Biden is in a tricky position when it comes to Trump being investigated

The president-elect could create further divisions in the country by pursuing the outgoing president, writes Kim Sengupta

Biden has to get his priories in order before he takes office (AFP/Getty)

There are 73 million reasons why Joe Biden may think the Justice Department prosecuting Donald Trump would not be a good idea, and it would be far better to let the departed president get away with any alleged crimes he may have committed.

Despite losing comprehensively in both the popular and electoral college votes, there is no denying that the outgoing president has expanded his voting base, with a significant number of his followers believing his claims of the election being stolen.

There is an obvious danger in these circumstances that these supporters will see the pursuit of their man through the courts as a provocation, and this could reignite highly-combustible divisions in the country.

Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election concluded Trump may have committed obstruction of justice on at least 10 occasions. But Mueller had decided that a 1973 Justice Department decision that a sitting president cannot be indicted meant that charging Trump with federal crime would be “unconstitutional”. That protection no longer applies after 20 January.  

But would Biden want his to be the first US administration to prosecute a former president? He played down the prospect this week of him pressing for investigations into Trump. In his speech as president-elect, he had stressed that this was a “time to heal” while pledging “not to divide, but to unite the country”.  

There may well be a desire to draw a line after the extraordinary turbulence of the Trump years. There are, however, major problems when it comes to a policy of inaction.

During the campaign, the vice president-elect, Kamala Harris, stressed that the Justice Department would have “no choice” but to move against Trump. Harris said: “I do believe we should believe Bob Mueller when he tells us, essentially, that the only reason an indictment was not returned is because of a memo in the Department of Justice that suggests you cannot indict a sitting president. But I’ve seen prosecution cases based on much lesser evidence.”

There is also a  strong feeling among those in the Democratic Party that Trump – who is using his last days to pardon former associates like Michael Flynn, who had pleaded guilty to lying to the FBI – should face justice.

For example, Eric Swalwell, a Democrat congressman from California, has said: “When we escape this Trump hell, America needs a presidential crime commission. It should be made up of independent prosecutors who look at those who enabled a corrupt president; example one, sabotaging the mail to win an election.”

Representative Bill Pascrell, a New Jersey Democrat, called for Biden to start investigations against Trump on his first day in office. The outgoing president, he said, had “engaged in treachery, in treason”, adding: “Failure to hold financial and political wrongdoing accountable in the past has invited greater malfeasance by bad actors. A repeat of those failures in 2021 further emboldens criminality by our national leaders and continues America down the path of lawlessness and authoritarianism. There must be accountability.”

Andrew Weissmann,  a senior Mueller prosecutor and one of his deputies, acknowledged that investigations and prosecutions of Trump “would further divide the country” and “surely consume the administration’s energy”. But, he continued: “Sweeping under the rug Mr Trump’s federal obstruction would be worse still. The precedent set for not deterring a president’s obstruction of a Special Counsel investigation would be too costly: It would make any future Special Counsel investigation toothless and set the presidency de facto above the law.”

Weissmann, writing in the New York Times, stressed that the Special Counsel’s team “amassed ample evidence to support a charge that Mr Trump obstructed justice ... What precedent is set if obstructing such an investigation is allowed to go unpunished and undeterred?”

Even if Biden attempts to halt federal prosecutions of Trump, he cannot stop the investigations taking place currently at state level, something he has acknowledged.

Trump is the subject of 15 inquiries, criminal and civil, by nine federal, state and district agencies into his business and personal finances, including his tax affairs, his campaign, his inaugural committee, and charities associated with him. Trump has denied all allegations.

The non-federal cases include one by the US Attorney’s Office for the Southern District of New York, stemming from charges laid against Trump’s personal lawyer and confidante, Michael Cohen, on campaign finance crimes related to hush money paid to Stormy Daniels and other women who allegedly had affairs with Trump (Trump has denied the affairs).  

Cohen, now bitterly estranged from Trump, has predicted his former boss “may soon be the first president to go from the White House straight to prison”.

Cyrus Vance Jr, the district attorney for Manhattan, is investigating what his office has described as “possibly extensive and protracted criminal conduct at the Trump Organisation”. As well as tax matters, it will examine whether Trump and his company engaged in bank fraud, insurance fraud, criminal tax fraud and falsification of business records.

Trump also faces legal action by alleged victims of sexual assaults, such as the magazine writer E Jean Carroll, who claimed that Trump raped her in a Manhattan department store in the Nineties. They are suing him for defamation after he accused them of making up the attacks.

Trump’s position was also used to try to benefit him. Last month, in an extraordinary move, the attorney general, William Barr, sought to substitute the Justice Department as the defendant in place of Trump in the Carroll case. A judge threw out the request, effectively saving the Carroll lawsuit from dismissal. The DoJ has appealed the ruling.

Weissmann points out that as well as the obstruction allegations from the Mueller inquiry, any evidence unearthed in the New York investigations could lead to Trump being liable for further federal charges.

There have been suggestions that Trump may pardon himself before leaving office. It remains unclear whether he can do so constitutionally and the issue came up during the confirmation hearing for Amy Coney Barrett to the Supreme Court. A new attorney general would be able to challenge such a move by Trump, says Weissmann.

There is another scenario to consider, if Trump avoids prosecution and then runs in and wins the 2024 election – not an entirely far-fetched scenario with Biden hamstrung by a hostile Senate if the Republicans retain control of that chamber.

The Trump administration has launched investigations into former FBI director James Comey and his deputy Andrew McCabe. Trump had also threatened to sack Barr if he did not indict Barack Obama, Joe Biden and many others for the supposed scandal he calls “Obamagate” – where Trump claims his predecessor used his last weeks in office to undermine the incoming administration. Trump has declared that prosecutions will follow once he was re-elected.  

Would Trump redux be more emollient and conciliatory? Or is it more likely that he would seek vengeance on his enemies? The former does not seem very likely judging by his actions during his first term in power.