preference — any criminal investigation of Trump would be left up to the states.

For over a year now, the Manhattan district attorney, Cyrus Vance Jr., has led the only known such investigation, which concerns a range of potential financial crimes predating Trump’s presidency. (Trump faces many more civil cases, including the New York attorney general’s investigation into his business practices and a defamation suit from E. Jean Carroll, who claims he raped her in the 1990s and harmed her reputation by calling her a liar while in office.)

Vance’s investigation has been stalled since last fall, when the president sued to block a subpoena for his tax returns and other records, in a bitter fight that for the second time is expected to be resolved by the Supreme Court. The scope of Vance’s investigation is unknown, but prosecutors have suggested in court papers that they are looking at a range of potential crimes, including tax and insurance fraud and falsification of business records.

“He’ll never have more protection from Vance than he has right now,” Stephen Vladeck, a law professor at the University of Texas, told The Times. “And there is very little that even a new administration that wants to let bygones be bygones could do formally to stop him.”

But prosecuting Trump under state law poses its own challenges. New York’s state courts give defendants far more protections than federal courts, and there are stricter rules about what evidence can be presented to a grand jury. What’s more, Vance has not yet committed to running for re-election next year, and the race to replace him is crowded with candidates who have made the president’s legal fate into a campaign issue.

At the very least, however, state prosecutions would avoid “the specter of a sitting president weaponizing his Justice Department against a political rival,” argues Randall Eliason, who teaches white-collar criminal law at George Washington University Law School and opposes a federal criminal investigation of Trump. But by the same token, Posner says that any convictions for Trump’s pre-presidential behavior “will not reflect on his presidency nor hold lessons for future presidents.”
Beyond Trump

In the end, Mahler argues, the dilemma about how to move forward is less about Donald Trump than about the structural problems his presidency laid bare. “Trump may have turned the executive branch into an instrument for his personal gain and deliverance,” he writes, “but it was the country’s legal and political systems that enabled him to do it.”

To many, the challenge of fixing those systems — of holding not only Trump but the country as a whole accountable to its professed ideals — is not one that legal punishment alone can meet.

“A reckoning may take different forms — investigations, hearings, trials, public assemblies — but it must be a national project, not the heroic quest of a lone federal prosecutor, state attorney general, or investigative reporter,” Masha Gessen writes in The New Yorker. “Put more simply, we have to talk about what happened and about how we go on living in such a way that it doesn’t happen again.”
The New York Times