WASHINGTON — President Trump rode into the White House threatening to throw his opponent, Hillary Clinton, into jail.
Heading into reelection under the cloud of the Mueller report, he’s far more likely to be on the receiving end of any such threats.
Trump’s alleged indiscretions have already become a major talking point on the campaign trail. Several Democrats said Trump appears to have committed prosecutable crimes, while affirming they’d let the Justice Department decide what to do about it. At least one has said Trump faces certain prosecution, a prospect that could result in Trump being thrown into federal prison under his successor after a politically explosive trial.
Such talk might delight the left, but the debate is alarming career law-enforcement professionals who worry Democrats risk repeating one of Trump’s most controversial tactics: Appearing to use the Department of Justice as a political tool against his opponents.
“It’s very, very dangerous for people who are candidates for the position of president to say, ‘If I win, this guy should be prosecuted,’” said Frank Bowman, a former prosecutor and author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. “That’s banana republic stuff.”
“The big challenge of the Trump period is whether we can make it through successfully without descending to the levels of misconduct exemplified by the president”
Although no candidate has gone as far as Trump did in 2016, legal experts fear the debate could easily grow louder as the crowded primary heats up and Democrats scramble to distinguish themselves.
“The big challenge of the Trump period is whether we can make it through successfully without descending to the levels of misconduct exemplified by the president,” said Rep. Jamie Raskin, a member of the House Judiciary Committee. “Of the hundreds of American norms and values trashed by Trump, one of the most astonishing is the one that says elected officials don’t call for the prosecution or jailing of their political opponents.”
“Lock him up?”
Democratic presidential candidates have been increasingly vocal about their preference for dealing with Trump’s potential illegal behavior, although several have also been careful to couch their comments with affirmations of the DOJ’s independence.
- Kamala Harris, a Senator and former prosecutor, has been the most out-front on the issue, saying explicitly her DOJ would prosecute Trump. “I believe that they would have no choice, and that they should, yes,” she told NPR.
- Beto O’Rourke, presidential hopeful from Texas, has said he believes Trump committed prosecutable crimes. “I would want my Justice Department, any future administration’s Justice Department, to follow the facts and the truth, and to make sure at the end of the day that there is accountability and justice,” he told ABC. “Without this, without that, this idea, this experiment of American Democracy comes to a close.”
- Pete Buttigieg of Indiana said he’d be wary of explicitly telling his DOJ to go after Trump. But, “to the extent that there’s an obstruction case, then yes, DOJ’s got to deal with it,” he told the Atlantic. “I would want any credible allegation of criminal behavior to be investigated to the fullest.” He also said he’d take pardoning Trump off the table.
- Elizabeth Warren, Senator from Massachusetts, has written that Trump’s efforts to obstruct the Mueller probe were “a crime,” and that “If Donald Trump were anyone other than the President of the United States right now, he would be in handcuffs and indicted.” She’s released a plan for rescinding the DOJ policy that a sitting president can’t be charged.
- Kirsten Gillibrand, Senator from New York, told VICE News she’d let her DOJ sort it out. “The department of justice is supposed to be independent,” she said. “So they would make their own judgment about whether crimes have been committed and whether an indictment was appropriate.”
- Eric Swalwell, Congressman from California and a former prosecutor, told VICE News: “Unlike this president, I’ll leave questions of the law and order to independent prosecutors. That way, if he’s indicted, he’ll get a fairer trial than he probably deserves.” Swalwell has also introduced a bill that would pause the statute of limitations for presidential crimes until their term ends.
Even Trump seems to understand the clamor, telling ABC that if he were running against himself, he’d probably sound like Harris.
“I heard she made that statement. And you know what? Who wouldn’t?,” Trump told ABC, dismissing her comments as just politics. “Probably if I were running in her position, I'd make the same statement.”
Despite Trump’s bravado, he may have an eye on his own legal jeopardy. In fact, members of his inner circle believe the president is already worried about the prospect of prosecution if he loses in 2020, according to New York Times reporter Maggie Haberman.
The Case Against Trump
The Mueller report explicitly tossed the question of whether to indict Trump for obstruction of justice to Trump’s successor, noting that Trump can’t be indicted as president but could be charged after he steps down.
Whoever unseats him would face the unenviable position of either enraging Trump’s supporters by overseeing his prosecution, or disappointing the Democratic base demanding he be held accountable.
“Special Counsel Mueller delivered evidence of presidential obstruction of justice on a silver platter to both to Congress and to future U.S. attorneys”
The evidence Trump committed obstruction of justice presented in the Mueller report is clearly strong enough to warrant an indictment, according to an open letter signed by over 1,000 former federal prosecutors.
“Special Counsel Mueller delivered evidence of presidential obstruction of justice on a silver platter to both to Congress and to future U.S. attorneys,” Rep. Raskin said. “At the same time, we reject politically motivated prosecution.”
The situation requires drawing a strict line between candidate’s rhetoric and the DOJ’s prosecutorial decisions, said Benjamin Wittes, editor-in-chief of the legal forum Lawfare.
While a president shouldn’t be allowed to commit crimes with impunity, candidates should limit themselves to a bare-bones statements of faith in their Attorney General, Wittes said.
“The right answer is: ‘I would appoint the sort of Attorney General who would resolve this and all matters independently, and I wouldn’t intervene in that decision if it’s at all possible to avoid doing so,’” Wittes said.
Bowman said the trial of a former president would be so divisive that it shouldn’t be allowed to take place over anything that could even be remotely construed as political.
“Once you start that tit-for-tat game, it’s very hard to see where it stops,” Bowman said. “Anything that looks like a prosecution for political crime, however well-grounded, should be avoided like the plague.”
That may be part of why no president in American history has ever been prosecuted after stepping down.
Former President Nixon was made an unindicted co-conspirator during the 1970s Watergate scandal, but later pardoned by his successor, Gerald Ford, in a gesture that sparked outrage among Nixon’s opponents.
Former President Bill Clinton reached a deal with prosecutors on his final day in office, following his investigation for possible perjury charges, in which he agreed to give up his law license and pay a $25,000 fine.
But if the next Democratic president refrains from pressuring the Attorney General to lock Trump up, it won’t be because of Trump’s own example of restraint.
“Once you start that tit-for-tat game, it’s very hard to see where it stops”
After his election, Trump told his first Attorney General, Jeff Sessions,“on multiple occasions” to launch an investigation and prosecution of his defeated 2016 opponent, Hillary Clinton, according to the Mueller report.
Sessions refused, and Trump went on to complain bitterly about his attorney general, until Sessions eventually resigned under pressure.
Daniel Newhauser contributed reporting.
Cover: President Donald Trump speaks during his re-election kickoff rally at the Amway Center, Tuesday, June 18, 2019, in Orlando, Fla. (AP Photo/Evan Vucci)