After President-elect Joe Biden takes office and Donald Trump exits the White House, federal and state prosecutors will have to decide whether to charge the former president based on ongoing criminal investigations. Prosecuting a former head of state is no small matter and would be unprecedented in the United States. But the egregious nature of President Trump’s conduct, and the particular threat he poses to democratic institutions, strongly favor an indictment if the evidence warrants it.
A controversial Justice Department policy dating from the Watergate Scandal of 1972 makes a sitting president immune from prosecution. Aside from the legal hurdles, formidable practical obstacles deter prosecuting a sitting president. But once a president leaves office, as Donald Trump will on January 20, those obstacles disappear.
President Trump could face criminal prosecution on several fronts. The Manhattan District Attorney is investigating hush-money payments made in the run-up to the 2016 election to two women who claimed they had affairs with Trump; the New York Attorney General is looking into possible tax fraud by the Trump Organization for improperly inflating the value of its assets to secure loans and obtain tax benefits; and the Southern District of New York, which successfully prosecuted Michael Cohen, Trump’s former lawyer, and fixer, has conducted investigations into numerous Trump associates and other interests linked to the president. Of the various investigations, the Manhattan District Attorney’s probe, which has already secured the right to obtain President Trump’s personal and corporate tax returns, seems the most likely to result in criminal charges.
As with any investigation, the decision to prosecute depends ultimately on the strength of the evidence. But charging a former president involves other considerations, requiring a more nuanced determination and cogent public defense.
The strongest justification is that no one is above the law. But while true in principle, practice suggests a more complicated reality. Prosecutors have discretion not to bring charges even when they believe a law has been broken, and they routinely decline to do so for myriad reasons, including an assessment of the public interest, a desire to conserve limited resources, or a suspect’s agreement to cooperate.
These considerations are magnified when it comes to a prior administration. President Obama, for example, chose not to pursue investigations into torture committed during the Bush administration despite substantial evidence of illegal interrogation practices because he believed the country needed “to look forward as opposed to looking backwards.” Such investigations, the administration also calculated, would have risked considerable political backlash. So the norm of criminal responsibility yielded to pragmatic considerations.
Prosecutors deciding whether to charge President Trump will face similar considerations. President Trump will undoubtedly malign any prosecution, attacking its motives and accusations. A prosecution could thus fuel Trump’s narrative of a witch hunt and create sympathy for him, at least among some supporters. Even so, countervailing factors suggest a prosecution would benefit the country as it seeks a return to normalcy.
A criminal prosecution will remind Americans that lawbreaking has consequences, even at the highest levels of government. President Trump did not merely shatter unwritten norms; he also broke laws. Trump, moreover, did so because he believed he would never face justice, whether for payoffs to quash stories of sordid personal conduct or for obstructing justice during the investigation of Russian interference into the 2016 election. Criminal prosecutions cannot feasibly capture the dizzying array of President Trump’s malfeasance. But even a single indictment can send an important message about the power of institutions in a democracy to hold the most powerful individuals to account.
A criminal prosecution will also promote stability. As the field of transitional justice teaches, nations emerging from a period of war or social conflict must decide whether prosecuting former officials will jeopardize the fragile peace and prevent the country from healing. While the United States has not experienced such extreme violence or unrest, President Trump’s deliberate effort to undermine the election, press wild conspiracy theories, and incite violence among his avid supporters (many heavily armed) will prompt concerns that charging Trump will inflame existing tensions and derail a political transition. But these concerns should not dissuade prosecutors. President Trump will seek to undermine President-elect Biden’s administration at every turn regardless of what prosecutors do. Further, Trump will cite an absence of prosecutions as proof the investigations were meritless or, worse, a political stunt. If there were reason to believe Trump would refrain from sowing the seeds of hatred and distrust by propagating lies among his nearly 90 million Twitter followers, the public interest calculus might be different. But since that will never happen, any possible peace dividend from declining to pursue meritorious charges is non-existent. There is, in short, no trade-off. On the contrary, conviction by a jury of his peers could help persuade at least some of President Trump’s supporters that the allegations against him were true and restore faith in the system.
President-elect Biden, to be sure, has made an urgent plea for national unity. If his administration prosecutes the former president, it might blur that message and undermine Biden’s ability to govern. But a state prosecution for conduct pre-dating Trump’s presidency, such as the crimes New York officials are investigating, would help depoliticize any criminal proceedings. A state prosecution would also avoid any possible complications were President Trump to seek to pardon himself on the way out the door—an uncertain but untested exercise of the pardon power—since the power does not extend to state charges.
The biggest risk is an acquittal, which President Trump will pounce on to vindicate himself and further divide the country. But if the evidence is strong, prosecutors should not flinch. Ultimately, America must trust its institutions and its belief in the rule of law. Prosecuting Donald Trump would help demonstrate that trust.
Jonathan Hafetz is Professor of Law at Seton Hall University.
Suggested Citation: Jonathan Hafetz, The Case for Prosecuting Donald Trump, JURIST – Academic Commentary, November 19th, 2020, https://www.jurist.org/commentary/2020/11/jonathan-hafetz-trump-prosecution/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
