What Would Prosecuting Trump Actually Achieve?

Trump seen from the back as he walks across the White House lawn raising his left fist
President Donald Trump departs the White House on Oct. 30. Andrew Caballero-Reynolds/AFP via Getty Images

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For an administration that has broken so many rules, leaving office isn’t as simple as packing up a few closets. Leaving the White House makes President Donald Trump much more vulnerable to prosecution, which, up until now, he’s managed to avoid. But the question I keep asking myself is what should accountability look like, for Trump and the executive branch? As Slate’s Dahlia Lithwick put it on Thursday’s episode of What Next, “there’s an awful lot of Democrats who feel as though this doesn’t end well unless somebody is marched off in handcuffs in an orange jumpsuit. … And I think there is another strand of this that says, not unreasonably, more than 70 million people think that Donald Trump did nothing wrong, and if the Biden Justice Department starts gunning for Trump or his confederates the first week, the country splits apart.” Lithwick and I discussed how the Justice Department could prosecute Trump, what that could and could not accomplish, and whether Trump could pardon himself. A portion of our conversation is transcribed below, edited for length and clarity.

Mary Harris: There are ongoing investigations into the president, investigations by people like Cy Vance in New York and Tish James, the attorney general. And then there’s outstanding things from the Mueller report, like perhaps obstruction of justice could be prosecuted once the president leaves office. What do you see as the most realistic paths for some kind of prosecution?

Dahlia Lithwick: I think it’s increasingly unlikely that there’s a lot that’s going to come out of the Mueller report, simply because we just saw the House step back this week. The Supreme Court was supposed to hear argument on the House getting unredacted grand jury information, and we’ve seen that withdrawn. So it seems as though even congressional Democrats are not going to spend a lot of time mining the Mueller report.

I do think that the stuff that’s still existent, in addition to the New York Times investigation about tax and mortgage fraud that happened pre-presidency by Trump and the Trump Organization, the election transactions in which there was maybe campaign finance fraud, claims of tax fraud, the ProPublica allegations about was there fraud around the inauguration committee, Mary Trump’s allegations of fraud, some of these sexual assault incidents where the statute of limitations has not precluded them—there’s an immense amount of other stuff out there.

When you spool it out, it’s just so massive. And you haven’t even talked about the stuff we just saw recently, like the president doing election work from the White House, which is a violation of the Hatch Act.

There’s a whole mountain of things you could pick over that are absolutely ripe for investigation and possibly prosecution.

What I keep getting stuck on is that you can’t do truth and reconciliation without truth, without some first principles around what happened and what didn’t happen. And so when I think about a reckoning, in some ways I’m almost more interested in what if we reinstated robust inspectors general, right after Trump has fired all of them and after he has kneecapped the ability of agencies to police themselves and to report on what really happened? Would it be a good start so that we could see what had actually happened at DHS, what had actually happened at Justice? Would that matter? And I don’t know.

But I guess it’s part of my larger plea to broaden the scope of this, beyond criminal liability for Donald Trump himself, and to think in terms of a much, much bigger toolkit of how could we get to truth. Because I think if we do it backward, if we say we don’t care, that the country has no shared understanding of truth around anything, “Obama put kids in cages,” “Everybody uses the White House for their campaign stunts”—I think if we could go in the other direction and try to arrive at a shared understanding of where the line is between what is lawful and unlawful, then maybe we back into some kind of shared truth and reconciliation.

I’m hearing myself say it and I want to, like, punch myself because it seems so utterly fanciful that we could ever arrive at agreed-upon truths.

Can we get to that shared truth without a massive investigation? I think the massive investigation is what forces the hands of people who have been stubbornly, partisanly clinging to the idea that what just happened was OK.

Look, any criminal prosecution doesn’t start with the crime. Let’s investigate. We don’t start at the presumption that these 17 crimes happened and we’re going to devote the next four years to charging them and prosecuting them and eventually putting Trump in jail for them, but we start with what the hell just happened?

I think a lot of the things that you might investigate the president for, things he did in office, might seem bureaucratic and disconnected from real people’s lives. But I look at an investigation into Trump University, and I’m like, That might actually be something that resonates in a broader way. It doesn’t have anything to do necessarily with a federal investigation. But if the goal is to present evidence that we can maybe find some agreement on, maybe we need to be thinking about different kinds of investigations.

Right. The other thing I would put in that bucket is the Trump Foundation. That was an inordinately successful holy cow, they’re saying this is a charity! It apparently did no charity. It apparently was passing through money back to the campaign. Very much like Trump University, it’s just a side grift, but it looks really bad. And it doesn’t go to the heart of these inchoate questions about, you know, what is the emoluments clause, and did the president divest himself of his interest in his business, and what does it mean that Ivanka got these trademarks? That really feels like you’re going after the Trumps for being successful, right? That’s the narrative: Democrats just want to penalize Trump for being a great businessman. And I think you’re right. Whether it’s Trump University or the foundation that gets shut down, I think that those are not investigations of Trump for being a great businessman. Those are clearly long cons and Ponzi schemes that, when they are revealed to be such, you don’t have a massive public outcry from Trump supporters saying this was a witch hunt, I don’t think. You hear people say, like, yeah, that’s probably really bad to take money from old people—

And real, regular people were impacted.

Yeah. So maybe there’s a way to start from these sideways reforms.

There are so many changes that have to happen not through prosecution but just at the bureaucratic level, so that the presidency is protected, so that it is not as open to graft as it seems to be at the moment. I wonder if there are a few things you’d point out as something that’s a norm now that you’d rather see calcified into law.

I would just say reverse-engineer. What do you do when you have all these acting heads who are not Senate-confirmed and who can apparently do whatever they want with impunity? How do we fix that? How do we fix the Hatch Act so that if Trump uses the White House itself as a campaign event, there are real consequences to that? So putting teeth into the Hatch Act so that the office of the presidency can never again be weaponized as part of a campaign.

I think it’s almost seeing in the breach, and you can actually even start with the self-dealing and the emoluments and the corruption stuff. You can look at the campaign finance laws that seem not to have been robust enough to tag Donald Trump for campaign finance violations. It’s going back and seeing wherever there was a soft spot or a weakness and bolstering it. But for me, the real revelation of the last four years is … a lot of the things that we thought were law are just norms, and the norms are too soft.

Could this whole conversation about prosecuting Trump just be moot? Could he pardon himself in some kind of grand way on his way out the door?

It’s never been done. I think there’s a very zealous and sprightly debate in the constitutional law, in the constitutional community, about whether he could try and what that would mean.

And he could only pardon himself for federal crimes.

Right. Pardons don’t extend to state crimes.

Certainly I don’t think there’s anything that he wouldn’t try. I wouldn’t take anything off the table. Whether courts would eventually say that’s permissible or not, I cannot hazard anymore. But I think we should assume that anything that has been floated, including a Pence pardon at the last minute, sure, it could happen. Would it be lawful? I don’t know. Maybe?

There’s two stories to tell here. One is this is all about Trump. And the other is, in my view, this is all about all the people that enabled Trump, and to make it about Trump alone is to suggest that Trump was the pathology. He’s gone, and now we’re all OK. It is time to knit the country back together. It ignores the Bill Barrs and the Chad Wolfs and the Kellyanne Conways and the Jared Kushners and all the other people who colluded to make this happen.

To think about this purely in terms of criminal liability for Trump and three people around him is to miss the fact that there were dozens, maybe more, many dozens of people, who put these things into effect. And I’m not saying that the solution for them is criminal liability either. But the peril of focusing in on Trump himself is that it’s not clear to me at all that Trump himself was the problem, any more than it was clear to me that Nixon himself was the problem. The problem was all the people who enabled, and those people are still around. And so I hesitate to say that if Trump goes away and lives out his days on a golf course somewhere, muttering about how unfair it all was, that we have solved the larger problem of what it is to weaponize the entire executive branch against the law itself. I think the existential error is to think that the problem goes away with Trump.

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