Every passing day seems to expose more evidence that President Trump is in the midst of a public crime spree. His activities — including pressing Georgia’s secretary of state to “find” nonexistent votes — increasingly bear the stench of criminality, bare-faced and public though they are.
History has taught us to expect crimes to be committed in the dark. But Trump has been openly fomenting violence and encouraging actions designed to undo a fair and free election. In plain view and over four years, he has threatened those who fail to join him in this course of action, one that would otherwise quickly be recognized as a seditious coup had his longstanding pattern not numbed observers to the real meaning of his conduct.
From early in his presidency, Trump has dangled the prospect of pardons to induce his cronies to remain loyal and do his bidding. On their face, his recent spate of pardons to his former national security adviser Michael Flynn, longtime adviser Roger Stone, and Paul Manafort, his 2016 campaign chairman, appear to consummate deals designed to conceal incriminating information — deals that might well have safeguarded Trump from removal or prosecution. As of now, we don’t know the extent to which the promise of such pardons actually kneecapped the Justice Department and congressional investigations. We need to find out: Although even unsuccessfully attempted “obstruction of justice” is a crime, it’s unlikely to seem serious enough all by itself to warrant prosecuting a former president.
The most dramatic example would be something the president has hinted he might do as he leaves office: grant himself a pardon. Even assuming such a self-pardon would be disregarded by any court as a nullity, as President Richard Nixon’s Justice Department concluded in 1974, that failed attempt at not just obstructing but also obliterating justice might be insufficient in itself to warrant prosecuting Trump. But, as the final piece in the pattern of criminal conduct, such a failed effort could form the last step in a massive criminal scheme to use the presidency against the nation.
Setting aside the Trump pardons that are contemptible but lawful, the darker subset of pardons given as rewards for unlawful conduct — pardons that complete criminal conspiracies to reward illegality with immunity — are valuable to those who stay loyal precisely because they (unlike a self-pardon) cannot be judicially invalidated. It’s their very potency that cinches criminal liability for their issuer, a point missed by all who mindlessly extol the “plenary” or “absolute” nature of the pardon power.
That’s why Trump’s pardons of Flynn, Stone, and Manafort could seal the case for criminal prosecution — so long as they were issued with corrupt intent and satisfy the other requisite elements of bribery or obstruction of justice. It’s irrelevant whether Trump actually gained anything of value from issuing those pardons; maybe he would have been even better off had he broken the promises he dangled to keep his cronies quiet. Among other considerations, that would have left them better able to invoke the privilege against self-incrimination, making it harder to compel their truthful testimony against Trump. Even so, the protection Trump purchased from his confederates in crime during his presidency — protection that shielded him for years — was itself something of great value he obtained in return for official favors. Had he not delivered his end of the bargain, it might have been harder to prove a corrupt scheme of obstruction and bribery in violation of federal criminal statutes. But he did deliver, making his prosecution even more plausible.
That leaves us with the question of whether even successful prosecutions of this former president would be worthwhile, given the risk of aggravating the division that has riven the nation and threatens to slow our recovery from the coronavirus pandemic and our progress toward a more robust and just economy. These concerns can’t be rejected out of hand; healing a dangerously fractured nation is a worthy goal. But failing to prosecute Trump could well hurt more than it heals.
Consider the “forgive and forget” model underlying Gerald Ford’s pardon of Nixon, which some believe contributed to Ford’s loss of the presidency to Jimmy Carter in 1976. Even after a scandal hardly comparable to this profoundly and thoroughly criminal presidency, Ford’s pardon failed on its own terms. It did little to heal the nation, prevented fuller discovery of the many wrongs of the Nixon administration, probably impeded necessary repair in crafting better institutional mechanisms to prevent similar abuses, and failed to establish any personal peril for future presidents engaged in criminal behavior. That final failure is evidenced by Trump’s professed faith in his purported “Article II infallibility.”
It puts the cart well before the horse to decide, in advance of a thorough criminal investigation, whether to indict former president Trump for crimes committed with the help of the pardons he appears to have promised and is now delivering. Put bluntly, we don’t know what we don’t know. Once the FBI and independent Justice Department prosecutors have unearthed all the relevant evidence, there will be time to decide whether the benefits of going forward with an admittedly controversial prosecution of the former president outweigh the reasons for pursuing other courses of action, like issuing a public report and letting history be the judge.
At the least, civil and criminal investigations already underway both at the state level in New York and, seemingly, by the US attorney of the Southern District of New York must continue. These probes appear to be focused on financial wrongs, some of them criminal, that didn’t involve presidential powers at all — allegations of Trump’s violations of federal campaign finance laws to benefit his campaign, for example (recall “Individual One” in the indictment to which his personal attorney Michael Cohen pleaded guilty) — and instances of possible bank, tax, and insurance fraud for which New York state and municipal prosecutors have already engaged forensic accountants. Those investigations cannot be terminated before reaching the rock-bottom truth, whatever the alleged downsides of dwelling on the past.
It’s one thing to shield a president during his term or for actions related to his executive functions. It is quite another to render any president retroactively immune from all prosecution, even for crimes predating his election or persisting into, but unrelated to, the official functions of the presidency itself.
We may disagree on the merits of launching new federal inquiries into how a former president deployed his official powers to enrich himself, cover up wrongs, or win reelection. But there can be no doubt that any hope of rebuilding the rule of law and confidence in our justice system will be lost if we overlook heinous wrongs only because the culprit became president. Trump will not be America’s last demagogue-turned-despot, and certainly not the most talented we are ever likely to confront. The presidency must never become a get-out-of-jail-free card for all crimes committed in one’s lifetime. If it does, we legitimize any and all criminality, kleptocracy, and abuse on the road to the White House. Whatever your attitude toward the claim that Trump became president by illicit means and used the powers of the presidency criminally to enrich himself and his family and to attempt to engineer a coup, I invite you to join me in the search for how best to proceed as we together begin what will become a more hopeful, prosperous, and principled time for us all.
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and author of many books on the Constitution. Follow him at @tribelaw.