I have been all for prosecuting Trump.
My argument has been, aside from visceral pleasure, that nothing says
“wrong” like conviction and, hopefully, jail. Trump’s
improprieties are manifest; it's only a question of picking which
ones rise to the level of federal crimes and which are worth
What are the consequences of not
prosecuting? I point to the comparison between Watergate and
Iran-Contra. In Watergate, the law took its course, first under
Archie Cox, then under Leon Jaworski. Convictions were obtained,
jail time was served, front page pictures were rife. Many savored
the perp walks. People were changed by their incarcerations.
Charles Colson found God and prison reform. John Dean was steeled
for a life of chastened righteousness and wisdom. Others simply
lived with the ignominy; some were better for the ordeal, some not.
It was a righteous result.
In addition, there were far-reaching,
reforms, including the Inspector General
system. And moreover, Watergate retains a stench. Say “Watergate,”
and you can smell it. If they hadn't followed the law and let it
ride, the stench would not have lingered.
The Nixon pardon was something else.
It was bad politics then, and it was bad policy for all-time. If
Ford, never known for his perspicacity, had worked out the possible
consequences, not he, but some on his brain trust, might have
foreseen that at some time in the future, if another President broke
the law, the question of immunity might come up, and it would be a
question rather than a certainty. As we now look back, we don't say,
“Prosecute Trump, of course. What he has done was worse than
Nixon, and Nixon was convicted.” He might not have served jail
time, but conviction would have served as an important precedent of a
For contrast, see Iran-Contra.
Iran-Contra is a cautionary tale where pardons interrupted the
course of justice for crimes against the constitution by high-ranking
officials, possibly involving Vice-President George H. W. Bush, and
possibly involving President Ronald Reagan. Taking advice from
then-Attorney General Bill Barr, to the furious consternation of the
investigators who were taking the case forward, on Christmas Eve of
1992, the month after he had been defeated for a second term by Bill
Clinton, Bush pardoned the guilty officials and froze any
investigation into himself.
Who were those he pardoned? Who
remembers? But we should. Bush's line of explanation was so lame:
“[The] common denominator of their motivation—whether their
actions were right or wrong—was patriotism.” He criticized the
years-long investigation run by Walsh as reflective of “what I
believe is a profoundly troubling development in the political and
legal climate of our country: the criminalization of policy
Who remembers what former judge
Lawrence Walsh, the Independent Counsel who was pursuing the case,
said at the time?
“[The] pardon of Caspar Weinberger
and other Iran-contra defendants undermines the principle that no man
is above the law. It demonstrates that powerful people with powerful
allies can commit serious crimes in high office—deliberately
abusing the public trust without consequence. Weinberger, who faced
four felony charges, deserved to be tried by a jury of citizens.”
He concluded, “The Iran-contra cover-up, which has continued for
more than six years, has now been completed with the pardon of Caspar
The answer to that question is: not
many remember. The message was, as opposed to the message of
Watergate, what Walsh said it was – the powerful can be above the
Therefore, what I have thought is that
under Biden and whoever comes after him, justice must take its
course. No accepting whatever pardons Trump might issue, no “forgive
and forget,” no “let's move on,” no “the future rather than
the past.” The past matters an awful lot when it comes to the
But, now comes this New York Times oped
by law professor Eric Posner that says that pursuing Trump might not
be so easy as we think it is.
The constitution is intentionally vague on exactly what presidential
crimes might be, the powers of the President have been increasingly
expansive, and courts are reluctant to act against a President.
Posner focuses on charges of obstruction of justice, bribery and
extortion in dealing with the Ukraine, and emoluments. These would
be tough cases, he says. They seem more solid to me than they do to
him, but he's the law professor, and he's probably right. He says
that what would be needed for successful prosecution would be crystal
clear cases. Bringing a case against Trump where Trump might have a
decent chance of beating the rap would be a mistake, Posner says, and
I agree. Trump walking triumphantly out of federal court would be a
In addition to which, what Posner
doesn't mention, is the apparent imminence of pardons, almost
certainly for Trump’s friends and family, and quite possibly for
himself. The self-pardon ultimately would go to the Supreme Court
if he were to be accused of committing a federal crime. Even if the
ruling went against him, the time spent determining the validity of
the self-pardon would probably take Trump well along in his remaining
natural life. The friends and family pardons, if appropriately
constructed, will probably protect the miscreants from being
In other words, it seems probable that
the whole Trump spree while in the White House will go unprosecuted
in federal venues. The Trump post-transgression period will
certainly not resemble Watergate, and might be even more benign to
the perpetrators than the Iran-Contra fiasco, where at least there
were some charges and some guilty pleas and sentences, although they
were very light ones. In other words, the message to future
Presidents will be, you are above the law, do what you want, you are
where does that leave us? Up the creek? Maybe so, when it comes to
federal legal actions against the Trumps and other pardonees. But
what Trump has done is so much more inimical to the integrity of the
country under the constitution that either Watergate or Iran-Contra,
that even if perp-walks and convictions and orange jumpsuits are not
in the cards, the country needs and deserves constant spotlights on
the depredations. (If state and local legal
actions against the Trumps are successful, as they probably will be, this will help.) It could start with a Post-Trump Reforms Commission.
List the depredations, harp on them, focus on what happens when you
are on the honor system and a dishonorable group takes over assign
responsibility, and fix the problems. Let everyone know very clearly
what the depredations were. If the laws are too vague, that can't
stop the repair process. You can't face the future with a limp.
But just because the legal system as
currently constructed might protect the Trumps from federal
prosecution, that doesn't mean that the country should be vulnerable
to a replay with someone else. What we need to do is to take the
obvious miscarriage of justice as a guidepost for enacting Post Trump
Reforms. I have suggested a menu for Post Trump Reforms here.
Included in those suggested reforms are detailing in more specific
legislation what is required in cooperating with investigations, what
exactly are the prohibited activities in consorting with foreign
countries in influencing our elections, what are prohibited
emoluments. Along with the enumeration of details, specific and
severe criminal penalties also need to be specified. David Levine
and I have suggested reforms to the pardon power, requiring the
Speaker of the House to cosign all pardons, here.
Naturally, the Posner article impelled
David and me to send a response in to the New York Times. We assume
it won't be published –
too much competition. But no matter; we like it, and you might, too.
It reiterates some of the points I just made, but its brevity and
cogency make it worth printing here.
Posner might well be right that Trump's violations might not be
prosecutable successfully under current federal law. The Founders
relied on good character and the threat of public disgrace to rein in
high public officials. Unfortunately, those moral guardrails are
sometimes insufficient. Even if Trump is beyond reach today, for the
future, we need to strengthen those guardrails with more specific
laws and remedies.
starters, Congress should spell out what emoluments are; spell out
what constitutes illegally cooperating with foreign governments;
spell out what truthful cooperation with Congress and investigators
requires. Legislation should enhance deterrence by making
presidents subject to fines and prison for violating these clear
rules, if not during the term of office, then afterwards. While
the President is in office, legislation should prescribe expeditious
court consideration of inter-branch disputes, so that courts can
issue orders promptly for real-time corrective compliance.
need a strong and effective chief executive, but we also need a
with aid, additions, and edits by David