I would like to pose a question for discussion about which I am genuinely torn but I will warn you, if you cannot discuss this question without attacking one another’s character, I will simply delete the entire post with the comment train and move on. I spent some time deleting comments this morning and it is just too exhausting.
The question is this: should the Atty. Gen. of the United
States in the Biden administration investigate the behavior of Donald Trump
while he was in office and if, as I suspect, he or she finds clear evidence of
violations of law should charges be brought against Trump?
Why am I torn? Because the tradition of a peaceful transfer
of presidential authority is extraordinarily valuable. It is now under violent
assault by Republicans and, alas, by tens of millions of Americans as well.
Once that tradition is violated, I do not think it can be reestablished. At
some time in the future, perhaps in only four years, Republicans will retake
the presidency and if Trump has been brought to justice by the Biden Atty.
Gen., it is an absolute certainty that the next Republican president will try
to do the same to Biden. And then we have a Banana Republic.
I do not think these considerations weigh at all against
Attorneys General bringing charges against Trump and his company for violations
of state law.
One might argue that we already live in a Banana Republic
and have done so for the past 70 years. I am quite sympathetic to that view.
That is why I am torn.
Fiat Justitia Ruat Coelum?
38 comments:
Any moral/political question has three facets: the rights involved, the good involved and the consequences- it is a good thing to investigate him because Trump was not President in any tangible sense; rather he was a vandal who bent the office to his personal whims and advantage- we can not let Trump set a precedent- of course the Republicans will use this warped and cold logic against Biden for all they stand for his raw power and mayhem- plus we must strike first before his next step aiming toward retaking the White House in 2024 and being the King Maker in the GOP. He is so much worse than any unconventional means of resisting him that we have no practical and moral resort but to prosecute him- things won't revert to 'normal' that is the tragedy of Donald J Trump won't be over until he is punished- I'd say let Vance and the AG of NY do the work for us
The French are prosecuting ex-President Sarkozy for violating campaign finance laws with a donation from Libya (!) - see on the FT site https://www.ft.com/content/cb75844e-d345-4daa-b68d-6bdd471a0e2b - and that has not plunged the country into turmoil. On the other side of the Apls, I think ex-Prime Minister Berlusconi of Italy has been prosecuted countless times.
Of course France is not the US, and IIRC it was fear of prosecution after leaving office that drove Caesar to lead his army over the Rubicon.
On the issue of a revenge prosecution of Biden - maybe they will anyway?
More to the point: the Republicans view politics as war- the Democrats ought to do the same- nothing will stop the GOP until they are hobbled and waylaid- this is called brinksmanship- besiege the besiegers you might say- just as Rome did to Carthage- utterly dsetroy them politically so they can't be rebuilt
I think the answer to your question is No- the Biden administration should not prosecute the former President. For the reasons you worry about.
I concur with Jerry Brown. Also, being President of the United States more or less inevitably leads to criminal activity while in office - it's part of the job. Ford's pardon of Nixon was the right thing to do; and Biden should pardon Trump if the USAG moves forward with an investigation. Americans elected Trump knowing who and what he was and what he was going to do; that's on the populace - we made our bed, we slept in it, and we need to work on building a new bed, not dry-cleaning the dirty sheets.
The problem is that we are likely here because of not prosecuting. In 1968 Nixon conspired with the South Vietnamese government to sabotage the peace talks. Johnson knew about it and kept it quiet because he believed it would be to disruptive to expose it. Hence we got the poison of the Nixon presidency. Ford pardoned Nixon. Bush Pardoned the Iran contra folks. Obama moved on. Rinse and repeat.
Moving on hasn't worked and has just encouraged more crime. The corruption in the Trump Administration is so open and egregious that we don't prosecute at our peril. The right in this country will keep pushing until it gets its authoritarian regime if it isn't crushed. We will become a banana republic unless the criminal activity is exposed and prosecuted.
Roughly one-third of the nation is under a spell. This makes for an extremely dangerous situation--one so dangerous, I would say, that it trumps all other considerations. I don't know how to break that spell. However, I worry that if a Biden DOJ were to treat Trump and his cronies as off-limits, the 1/3 would be allowed, unchallenged, to continue to labor under the spell. Investigations and prosecutions don't ensure that the spell will be broken for any sizable number of people, but it's possible that the sight of a humiliated and demystified Trump & Co might have a salutary effect upon at least some of the people.
Moreover, consider the message it would send if Trump & Co were left unencumbered by legal consequences for their illegal actions: if you're rich and powerful, you don't have to suffer the consequences of outrageously criminal and dangerous acts. You can even engage in a conspiracy to destroy the functioning of the post office for the purposes of undermining the vote. I understand that the rich and powerful always have an advantage in court. But do we need yet more instances of that sad fact? To what extent would electing not to prosecute Trump and his fellow criminals simply deepen the cynicism that already seems to plague the electorate?
Reaching disaffected voters should be a top priority of Democrats. How would that effort be undermined by letting off Trumpian criminals? It's clear to me that a sense of justice matters to large portions of the population. I don't see how we'll be able to convince the young, in particular, that it's worth getting involved in the political process if the Democrats won't even try to uphold a sense of justice by prosecuting the Trumpian criminals who so richly deserve it.
Please no precedents. But this is a question that shouldn't really be asked until after January 20th. If President Trump holds out for a much longer period by not conceding, this will just add to his self-destruction.
A Spartan King once said, after reading how some Greek Hoplites died fighting a Tyrant of their city, that they deserved to die fighting a fire that could have smoldered out completely if left alone to itself.
I like the notion of Biden pardoning trump. Just imagine how that would rankle. rather than a prosecution--leave that to New York--I'd prefer to see a public commission set up to explore in a very transparent fashion the question, what's wrong with the American Constitution that it can permit a scoundrel president to behave in such an outrageous fashion?. But I'm afraid aaall is right. The opportunity to keep the barn door closed was lost in 1968. The horse has bolted. We've undergone a reactionary revolution rather than the left revolution some of us were hoping for. Who knows how it will play out?
Sigh. My problem is that I agree with every single one of the comments that has been made thus far. One thing is clear. If we are going to prosecute Trump, it should be for a crime that is clearly and unambiguously a crime, obviously so to anyone looking at it, and the evidence better be so overwhelming that the trial is a slamdunk. And yet, and yet…It really would be better if it could be done in the state of New York as a sideshow not interfering with the work of the new administration. Oh God, I so much want to see the whole family behind bars.
I tend to agree with Howie, although I really don't know. It seems that the Republicans will nominate aspiring authoritarians to be president for the next generation, and otherwise seem determined to cement their minority rule over this country. I don't think excusing Trump's criminality now would cajole them into being good-faith bargainers in the future. They will continue to shriek over the Mueller probe and Trump's impeachment and will continue to invent conspiracies as evidence of their persecution. I'm sure Lindsey Graham will come out saying that any criticism directed at him over his attempt to rig Georgia's election is merely a media-led, left-wing smear campaign. The Covid-19 inside-traders in the Senate have faced no repercussions or investigations. These kinds of brazen abuses of office can''t be tolerated. Alas, the fact that they are, or must be, in order to avoid some more extreme fall, suggests that we do already live in a Banana Republic.
I agree with you: Trump should not be prosecuted by the Feds for the reasons you gave. State/local prosecution is a different matter. An added political factor is the one that is said to concern Biden: prosecution would mean that Trump would continue to dominate the news cycle and put Biden's presidency on page two. We need to worry about more important things, e.g., the pandemic, the economy, and climate change.
If what should have happened had happened it would be a different story. Trump should have been convicted by the Senate, removed from office, and then prosecuted. The Senate didn't do the job the Constitution assigns to it. The drafters of the Constitution assumed that the Senate would be composed of the "leaders" of the State, i.e., the social elite, but they also assumed that these elites would have a high degree of integrity and patriotism. They could not have imagined a Mitch McConnell running the Senate.
Somehow your question reminded me of the following words from a recent essay by the British political philosopher John Gray at https://www.newstatesman.com/world/north-america/2020/11/struggle-america-s-soul
"Liberal legalism must be one of the most self-defeating ideologies ever to capture a large state. Elaborated by John Rawls and Ronald Dworkin in the Sixties and Seventies, it aimed to construct a regime of rights that would be insulated from the accidents of politics. The predictable result has been the politicisation of law. Rights do not dovetail into a harmonious system that judges can neutrally interpret. They often conflict with one another, and choices have to be made. Rule by judges is politics by other means and, when it concerns the demands of supposed fundamental rights, politics of a peculiarly radical kind."
Trump and the so called GOP are already employing extra legal weapons- I ask, what will stop them? They already will throw everything against us, including the proverbial kitchen sink, which is too clean for their malign purposes- we have to stop Trumpism and the GOP without Trump would have to regroup to say the least- if done right and not in the halfass way the impeachment was it will succeed
One point that hasn't been made is that allowing norm breaking without any consequences is really bad for the perserverence of the norm. When people study the behaviour of individuals in repeated engagements with each other (as in behavioural game theory, i.e. seeing how people actually behave rather than how theoretical fictions would behave), they find that tit-for-tat strategies targeted at norm violators increase the rate of compliance to a norm, and not lashing out at norm violators means the norm quickly disappears.
The thing with Trump is that his alleged crimes are more like not paying taxes and more or less petty corruption, for personal gain. Do they even compare with Bush/Cheney fabricating a war that killed who knows how many Iraqis and killed and maimed thousands of American soldiers and at what cost?
The Biden administration should just stay away from prosecuting Trump. Congress already tried to and we know how that ended up. And then the guy still got 72 million votes. Prosecuting Trump would risk ripping this country apart further- for no real gain. Biden should tell him that when he leaves he won't have to worry about actual prosecution. Just get him out of there ASAP.
R McD
Gray certainly has hit the soft spot of “legal liberalism” but what’s the alternative? At the end of the day, politics are involved because humans are involved. To say that legal rights cannot be totally insulated from the accidents of politics is not to say that they can’t be insulated in many, if not most, instances. Decisions of the Supreme Court in the areas of civil liberties and civil rights are good examples. If it were up to politics alone (and “non-insulated politics”) we’d still have school segregation.
The tragedy today is that the Supreme Court has become part of a Federalist Society cult. Politics has always been a part of the Court, but only a part. Today it’s just about everything. Consider Roe v. Wade, the most contentious decision of the last 50 years. The seven member majority was composed of three Nixon appointees (Blackmun, Berger, Powell); two Eisenhower appointees (Brennan and Stewart); a Roosevelt appointee (Douglas); and a Johnson appointee (Marshall). The dissenters were a Nixon appointee (Rhenquist) and a Kennedy appointee (White).
There have always been “liberal” and “conservative” members of the court, but few members were as doctrinaire as today’s Republican appointees. The one thing you couldn’t do when Roe was decided was predict the outcome of a case simply by tallying which president appointed the justices. Today, if you followed that system, you’d be right more often than wrong. The insulation has been greatly, if not totally, diminished. We need to get it back.
This link looks relevant to Biden's likely moves:
https://www.nbcnews.com/politics/justice-department/president-elect-biden-wary-trump-focused-investigations-sources-say-n1247959
A compromise suggestion - not to prosecute Trump or his family, but to go after his chief cronies - Bill Barr maybe? You would know who fits the bill better than me. Doing nothing at all is asking for a repeat of the show.
Also - are there any Democrats who merit attention here? Prosecuting them as well is an indication that the prosecution is not (purely) party political.
"...and not lashing out at norm violators means the norm quickly disappears."
Indeed! This is precisely what has happened over the past few decades.
Prosecuting Trump is the least important element so leave him to New York. What is essential is the prosecution of those in the various agencies and Departments for whatever crimes may have been committed. Senators, Representatives, Cabinet Secretaries, and others have been convicted and jailed without our becoming a banana republic. He can be an unindicted co-conspirator as far as the feds go and an inmate in NY. What needs to happen is a through airing of the corruption and crimes.
Back in the day we had a family friend who we regularly visited. During the 1956 campaign I asked her who she was voting for. She reared back and vehemently explained that she had voted for Harding in her first election and she had been so disgusted that she swore she would never vote again and she hadn't.
I assume a goodly number of the folks who voted for Trump did so out of ignorance. We know that papering things over doesn't work so yes, fīat jūstitia ruat cælum.
As Jerry Brown says:
"The thing with Trump is that his alleged crimes are more like not paying taxes and more or less petty corruption, for personal gain. Do they even compare with Bush/Cheney fabricating a war that killed who knows how many Iraqis and killed and maimed thousands of American soldiers and at what cost?"
Add opening a torture center at Guantanamo and there are plenty of reasons to consider Bush and Cheney as international war criminals. But just about all U.S. presidents post World War 2 have engaged in one or another international acts of aggression.
One might investigate Trump's role in the 2019 coup in Bolivia against Evo Morales too. He is also complicit in Israeli expansion against the Palestinian territories. Whether he pocketed some of the White House silverware does not concern me much.
Should the US Attorney General in the Biden administration investigate the behavior of Donald Trump while he was in office?
No.
But a special prosecutor should investigate the actions of Donald Trump and other involved parties.
Direct involvement of the attorney general would be deemed too politically biased.
The special prosecutor should have near-full independence, not the kind of hamstringing that we saw with the Russiagate investigation under Barr, Rosenstein, et al.
Should the actions of Donald Trump deemed criminal be prosecuted?
Yes.
Failure to prosecute produces a moral hazard that leads to such abominations as
- Mnuchin becoming US Treasury Secretary
- Bolton becoming National Security Advisor
- Haspel becoming CIA director
- GW Bush becoming best buds with "liberals" like Michelle Obama & Ellen DeGeneres
- Democrats cheering former Michigan Governor Rick Snyder's (Flint water poisoning) endorsement of Biden for president
- Rick Scott (ex-CEO of a major hospitals corporation that defrauded the government) becoming a governor then senator
The list is long ...
Yes, given the current domination of our political system by the Democrats-Republicans duopoly, starting down this route would absolutely guarantee that the next time the opposing party returned to the White House, they would return fire on the departing administration. (In fact, if the opposing party should control the House of Reps, they might not even wait. They would be even more likely to try to impeach the sitting president while he was still in office.)
The partisan fighting has been rising to the point that the parties are going investigate each other no matter what, whether real crimes appear to have been committed or not. We're probably not going to be able to keep that from occurring. So our primary focus should be on trying to reduce the likelihood of crimes being committed.
If more presidents and their subordinates had a real fear of the possiblity of prosecution and actual conviction, they would think twice, even three times, before engaging in acts that might carry even the whiff of criminality. It wouldn't be enough to induce all of them to act more ethically and within the bounds of the law, but it would probably go a long way toward getting many more of them to than currently do.
Unfortunately, US presidents are viewed by the judicial system and political class as too-big-to-prosecute (if nothing else, presidents know where many of the bodies are buried), so I don't see this happening any time soon.
Additionally, the pardon power granted by the Constitution needs some adjusting.
(1) Amendment to prohibit individuals convicted of certain crimes from being able to hold office. Otherwise, we can envision ex-presidents who have engaged in criminal acts threatening to run for office again.
(2) Amendment to prevent presidents from possibly being pardoned by successors who had been part of the accused presidents' administrations (a la Nixon-Ford).
(3) Amendment to clarify that presidents may not pardon family members or associates accused of crimes. (Perhaps pardons should be available on a case-by-case basis to family members and associates of presidents, but that pardon should not be held solely and absolutely by the president himself. In cases in which the president is personally related to the accused, there would need to be some sort of tribunal, independent of the president to the greatest extent possible, who should decide on the pardon.)
(4) Amendment to explicitly clarify that presidents may not pardon themselves for any acts under any circumstances.
David at 5;47 pm
I get your point. But I think Gray was pointing to the way resort to the courts was an attempt to circumvent politics, which has the longer term consequence that politics becomes more and more circumvented, with the yet further consequence that the citizenry become more and more politically irresponsible, with the further consequence that yet more is handed to the courts, etc. etc. Politics isn’t, maybe, just about who gets what, when, and how. It’s a training ground in responsible democratic politics?
Sorry to be so confused/confusing.
Only Americans will pose such a question. No one is above the law. Obviously, no exceptions. Anything less will undermine and ultimately destroy a very fragile system. A person breaks any law, it has to suffer the consequences.
By the way, it was wrong to pardon Nixon. We are living the consequences of such a misguided decision. Also, Presidential pardons need to be abolished. End of story.
That is...unless you want to destroy your country.
Following along with what RobertD points out about Sarkozy and Berlusconi, South Korea impeached President Park Geun-hye a few years back, and she was subsequently sentenced to 25 years in prison, where she remains. From the outside, their country does not seem to have collapsed as a result.
@Anonymous 8:27pm, the US government is constructed in such a way as to give a single person absolute authority to kill a single human being, or even hundreds of millions of human beings. (Two wrongs don't make a right, but) It seems only fitting that there be a commensurate power to save lives if there has been a miscarriage of justice or if there were extenuating circumstances that led to the crime but the justice system has failed to consider them.
Perhaps that power should be invested in a group of people rather than in the office of a single person at any one time. But that is a different matter than completely abolishing the pardon.
President Obama was a constitutional law professor. He was abundantly aware that US officials knew about, approved, ordered or perpetrated torture. There was also ample evidence that the intel justifying the Iraq invasion was fixed.
He chose to do nothing about it, saying that it was time put the past behind and move one.
Good choice or not?
The meta question is what decision criteria should be selected. And what are the criteria for making that choice of criteria
Have at, but it's turtles all the way down unless one stops at some assumption or set of assumptions.
And I am pretty sure based on allegations that any alleged wrongs committed by Donald Trump don't rise to that level. You know, like war crimes and crimes against humanity.
This is a terrific question because the arguments are so strong on both sides.
In my opinion the worst thing about Ford's pardon is that he issued it too early. A pardon is good for many reasons, but it could have come after all the charges were brought to light and debated in court. Let people see what crimes have been committed. Let them hear the testimony. Then show that it's not about vindictive punishment and pardon the man.
Ideally that would suffice to discredit Trump (and certainly would tie him up in court for a few years) while still avoiding the practice of locking up one's political opponents. And as behavior completely unlike his, it would at least startle his base.
It really depends on the alleged crime and the evidence that would or would not support it.
If they can actually bring hard evidence that the Trump family / cabal was engaged in serious crimes, a la treasonous conspiracy with Russia, criminal racketeering, etc., then by all means, let's make sure that justice is served and show that our leaders are not above the law.
But if this just means another witch hunt where we try to throw anything at Trump and see what sticks just because we can, to stick it to his supporters, and because we want to deflect from our own failings and try to delegitimize the Trump years, no. Practice what you preach.
In the latter case, it's time to, as they like to say now, "let that shit go", try to set a positive example and move forward toward some actual national uniting and healing. Show the Trump voters that those who voted on the other side and their representatives are not their enemy. If we can't do it now in the wake of mass tragedy, when will we do it? It's at least worth trying.
If the democrats do go after him for anything trivial, or not backed by solid evidence, it will just further piss off Trump's base, reinforce everything Trump has ever said about the democrats and the deep state, and set the stage well for Trump 2024, or President Don Jr.
One other thought that should not be ignored.
Investigation and prosecution do not guarantee that there will be a conviction, or that if there even is a conviction that there will be a penalty that hurts (unless one views prosecution in itself as punishment).
Two recent examples spring to mind.
Bridget Anne Kelly and Bill Baroni were convicted of conspiring to exact retribution against political enemies of NJ Gov Chris Christie in the Bridgegate scandal. Kelly and Baroni were sentenced to prison along with many hours of community service. (Bill Stepien, who was their supervisor and almost certainly involved, got of scot-free and has been a high-ranking Trump admin official; Christie himself, who was also almost certainly aware of the activities, ran for president and then tried to get a Trump admin appointment.) Kelly and Baroni appealed to the Supreme Court, who reversed their convictions.
Remember the Flint water crisis?
Thousands of residents of Flint, Michigan were poisoned by toxic levels of lead in the water system, after mismanagement of the water sourcing and water treatment by state-appointed financial managers. As of this past April, no high-ranking member of then-Governor Rick Snyder's administration has been convicted; and the statute of limitations may mean no one ever is, now that we are 6 years on. The General Motors plant in Flint had determined that the water was too corrosive for use in its auto manufacturing plant, and the Snyder admin was aware of this, yet they did not act to ensure the safety of the residents.
Then there are the countless cases of police officers who kill unarmed people—and then lie about the circumstances and write false reports describing the events—yet are almost never prosecuted (or, in the rare cases in which they are prosecuted, are acquitted).
I am inclined to say no prosecution by the Biden admin. Let the state attorneys general get him/them on tax fraud. Use the vehicle of a presidential commission to investigate crimes in office and recommend legislative fixes. We shouldn’t have to wait 99 years for release of Trump’s documents and evidence of criminal activity.
My emotional side tells me: You should prosecute this guy to hell and if he's already there you should chain him up there, because nobody knows whether the purgatory is still what it was in Dante's time.
my rational half asks me: What a strange tradition of pronouncing a general amnesty for the predecessor in office without knowing exactly what is the case. Is that like thanksgiving pardoning a turkey? Is it being done to maintain social peace in the country? So that no blood flows on the streets? If that is the consequence, the rule of law is already in the hands of the streets. Then it is high time that the Democrats (I mean everyone who appreciates democracy) woke up and opposed it. The "Friends of Mussolini" know exactly who their enemy is, it's time their enemy finally got it.
Because it is a philosopher's blog, one more brief remark. From the German philosopher Karl Jaspers, many will not know him, I learned the principle "Tolerance towards tolerance, intolerance towards intolerance." In that sense, no amnesty for Trump and his administration.
I don't think your question befits a philosopher. The founding fathers fought. Sometimes fighting opens up the door to change. Trump is a historical figure living in our day and time and the fighting on both sides is making our country stronger and promoting growth in a changing world. The Trump story is not over and you are asking something that may not even exist in 2 months time. Stay tuned and enjoy the ride. Philosophers, sit down and actually think what is happening here, its a much better thing than what ifs that may or may not happen. Look at the bigger picture.
Let the state attorney generals deal with him. Having the Biden Justice Department prosecute Trump would be extremely politically risky, and would set a dangerous precedent. Therefore, let the NY AG get Trump on tax fraud (and possibly some other stuff) and have the Biden AG stay out of it.
Sam W.
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