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I, of course, don’t know if Donald Trump has committed any crimes. It’s possible that a jury will tell us the answer to that a couple of years from now.
For now, Trump is not just presumed innocent but is not even charged with any wrongdoing.
But suppose he actually did something for which he could be charged. Should he be prosecuted?
Let’s set aside for a moment the issue of a self-pardon by Trump or a drive-by pardon where Trump resigns on January 19, President-for-a-day Mike Pence pardons Trump, and then Joe Biden takes over at noon on January 20. Those pardons would raise hard constitutional questions, and no one’s ever mistaken me for a constitutional scholar.
Although I won’t discuss it here, please do remember, as many seem to overlook, that pardons have consequences. If a person receives a pardon, that person is no longer at risk of punishment and so loses the privilege against self-incrimination. If Trump were to receive a pardon and then be compelled to testify before, say, a committee of the House of Representatives, Trump would be required to speak. If Trump lied during that testimony, he could be prosecuted for the perjury.
Let’s also set aside other paths that people are talking about: A truth and reconciliation committee to investigate Trump’s conduct while in office, the appointment of an independent counsel to investigate Trump.
I’m a purist. I’m thinking about only two things: First, should Trump be prosecuted for federal crimes that he may have committed while in office?
Many Democrats shout “no.” Impeachment didn’t hurt Trump politically; it may have helped him. Why, Democrats ask, should Democrats do something as counterproductive as prosecuting Trump?
I ask in return: Why do Democrats get a say in this? Neither you nor I should care whether a prosecution helps or hurts a political party. That’s irrelevant; put it out of your mind.
Independent of party politics, should Trump be prosecuted for federal crimes that he may have committed while in office?
On the one hand, no. We should not prosecute former presidents. It sets a terrible precedent. And remember: What goes around comes around. Trump’s been screaming for four years that Barack Obama committed crimes and should be prosecuted. I’m confident that, if Trump is prosecuted next year, Republicans will be screaming that Biden did something felonious while in office and should be prosecuted in 2025. I’m not sure I care to live in that world.
On the other hand, yes. Why should the president be treated any differently than other citizens? If you or I tried to pull off some felonious crap with the president of the Ukraine, we’d probably go to jail. Why shouldn’t Trump?
This is a close call, but one could reasonably lean toward nonprosecution. You and I are not the president; the president should not be prosecuted for fear of generally disrupting the political system; there are lots of benefits to being president, and not being prosecuted for federal crimes, if any, committed while in office is just another benefit of the office.
How about prosecuting the president not for policy-related matters but for things he did in his own self-interest?
I’m with you on the policy matters: We should give presidents an extraordinarily wide berth on matters that relate to policy, even if those actions could be in the president’s own partisan interest. Thus: I don’t know exactly what the “torture memos” were in the George W. Bush administration, but they had something to do with how aggressive American interrogators could be in pursuing evidence of possible attacks against the United States. I’d steer far clear of prosecuting anyone for these things: People thinking in good faith about the appropriate course to protect America are entitled to deference, even if you disagree violently with those people’s conclusions.
Many — maybe most — presidential decisions rest at the intersection of policy and partisanship. Any policy that a presidential candidate campaigned on is partisan when the president later enacts that policy. For example, it may have helped Democrats (or Obama personally) for Obama to have passed Obamacare; that’s government. It may have helped Trump to take assorted action to “build the wall.” That’s the intersection of policy and partisanship; give him deference.
I lean the same way on more personal issues, such as the suggestion that Trump should be prosecuted for having violated in some way the Emoluments Clause or the Hatch Act. Presidents do many things that benefit the president personally; unless we can draw an extraordinarily bright line between office-related conduct and solely personal conduct, we should be wary of prosecutions.
Here’s the harder question: Should Trump be prosecuted for state crimes he may have committed before he took office?
If you think about the politics of this, you’ll give yourself a headache: Democrats run both the Manhattan District Attorney’s Office and the office of the New York Attorney General. (The Attorney General has been reported thus far to be thinking only about civil liability, although sometimes these things take on a criminal life.)
Line prosecutors in the Manhattan DA’s office always scream, “Politics play no role in what we do!” That’s a pretty good sign that they’re doing political stuff. (Ah, c’mon Cy; I’m just kidding. Can’t you take a joke?)
The politics of this are funny: Perhaps the national Democratic Party, taken as a whole, doesn’t want to prosecute Trump for anything, for fear that a prosecution would energize his base.
New York Democrats may feel differently about this.
And folks in the local prosecutor’s office may feel differently still. Some of those folks may have political ambitions. They may think that massive name-recognition resulting from a prosecution is a good thing for them personally; the rest of the party be damned.
Most presidents won’t have to worry about prosecution for things they did before entering office. If presidents aren’t prosecuted during the four years that they’re in office, the statute of limitations would have run on most claims by the end of the presidential term.
But other than that, on state prosecutions, perhaps we should do an unusual thing: Let state prosecutors pursue wherever the evidence takes them, and then proceed in the way the evidence suggests.
Wouldn’t that be a pleasant change of pace?
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
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