The last thing that President-elect Joe Biden wants to do is be inundated by crimes committed by the previous administration. Biden is a "worker," looking forward toward a future that repairs relationships with the international community, fixes regulations, revives government agencies and, hopefully, bring public servants back to fill positions. There's just one problem, however, Donald Trump.
Writing in the Washington Post on Tuesday, Philip Allen Lacovara, a former counselor to the Watergate special prosecutor, explained that Biden may not have any options. It's a sentiment, Andrew Weissmann, former senior attorney to special counsel Robert Mueller, agrees must happen.
In the case of former President Barack Obama, he was facing the worst economic recession since the Great Depression. Prosecuting former President George W. Bush, Gina Haspel and others for the violent torture conducted on prisoners of war wasn't a priority. In the case of former President Richard Nixon, Gerald Ford said he hoped to end the “long national nightmare” that was the Watergate scandal. Weissmann argued Biden has no other option but to uphold the power of the special counsel. Lacovara agreed, saying Biden shouldn't repeat the same mistakes as previous presidents.
"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," wrote Lacovara. "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."
Trump is in a category by himself. "One need not embark on a malicious hunt to identify serious criminal abuses by Trump and many of his closest aides," said Lacovara, explaining that the conduct by him and his administration showed a pattern of disregard for public order, "including those embedded in federal criminal statutes."
In Watergate, a special prosecutor was appointed because "no person is above the law," even a president. With Nixon, the interview with David Frost revealed the former president's attitude was "when the president does it, that means that it is not 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," recalled Lacovara. "In July, the Supreme Court unanimously rejected that argument as inconsistent with constitutional doctrine — just as it did Nixon’s."
Ford's problem is similar to Biden's in that it doesn't merely give Trump a pass, it would treat a president as if he's above the law. Biden isn't likely to issue the blanket pardon that Ford did, but ignoring the crimes, Lacovara said, "would similarly signal that a president is not subject to equal justice under the law."
Mueller's two-volume report detailed at least ten incidents of criminal obstruction of justice that would normally be prosecuted by the Justice Department if Trump wasn't the president.
"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," wrote Lacovara. "It would be irresponsible to conclude that such serious offenses also should be ignored after Trump leaves office."
Weissmann explained that it would essentially nullify the office of the special counsel. If a president can go un-prosecuted for obstructing their investigation, there's no real point of having a special counsel.
Lacovara's third point was that all presidents swear to “faithfully execute the Office of President of the United States.” Doing so means that the president must also “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," explained Lacovara. "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."
Whether Biden passes the job off to the Justice Department or an independent counsel is up to him.
"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," said Lacovara.
Given the Senate essentially collapsed the impeachment process, now is the time 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," Lacovara closed. "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."