One of the most difficult issues facing any democratic leader is whether to prosecute a predecessor for alleged wrongdoing. Imprisoning a rival can look like vindictiveness and spark a violent backlash (as in South Africa). But not prosecuting a corrupt leader can be an invitation to even greater abuses. “Our research on prosecuting world leaders,” write three University of Washington researchers, “finds that both sweeping immunity and overzealous prosecutions can undermine democracy.”
That is the thorny dilemma confronting Attorney General Merrick Garland now that the House has voted to hold former Trump White House aide Stephen K. Bannon in criminal contempt of Congress for refusing to cooperate with an investigation of the events of Jan. 6. Whether or not the Justice Department prosecutes Bannon will signal whether Garland will remain content to target the rank-and-file terrorists who invaded the Capitol — to date some 650 suspects have been arrested — or whether he will go after the capos who incited the insurrection.
So far, Garland has been pretty restrained in the exercise of his prosecutorial powers when it comes to former president Donald Trump and his confederates — which isn’t necessarily a bad thing. The Justice Department has indicted Thomas J. Barrack Jr., a Trump friend and fundraiser, on charges of being an unregistered foreign lobbyist, and it is investigating Trump lawyer Rudolph W. Giuliani’s tangled ties to Ukraine. The Justice Department might be pursuing other investigations in secret, but many observers think that Garland is deliberately deferring to local prosecutors, where he can, to avoid politically vexatious cases.
The Trump Organization and its longtime finance chief, Allen H. Weisselberg, have already been indicted on tax fraud and other charges by the Manhattan district attorney. Now the company faces an investigation by the Westchester County, N.Y., district attorney’s office, which is examining financial dealings at a golf course the company owns. The Fulton County district attorney is also investigating Trump for his attempts to interfere with the 2020 election in Georgia. (Trump was taped telling the Georgia secretary of state, “I just want to find 11,780 votes.”)
But is this sufficient given the extent of Trump’s abuses? Rep. Adam B. Schiff (D-Calif.), chairman of the House Intelligence Committee, doesn’t think so. Last week, he told Yahoo News: “I think there’s a real desire on the part of the attorney general, for the most part, not to look backward. Do I disagree with that? I do disagree with that, and I disagree with it most vehemently … In my view, you don’t ignore the crimes that have been committed by a president of the United States.”
There is a long list of alleged offenses for which Trump should be investigated. Trump’s former attorney, Michael Cohen, was sentenced to three years in prison in part for violating campaign finance laws by paying off two of Trump’s rumored girlfriends during the 2016 campaign. Yet Trump (“Individual 1”) has never been charged. Schiff asks: “So what’s the argument that the guy that did the coordinating and did the directing gets a pass?”
Then there were all the examples of alleged obstruction of justice uncovered by then-special counsel Robert S. Mueller III. More than 1,000 former prosecutors concluded that “the conduct of President Trump described in special counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting president, result in multiple felony charges for obstruction of justice.” Trump is no longer president. So why isn’t he being indicted?
The Ukrainegate scandal offered more examples of potential criminality by Trump, including violations of the bribery and campaign finance statutes.
Trump faces even more potential exposure for his role in the Jan. 6 insurrection. New York University law professor Ryan Goodman, co-editor of the Just Security blog, told me that Trump may have, at a minimum, violated federal laws against impeding or disrupting “the orderly conduct of government business” or an “official proceeding.” It might even be possible to charge the ex-president with more serious offenses such as a seditious conspiracy “to overthrow … the Government of the United States” and “insurrection against the authority of the United States.”
Local prosecutors cannot investigate most of these crimes. Only the Justice Department has the power to do that. Of course, there is no guarantee that a Justice Department investigation would lead to indictment or conviction. But failure to investigate would offer Trump a de facto pardon — and an invitation to do even worse should he return to power.
That’s why I think Garland needs to appoint a special counsel to thoroughly investigate Trump’s abuses of power; indeed, he should have done so months ago. Naturally Trump and his partisans would describe any investigation as a “witch hunt,” but they will make the same accusations against local prosecutors who are also Democrats. That it would still be up to a jury to convict him would provide a measure of political insulation.
There are real risks — including more violence by Trump supporters — in the Justice Department investigating and potentially prosecuting the former president. But there are even greater risks in allowing him to get away with his assault on democracy without having suffered any consequences worse than the loss of his Twitter account.
