Should a Biden DOJ Investigate and Prosecute Trump?

A debate.

Trump squints and frowns in front of a White House seal.
President Donald Trump during a press briefing at the White House on Wednesday. Brendan Smialowski/Getty Images

The 2020 Democratic National Convention has featured speaker after speaker describing President Donald Trump’s misdeeds. Ordinary people and politicians including former President Barack Obama have denounced Trump’s self-dealing, his family separation policies, his deployment of military troops on peaceful protesters, and his attacks on the integrity of both the 2016 and 2020 elections as violations of the law and the Constitution. (It wasn’t so long ago, one may recall, that Trump was impeached for his role in the Russian election-meddling scandal and his obstruction of special counsel Robert Mueller’s investigation into it.)

But the Democrats this week haven’t yet said that a President Joe Biden should or will investigate and prosecute Trump if the former vice president wins the November election. New York Times op-ed columnist Michelle Goldberg, though, did make that argument recently. I interviewed Goldberg—a former Slate colleague—on my podcast The Gist on Wednesday to discuss the convention, the column, and the merits and dangers of such an investigation or prosecution. A portion of our conversation is transcribed below; it has been edited and condensed for length and clarity.

Mike Pesca: In contemplating whether to put out this column, how much did you marshal the case against Donald Trump, and argue for holding him to account legally, because that’s what the law requires? And to what extent did you calculate, Is this the right time to say it? Is this the message we should be giving? I have a big platform. Is this where I want the conversation to be going? Because a lot of the criticism is essentially, “Yeah, yeah, yeah, but don’t say it now.”

Michelle Goldberg: I actually think people need to say it now, because I think you need to get at least some sort of commitments in that area, right? I mean, I don’t think that it should be a centerpiece of the convention. I don’t think it should be a chant at Joe Biden events, if there were public Joe Biden events. But I do think there’s a reason that progressives are starting to put out these plans right now. There’s a reason that the Center for American Progress, which is very close to the Democratic Party, has put this out. There’s a reason that Protect Democracy is starting to do all this work.

Partly, it’s because when and if a Joe Biden administration starts, it’s going to be mired in so many interlocking crises that there are going to be a lot of arguments, some of them persuasive, not to do this. Just as there were arguments not to do this with George W. Bush when Barack Obama came into office. And those arguments made sense at the time. He [was] facing an economic crisis; this is all hands on deck. The bandwidth of the administration is limited. He wants to move the country forward. He sort of ran on this post-partisan, bringing the country together [message].

It’s easy for me to see why they felt like those arguments were persuasive at the time. But you look at the result: It created even more of a culture of impunity in the Republican Party. And so, it created a culture, I think, where the people who are now enacting illegal schemes on Trump’s behalf probably feel very little compunction about what this might mean for their future careers. So I think it’s just very, very important, both for justice, and also for some attempt at creating a baseline public understanding of what we’ve been through and what we continue to be going through, but also as an example for the next proto-authoritarian president.

And this isn’t just something that the Biden administration would be spearheading, and in some sense, it might not be something that the Biden administration is spearheading at all. It could easily, I think—maybe [it] should take the form of an outside commission. It could be a special committee in Congress. I know that there are people in the House who are starting to think about what this could look like. And then there’s a bunch of investigations that are going on at the state level that just need to be allowed to proceed. But I do think that there should be a kind of baseline understanding in the party that there certainly can’t be pardons and the next attorney general might need to—for example that this Republican-led Senate committee made criminal referrals for many people close to Donald Trump and the Justice Department never, apparently, took them up. I think there should be an expectation for the next Justice Department, not that it’s going to prosecute, but that it’s going to investigate.

Yeah. I do think, for our democracy, it’s in the abstract bad for each presidential election to be somewhat of a referendum on whether to indict the previous president. If we have successive presidencies and they’re engaged in the project of locking up the last one, we’re never going to function.

I think that’s right, but right now, we sort of are holding up these norms single-handedly. So the Republican administrations come in and do prosecute their predecessors on totally specious bullshit charges, and then Democrats come in and say, “Well, we have to uphold these norms, so we’re not going to prosecute or investigate actual systemic crimes.” And there’s no reason to believe that is going to be reciprocated in the next Republican administration.

I actually think there is truth to that, [but] I don’t think that’s the most compelling argument. I think, in the specific, there are exceptions to the rules of not prosecuting the predecessor, and I think Donald Trump very well might be the exception. We talk about norms, but norms are there when laws aren’t, and when laws are there and they’re being violated, we can’t shirk our responsibility.

But you said the important thing to do about it now is to get commitments. I understand that; that is a good strategy. On the other hand, by emphasizing that, it might imperil the entire project of getting elected. So let’s say Joe Biden were asked this point-blank: “Would you prosecute Donald Trump, if elected?” What’s his ideal answer?

Well, he has been asked it point-blank. And he sort of said, I think it would be very, very bad for democracy, but I wouldn’t stand in the way if the Justice Department decided to pursue something. I would’ve liked him to have been maybe a little bit less negative about the whole thing, but I think I don’t want him to say, “I’m going to direct the Justice Department to do this.” To me, the important thing is him saying, “I won’t stop the Justice Department from doing this.”

I think all of that can be true, but I do worry a little bit about getting that out there, because Republicans need something to run on, and I don’t think stronger showerheads are going to be it. If the whole thing becomes a referendum on “Do elections become prosecutions of the last guy?” maybe that will give some wind in the Republican sails.

Yeah, but Mike, I don’t have the power to make the election a referendum on my ideas. You know, I don’t think that there’s any reason to think this is going to rise that far in public discussion any more than this election is going to be a referendum on “Do we resurrect the Consumer Financial Protection Bureau?” Right? These are questions that I think don’t capture the attention of ordinary voters evaluating the economy and the response to COVID, but they’re going to be very important in terms of staffing up a new administration. Again, I don’t think that me putting this out there—I wish I had the power to set the agenda, but I obviously don’t.

I know you don’t have the sole power to set the agenda, but if this becomes a big talking point, it could be bad for the Democrats, but that’s a side point. My main point is, I think that you and I have a little bit of a difference in that I’m very, very, very concerned about the precedent. Perhaps even as concerned as whatever it was that Trump did that deserves prosecution. Part of my concern is that when people cite that we should have prosecuted George W. Bush, I actually disagree with that. Every president probably violates the laws.

No, no, no, I don’t think we should have prosecuted George W. Bush. I think there should have been something that Patrick Leahy and Sheldon Whitehouse proposed, some sort of truth commission, just to kind of get the truth out there about torture, about the origins of the Iraq war. I think that there should have been a public airing of all of that, which is something that’s very different than a prosecution. I don’t think there were really grounds to prosecute George W. Bush.

But a lot of people do, and once those spirits are released … I interviewed Elizabeth Holtzman. You probably have too, and she got a lot of attention because she introduced articles of impeachment against Richard Nixon and advocated that against Trump. And yet, if you look at her record, she introduced or favored articles of impeachment of every Republican president from Nixon to the present.

Even Gerald Ford?

I’ll have to look back at that. Every elected Republican president, I should say. [Ed. note: There was no formal impeachment investigation into Ford during his presidency.]

Well, I would say that’s different than the argument that I’m making. Part of the problem is that there have been a lot of crimes committed by a lot of Republican presidents. But I also think that Trump has been qualitatively and quantitatively different. And there has to be a way to underline that, to take this episode—if we’re lucky enough to be able to—and sort of cauterize it. To look at it. As much as I think that Trump, in a lot of ways, is a product of trends that have been going on in the Republican Party and the conservative movement for a long time, I also think that there should be a way to mark if we can—you know, inshallah—these four years as abhorrent and turn Trumpism into an epithet for the foreseeable future.

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