As a candidate, Joe Biden was unequivocal: If elected president, he would not spur the Justice Department to investigate his predecessor.
“I would not dictate who should be prosecuted or who should be exonerated. That’s not the role of the president of the United States,” Biden said last year during a Democratic debate. “If that was the judgment, that [President Trump] violated the law and he should be in fact criminally prosecuted, then so be it, but I would not direct it.”
President-elect Biden’s view has not changed. According to NBC News, he is telling close advisers he “is going to be more oriented toward fixing the problems [created by the Trump administration] and moving forward than prosecuting them.” Biden is also reportedly concerned that such investigations would further divide a wounded nation he has pledged to unify.
Yet without accountability, there can be no unity.
“Contrary to Biden’s initial reaction, an investigation of Trump’s misdeeds is critically important to heal the country and to restore trust and confidence in the federal government,” says Ivan Espinoza-Madrigal, executive director of Lawyers for Civil Rights in Boston, which has challenged the Trump administration on such policies as 2020 Census restrictions, attacks on anti-discrimination protections, and forced family separations.
“Biden should not sweep injustice under the rug and pretend it didn’t happen,” he says. “We need an account of Trump’s wrongdoing to begin the process of rebuilding and repairing. An investigation would be an appropriate first step.”
From witness tampering to obstruction of justice to abuse of power, there would be much to investigate. Vice president-elect Kamala Harris certainly recognized this fact when she was running for the office Biden ultimately won. On an NPR podcast last year, Harris said if she was elected, her Justice Department would “have no choice” but to investigate the Trump administration.
“Everyone should be held accountable,” she said, “and the president is not above the law.”
Until his election defeat, Trump, who has treated the presidency like an immunity shield, suffered no consequences for his illicit actions. This is a dangerous precedent, one that has already emboldened others to openly commit acts of wrongdoing. Senator Lindsey Graham allegedly tried to pressure Georgia election officials to discard ballots in hopes of swinging the state toward the already-defeated president.
Given how laden the Trump years have been with scandals and corruption, it’s been more of a crime scene than a presidency. To ignore all of that would be unconscionable, and Biden would risk alienating many of the 80 million voters who elected him — not to mention members of his own administration.
That’s what happened to President Gerald Ford.
In his book “When the Center Held: Gerald Ford and the Rescue of the American Presidency,” Donald Rumsfeld (yes, that Rumsfeld) writes that Ford thought allowing Richard Nixon to be prosecuted for his Watergate crimes would “aggravate” the nation’s divisions. Nixon, Ford believed, had suffered enough from the disgrace of being the only president forced to resign from office.
That decision, Rumsfeld writes, placed “an indelible mark on his presidential legacy” and contributed to the brevity of Ford’s White House tenure.
Maurice Cunningham, a University of Massachusetts at Boston associate professor of political science, says Trump’s malfeasance would be even harder to move beyond, because “the magnitude here is just different.”
Biden can’t ”simply overlook the possible criminal infractions of Trump and others in his administration in the name of ‘ending our long national nightmare’ or avoiding counterproductive conflict post-January 20,” he says. “Can this country simply look away from criminality during the past four years? Could there be criminal conduct in relation to foreign governments? If this is to be a country of laws, then that can’t be swept away.”
With the COVID-19 pandemic, a collapsed economy, and whatever fires Trump is intentionally setting to upend his successors, the Biden administration will face unmatched challenges. That includes restoring the rule of law, so that no president again believes they are beyond the reach of legal consequences. And with Trump, there must finally be consequences.
It’s unlikely that Biden would forbid the Department of Justice from investigating Trump, but it’s also hard to imagine that the new attorney general would do so without the president’s blessing. Biden’s imprimatur matters. America’s hit-and-run tendency — walking away from inflicted traumas without accountability or recompense — always fails to mend this tattered nation.
This election season, justice in support of democracy was also on the ballot. Throughout his political career, Biden has spoken earnestly about wanting to heal this nation. When he becomes president, he should recognize that seeking unity without justice for the past four years will never be unity at all.