New York Times Magazine: Can America Restore the Rule of Law Without Prosecuting Trump?
New York Times Magazine: Can America Restore the Rule of Law Without Prosecuting Trump?
EARLY IN NOVEMBER, as President Trump challenged the integrity of the election with baseless lawsuits, Joe Biden delivered his first speech as president-elect, declaring it a “time to heal.” It was a phrase that many Americans were surely longing to hear, given the precarious state of the nation’s political culture. But it was also one that carried significant historical weight and possible implications for the future. When President Gerald R. Ford pardoned Richard Nixon for his role in the Watergate scandal, he, too, spoke about the need for “healing.” (Ford titled his subsequent memoir “A Time to Heal.”) When President Lincoln delivered his second inaugural address during the waning days of the Civil War, he spoke in similar terms about the imperative to “bind up the nation’s wounds.” Whether Biden intended to do so, his words provided an early signal about one of the first questions he is going to confront as president: What to do about Donald Trump? Biden faces many daunting challenges — mitigating the ongoing damage from the pandemic, repairing institutions, restoring faith in government — but how to deal with his predecessor’s flagrant and relentless subversion of the rule of law is in many ways the most vexing.
Last year, one of Trump’s lawyers, William Consovoy, memorably argued in open court that a sitting president could shoot a man in public and not be prosecuted. The legal validity of this claim notwithstanding, there is nothing to protect a former president from prosecution. No ex-president has ever been indicted before, but no president has ever left office with so much potential criminal liability. …
The stakes of prosecuting Donald Trump may be high; but so are the costs of not prosecuting him, which would send a dangerous message, one that transcends even the presidency, about the country’s commitment to the rule of law. Trump has presented Biden — and America, really — with a very difficult dilemma. “This whole presidency has been about someone who thought he was above the law,” Anne Milgram, the former attorney general of New Jersey, told me. “If he isn’t held accountable for possible crimes, then he literally was above the law.” …
An election-law case against Trump might be more appealing to a Biden Justice Department. When Cohen pleaded guilty to violating two campaign-finance laws in the Southern District of New York, he testified in federal court that Trump directed him to arrange for the hush-money payments. Trump was part of the investigation, but was protected by the Justice Department policy against indicting a sitting president. He was instead named an unindicted co-conspirator in the case — “Individual-1,” as the prosecution’s filings called him.
There is not much disagreement among campaign-finance experts about whether Trump could be indicted. The hush-money payments to Daniels and McDougal were clearly meant to prevent the disclosure of information that could have damaged Trump’s campaign. As such, they almost certainly violated several campaign-finance laws, including the prohibition against accepting contributions in excess of $2,700 and the failure to properly report contributions to the Federal Elections Committee. And because the amount of money involved exceeded $25,000, the violations would be considered felonies; each one would be punishable by up to five years in prison. Judging from the facts, it looks like a strong case. There is already material evidence of the scheme: Cohen presented congressional investigators with copies of canceled checks from Trump and the Trump Organization — reimbursements for the payments that he made to Daniels and that the Trump Organization classified as legal fees.
Campaign-finance laws were designed to limit the influence of private actors in elections — “to prevent not only the actual corruption of public officials but even the appearance of corruption that could undermine voter faith in government,” as Paul S. Ryan, the vice president of policy and litigation at the election-watchdog group Common Cause, told me.