Yes, the Biden administration should hold Trump
accountable
Opinion by Philip Allen Lacovara
November 24, 2020 at 8:00 a.m. CST
Philip
Allen Lacovara, a former president of the D.C. Bar, served as counsel to the
Watergate special prosecutor.
After
the final tumultuous months of the Nixon presidency, Gerald R. Ford decided to
end the “long national nightmare” that was Watergate by
pardoning his predecessor, thus sparing Richard M. Nixon from the dock where
his senior aides awaited trial.
Because
I considered Ford’s pardon a serious mistake, I resigned in protest as
the counsel to the Watergate special prosecutor. I hope that when
President-elect Joe Biden assumes office, he will not repeat the same mistake.
Biden’s
natural instinct is to let bygones be bygones. He demonstrated this when he
brushed off attacks from Sen. Kamala D. Harris (D-Calif.) during the primary
debates and chose her to be his running mate. Biden and some of his advisers
may believe that the best way to
close the book on the Trump presidency, with all of its corruption, abuse and
mendacity, is simply to forget the past four years. In virtually any other
presidential succession, this course might be prudent and consistent with our
history of peaceful transitions without recrimination, vindictiveness or
rummaging around for criminality.
But one
need not embark on a malicious hunt to identify serious criminal abuses by
Trump and many of his closest aides. Their conduct has revealed a pattern of
disregard for the normal standards of public order, including those embedded in
federal criminal statutes. The issue, therefore, is whether it is sound public
policy to ignore these offenses to try to avoid further political rancor. There
are three reasons why I think we cannot ignore them.
First,
my reason for protesting Ford’s pardon of Nixon applies with even greater force
now. The Watergate special prosecutor was appointed to demonstrate that “no
person is above the law” — even a president. As White House tapes revealed,
Nixon falsely assured some of his co-conspirators that, “when the president
does it, it isn’t illegal.”
Trump
has publicly advanced an even more sweeping claim: In resisting grand jury
subpoenas issued by New York state authorities for his tax records, Trump
declared that a president enjoys “absolute immunity” from
even being investigated for possible crimes. In July, the Supreme Court
unanimously rejected that argument as inconsistent with constitutional doctrine
— just as it did Nixon’s.
The
problem I saw with Ford’s pardon of Nixon also applies to giving Trump a pass:
Doing so would effectively treat a president, even if a former president, as
above the law. Extending a pardon to Nixon while his co-conspirators — White House
aides H.R. Haldeman, John Ehrlichman and
attorney general John N. Mitchell —
were on their way to prison created an unwarranted, privileged position for the
former president.
Although
Biden is unlikely to issue a formal pardon to his predecessor, even deliberately
ignoring Trump’s crimes would similarly signal that a president is not subject
to equal justice under the law.
Second,
although this is not the space to catalogue the numerous avenues of potential
prosecution, it is sufficient to note that the report by then-special counsel
Robert S. Mueller III lists perhaps 10 or more incidents of
criminal obstruction of justice by Trump. More than 1,000 former Justice
Department prosecutors publicly asserted that, but for Trump’s
position at the time, any other person who had engaged in such conduct would
have be indicted. It would be irresponsible to conclude that such serious
offenses also should be ignored after Trump leaves office.
Third,
the Constitution uniquely prescribes that a president must swear to “faithfully
execute the Office of President of the United States.” This commitment
dovetails with the primary duty of the
president to “take Care that the Laws be faithfully executed.”
The
convergence between his duty and his oath imposes an obligation on the
president to ensure that all laws of the United States, including its criminal
laws, are enforced responsibly and equally against all persons. While
prosecutors have some discretion about what charges to bring and even about
whom to prosecute, it is no more permissible to conclude that former presidents
should be excused from criminal culpability than it should be for former corrupt
judges or pederast priests or bribe-taking television personalities.
I am
not suggesting that Biden should order his attorney general to prosecute Trump
and his close aides. I would detest any directive to “lock him up” as much as
Trump’s “lock her up” chant. All that is necessary and appropriate is to make
it unambiguously clear to career Justice Department prosecutors that they may
apply normal prosecutorial standards in deciding what to investigate and whom
to charge.
The
collapse of the impeachment process makes it even more imperative to treat the
criminal law as a real, available check on presidential abuses. Three
presidents have been impeached, but none has been convicted. The requirement
that two-thirds of the Senate vote to
convict makes this constitutional remedy a virtual dead letter. If a person who
succeeds in acquiring the presidency can flout the criminal law with impunity,
then we will have rendered our republic unrecognizable to the Founders and
dangerous for our descendants.
