What To Do About Donald
Considering his actions over the past four years, one can only imagine what President Trump must have been like as a young boy attending elementary school. Surely, he continually disrupted his class, calling attention to himself in any way he could. He was undoubtedly also disrespectful to his teachers and offered excuses why he had not done his homework, careful always to place the blame on others. In addition, he must have belittled the girls, bullied those boys who were smaller than him and bragged about how rich his father was. In art class, he would have spilled paint on the drawings of his classmates and made sure that everyone suffered when he didn’t get what he wanted. I have little doubt that his mother must have asked his father countless times what they were going to do about Donald before they finally agreed to send him away to military school. Now Joe Biden is faced with that same dilemma.
Rightly or wrongly, our nation has seemingly embraced the notion, propounded in a Department of Justice memorandum, that a sitting president cannot be legally charged with criminal behavior taken either before or during his/her term in office. At the same time, there has been a long tradition in American politics that incoming presidents don’t criticize or pursue legal actions against their predecessors, a tradition that distinguishes the United States from the vast majority of other nations. How can these principles be reconciled with the basic tenet embraced by our nation’s founders that “no one is above the law?” Moreover, if former presidents are never pursued legally, irrespective of the quality and quantity of their misdeeds, doesn’t that encourage bad behavior by future presidents and wouldn’t that place our nation on a path to authoritarianism?
President-elect Biden campaigned on bringing the nation back together and his ambitious agenda will require him to work closely with Republican legislators and governors. Thus, like President Obama, he will try to resist calls to commence legal actions against his predecessor for a litany of legal infractions prior to and during his term in office. In fact, the President-elect has already announced that he is disinclined to pursue any legal action against President Trump and is probably praying that Trump pardons himself or arranges for Vice President Pence to do so. This would relieve him of a problem he would like to simply go away.
It would be easy for President-elect Biden to overlook the errors, mistakes and legal infractions of his predecessor if Trump had been like other past presidents. The problem is that President Trump’s behavior has been far beyond simply aberrant. Trump has violated governing traditions that have been in effect for generations, some of which even date back to our nation’s founding. To name just a few: he has politicized the Department of Justice; he has terminated one departmental Inspector General after another; he has obstructed Congress’ oversight of the federal government’s Executive Branch and has filled key cabinet positions without bothering to submit his nominees for Senate confirmation. On top of that, he has abused his presidential pardon power, bypassing the normal vetting procedure in the Department of Justice and using it to reward those who have protected him from his own misdeeds. Unlike past presidents, he has also declined to divorce himself from his business interests and has exercised his governmental authority to enhance himself economically.
All of our past presidents have left their successors with a host of unresolved problems. In President Trump’s case, he’s leaving President-elect Biden with an on-going war in Afghanistan, North Korea’s unchecked nuclear ambitions, continuing devastation and a refugee crisis in Syria, unrest throughout the Middle East and continuing poverty and hunger in our country.
But unlike his predecessors, President Trump is also leaving his successor with a host of on-going problems which he has made much worse. These include (a) racism and bigotry in this country which has been elevated by Trump’s divisive rhetoric, (b) income and wealth inequality in this country which has been heightened by ill-advised tax legislation favoring corporations and wealthy individuals, (c) the coronavirus pandemic which his inattention and misguided actions have been allowed to grow far faster and more devastating than in any other country, (d) an acrimonious relationship with Iran which has been aggravated by his causing the U.S. to withdraw from the JCPOA and his rewarding North Korea for having developed its own nuclear weapons, (e) a strained relationship with China that has been poisoned through his foolish pursuit of a bilateral trade war, (f) efforts to slow climate change which have been undermined by his withdrawal from the Paris Climate Accord and the jettisoning of pollution restriction imposed by President Obama, (g) our nation’s deteriorating immigration situation which has been made more acute by his destructive family separation policies, and (h) Russia’s hostile behavior which he has encouraged by his withdrawal of our forces from Syria and his unilateral withdrawal from the Open Skies Treaty that provided Russia’s neighbors with advance warning of its impending acts of aggression.
There are two other lingering problems which his appointments to the Supreme Court have made worse. The first relates to a woman’s right to obtain an abortion and the second deals with the fate of the Affordable Care Act. From the very beginning of his campaign for the presidency, he proclaimed that his appointees to the Supreme Court would overturn Roe v. Wade and would declare the ACA unconstitutional. If the three justices which he appointed act as advertised, Biden will have to find a way to overcome two new healthcare crises.
Trump’s legacy of destruction also includes two new problems which he has created. Perhaps the most obvious is that he took the growing and vibrant national economy left him by the Obama administration and sent it into a tailspin by his mishandling of the coronavirus pandemic. This, in turn, has led to a multi-trillion-dollar increase in the nation’s fiscal deficit, something his party likes to use as an excuse for cutting social welfare programs. He has also depleted the federal government of its most competent civil servants by his termination of individuals who have either have had the audacity to contradict him or have displayed an unwillingness to adhere to his agenda which they believe is not in the best interest of the nation. This includes highly qualified people like Christopher Krebs who made the 2020 election among the most secure in the nation’s history, something the courts are now validating in their consideration of the roughly 50 frivolous legal actions brought by the Trump Campaign challenging its fairness.
Also among his parting gifts to his successor has been his efforts to undermine the legitimacy of President-elect Biden’s election. According to recent polling data, 77% of Republicans and over 30% of Americans now harbor the belief that Biden’s election was attained by fraud. His post-election theatrics have also caused a three-week delay in the transition of government, heightening the danger that Biden will not be prepared for the crises he will be facing when he takes the oath of office on January 20th. These actions will make it even more difficult for our new president to dig the nation out of the hole in which Trump is leaving it.
Described above are simply the actions that President Trump has taken and is currently taking. If current reports are accurate, he is now also planning to embark on a new media career through which he will continue to serve as the voice of conservatives (which is perhaps the nicest way I can describe his most fervent followers). From this vantage point he will not only be able to reach 60 million Americans who receive his daily tweets, but many millions more with hour long rants about the perceived failings of the new administration. Like his “birther” campaign during the Obama presidency, this will be to lay the groundwork for a new run for the presidency in 2024. For all of these reasons, it would be quite understandable for President-elect Biden to break with tradition and encourage criminal action against his predecessor for his repeated violations of the Constitution, laws and political norms, all to the detriment of the nation.
While none of the foregoing Trump actions violate any existing law, they will make President-elect Biden’s job far more difficult and will undoubtedly heighten popular demands that Trump be called to account for those of his actions that were illegal. The question remains whether it is even advisable for the Biden administration to seek retribution against President Trump and what actions are even available to it.
Let’s start with the obvious observation that the decision as to whether action should be taken against President Trump is not wholly in the hands of President-elect Biden. There are state law enforcement officials, such as Manhattan District Attorney Cyrus Vance, Jr. and New York Attorney General Letitia James, who are already pursuing state-based criminal and civil claims against Trump. Then there are civil plaintiffs, such as E. Jean Carroll and a handful of former models who are currently pursuing legal damage claims against Trump. There is also the possibility that some entrepreneurial-minded class action attorney might bring an action against President Trump on behalf of many thousands of Americans who relied to their detriment on Trump’s admittedly false assertions that the coronavirus was a hoax and of no threat to Americans. These and similar matters are likely to be pursued irrespective of the President-elect’s inclination not to seek punishment of Trump.
There are also many Democrats in the House of Representatives who would like to commence investigations into many of Trump’s activities stymying their prior investigative attempts. Documents that were previously withheld and witnesses who declined to appear for questioning might now be available to them. Considering the many dismissive and insulting remarks Trump made about their prior efforts, some House Committee Chairs may now be bent on exposing Trump’s dubious, if not illegal, actions. This would only be fair-play as the House Republicans held hearings for three years on Secretary Clinton’s actions surrounding the attack on our nation’s consulate in Benghazi. Neither President-elect Biden nor Speaker Pelosi would be able to prevent this from happening.
Criminal actions by the Department of Justice against the out-going president would depend upon whether he had been granted a pardon and the scope of the pardon. If Trump chooses to pardon himself there would be a question of the validity of that pardon and I suspect that, even with three justices on the Supreme Court appointed by him, the Court would likely deem it a nullity. A pardon granted by Vice-President Pence, on the other hand, would likely be upheld especially considering that President Ford’s pardon of Nixon was never challenged. Pardons however, would not preclude civil actions by the Department of Justice or the various U.S. Attorneys and might include actions to recovery the $72 million ($100 million with interest) questionable tax refund that Trump received seven years ago which has never been resolved. Such actions might also include claims for monies received from foreign nationals who stayed at various Trump-owned properties in violation of the emoluments clause of the Constitution. While actions to recover relatively small amounts in civil actions would be viewed as petty, a well-documented claim seeking to recover $100 million could not be viewed as an act of petty vengeance.
As noted above, President-elect Biden is currently disinclined to have the Department of Justice assert any criminal claims against Trump as that would likely interfere with his effort to achieve badly needed legislation, including legislation aimed at getting the nation safely through the coronavirus pandemic. Of course, if he finds that Senate Republicans are not being cooperative and that Trump is continuing to make his life miserable (a high probability considering the magnitude of Trump’s own appetite for revenge), Biden may simply remain silent on the subject of legal action against Trump and allow the Department of Justice to proceed as it chooses. It is highly unlikely that Biden will either directly or indirectly (via tweets or statements to the press a la Trump) encourage legal action against his predecessor. That would simply replicate Trump’s actions in politicizing law enforcement, a practice that should be forever discarded.
For the most part, initiating legal action against a past president is bad policy as it would only heighten animosity between the political parties, making governance in a democracy close to impossible. In addition, many of Trump’s misdeeds as president are not worthy of pursuit, such as his constant lies and misrepresentations. Others, such as his abuses of power (like politicizing the courts and the Departments of Justice, Homeland Security and Health and Human Services) are not crimes even if they could be considered impeachable offenses. Those most worthy of prosecution involve acts of obstruction of justice as they undermine the operation of the federal government and breed division and dissent. Criminal proceedings targeting those actions would not only be justified, but could be deemed to outweigh the considerations for not seeking redress.
Notwithstanding his reticence to move against Trump, Biden is going to face a great deal of pressure from within his own party to make Trump accountable for his misdeeds. Biden and Obama had to deal with this same issue when pressure mounted to pursue officials within the Bush administration for the invasion of Iraq under manufactured pretenses and the illegal detention and torture of persons captured in the Iraq and Afghanistan wars. Ultimately, they dealt with those issues by exposing the facts and not by pursuing legal action, knowing that factual disclosure through legal actions might be deferred for years.
It’s not that the Republican National Committee, or even Republican legislators, would particularly mind Trump’s being sidelined by an onslaught of criminal and civil litigation as he poses a long-term threat to their party as well as to the nation. Nevertheless, they would likely provide vocal opposition to any such action in an effort to motivate their political base which greatly admires Trump and they certainly wouldn’t want to be viewed as having participated in Trump’s political demise. To that end, they might find it useful to simply bait the Democrats into taking legal action against Trump by frustrating Biden’s efforts to enact legislation in support of his agenda.
It already seems highly unlikely that President-elect Biden is going to get any cooperation from Senate Republicans. This can be seen from the fact that Mitch McConnell is still balking at passing significant economic relief legislation even though prior federal aid to individuals and businesses is about to expire or run out. The lack of faith that any further help will emanate from the federal government is already evident in the decisions of many state governors to devise their own relief packages while cutting other government services. A second clue is the rush of a handful of Senate Republicans to criticize Biden’s choices for filling key government positions notwithstanding their substantial prior experience and unblemished records of achievement. These actions are to be contrasted with their total silence with respect to Trump’s efforts to overturn the elections in a handful of states without presenting any evidence supporting his claims of voter fraud. In short, Biden’s vision of bipartisan support for his legislative agenda is optimistic at best, and at worst just another example of alternative reality, no less specious than Trump’s claim that he won the election.
Some political commentators have expressed caution in asserting legal claims against Trump. They contend that it will stiffen political opposition against the new administration and may not achieve very much as the legal process is so slow that any such legal actions might not even be resolved during Trump’s lifetime. Just think of how long it has already taken for state law enforcement officials and House Democrats to get access to Trump’s tax returns. Moreover, during the course of these proceedings, law enforcement officials will be bound to silence over what they have unearthed until they actually produce evidence in a trial. Other commentators have expressed the view that some of Trump’s misdeeds are so detrimental to the proper functioning of the federal government that a failure to seek redress will forever hamper its ability to operate fairly and efficiently.
The questions which the Biden administration must answer is what is it trying to accomplish and how can it best achieve its desired goals. Perhaps the most important goal is to send a clear message that misbehavior by a president will not be allowed to go unpunished. A related goal is to emphasize the importance that the president is subject to the oversight of the Congress. These goals can be achieved by bringing an action against Trump based upon his efforts to obstruct the Mueller investigation as well as the House impeachment investigation. While this claim is likely to engender cries of political revenge (especially since the Senate, in part, has already dealt with this issue), it’s an important issue that should be pursued. It will also carry the added advantage of showing that the trial in the Senate was a total sham and may serve as an albatross around the necks of Senate Republicans seeking re-election.
Perhaps an even more important objective would be to undermine Trump in the eyes of his own supporters who are likely to view any legal action against him as simply an act of political retribution. This undertaking is necessary if our new president is going to have any chance of reuniting the nation because the likelihood is overwhelming that Trump will continue with his divisive tactics after he leaves office. This objective could best and most quickly be achieved through a single Congressional investigation. It would likely prove counter-productive to initiate investigations on a multitude of issues as satisfying as that prospect might appear. This single investigation should focus on the only issue that is likely to alienate his supporters; namely, Trump’s close financial ties with Russia. This is one of the issues that the Mueller investigation was supposed to explore, but never did. There is ample reason for believing that the loans that have enabled Trump to rebuild his real estate holdings following his casino bankruptcies were underwritten by Russian oligarchs and extended through Deutsche Bank. The Deutsche Bank records are already subject to subpoena and should be available shortly. They could explain why Trump has been so deferential to Putin and has taken actions that benefit Russia without receiving anything in return. Many of his supporters justifiably view Russia as a source of evil and proving that Trump is beholden to the Russians will likely turn them away from him.
While Republican legislators will stand behind Trump on most issues because he currently controls their political base, they are likely to sit quietly if Trump is attacked on an issue that will inflame his supporters. Therefore, if Congressional Democrats are able to tie Trump financially to the Russians, it will likely destroy him politically, if not financially, and this could be accomplished far more quickly than a protracted criminal proceeding. This strategy also would also be unaffected by any presidential pardon Trump might grant himself or convince Vice President Pence to bestow upon him. In fact, a pardon would only serve to deprive him of his Fifth Amendment rights and compel him to testify under oath about his dealings with the Russians.
Although the incoming Biden administration may not be able to send Donald off to military school, it may still be able to discipline him in other ways.