With increasing and troubling frequency, an argument is being made that former presidents should be presumptively shielded from criminal investigation and prosecution unless it is all but certain that a jury would return a conviction — a much higher bar than applies to anyone else. The argument amounts to a claim that — regardless of the nature of the crime — a former president should be above the law and beyond its reach. It’s one thing to debate the case-by-case wisdom of prosecuting a sitting or former president. It’s another to let that debate bring about the destruction of the very system — our constitutional democracy — that makes possible this, and every, public debate. Yet that’s exactly what I fear might be taking place in what would be an unforgivable failure of nerve, a monumental failure of courage.
We may be witnessing a silent and ill-considered extension of the pernicious myth based not on our Constitution but on a mere memo the US Attorney General’s Office of Legal Counsel released in 2000 which concludes that sitting presidents are immune from criminal prosecution.
I’ve previously questioned the correctness of that notion, but what is at stake if we implicitly extend presumptive immunity to those no longer holding public office is categorically different, far harder to defend, and far more dangerous.
We need to begin with the fundamental precept that not all crimes are created equal. Those crimes — regardless of who allegedly commits them — whose very aim is to overturn a fair election whereby our tradition of peaceful, lawful succession from one administration to the next takes place — a tradition begun by George Washington, continued by John Adams, and preserved by every president since except Donald Trump — are impossible to tolerate if we are to survive as a constitutional republic.
For nearly all of us, a solid factual basis to believe that one has committed a major federal crime — much less incited an insurrection against the government itself — would trigger serious criminal investigation, typically with a grand jury to ferret out all available evidence. So why the hesitation by the US attorney general to investigate and potentially prosecute when it comes to the former occupant of the Oval Office?
Political scientists tell us that criminalizing political differences is the mark of an immature legal system, a banana republic or a tyrannical, despotic regime. By criminalizing political differences, some say we run the risk of descending into an endless cycle of recrimination and revenge — and eventually armed conflict following complete loss of faith in the rule of law. To avoid such catastrophe, we should err on the side of letting bygones be bygones. At least for those at the highest levels of government.
Maybe so. But surely this rule cannot apply to a uniquely destabilizing and dangerous category of crimes, regardless of who allegedly perpetrates them: crimes directed at preventing the lawful transfer of political power through free and fair elections. To equate such crimes with more garden-variety offenses, financial or otherwise, is to make a monumental category error. Crimes in this special category strike at the very heart of what Abraham Lincoln called “government of the people, by the people, for the people.” They differ intrinsically from crimes in which the risks of appearing to engage in politically motivated prosecution might at times outweigh the necessity of opening a formal investigation into a former officeholder.
Part of the thinking behind the reluctance to prosecute former presidents has been the rarely articulated but omnipresent worry that a president who has committed crimes and expects his successor in office to prosecute them will have an especially powerful motive to resort to corrupt and unscrupulous means to cling to power. There was talk in Trump’s own case, for example, that his desperate drive to defeat Joe Biden at all costs — which led him to extort Ukraine to feign an investigation into Biden’s family and thus led to the first bipartisan impeachment in American history — was in no small part born of Trump’s obsessive fear that a Biden administration might prosecute him for his many alleged financial crimes.
But that very rationale demonstrates the utter irrationality of failing to prosecute those particular misdeeds that manifest not merely greed or other common character flaws but a criminal refusal to abide by the rule of law with respect to leaving office peacefully, once duly defeated at the ballot box or constitutionally term-limited.
Any president or attorney general who failed to pursue with unrelenting zeal the mission of uncovering and holding perpetrators accountable for crimes fitting within that category, perhaps guided by a tradition of giving past presidents in particular an implicit pass, would not only be derelict in their duty to defend the rule of law, but would be lethally endangering the very survival of the American experiment in self-government.
We cannot know for sure, given the way federal criminal investigations are typically shrouded in secrecy, but it could well be that Attorney General Merrick Garland is approaching the possible prosecution of the former president in this hesitant way, especially in light of how much else — from legal issues spawned by the coronavirus pandemic to immigration controversies arising from the tragedy in Afghanistan — bedevils him and the entire administration today. My conclusion: Despite all this, the attorney general should not treat the task of holding those who tried to engineer a coup as anything less than Job One.
In a recent opinion piece in The Washington Post, two former US attorneys and I laid out a roadmap to the criminal investigation we believe must be undertaken — if it hasn’t already been — with respect to every private citizen or public official, whether in Congress or the executive branch, who may have played a role.
No tradition of forbearance can properly shield what tyrants and despots regularly do: invent “votes” to convert defeat into victory, or hold onto office by fabricating claims of corruption after losing in a free and fair election. In the case of Trump, we have all been witness to what looks very much like a veritable “sore loser” crime spree that included pressuring his own Justice Department to “just say the election was corrupt” and let him and his friends in Congress do the rest; insisting that the Georgia secretary of state “just find” the 11,780 votes he needed to put that state’s 13 electoral votes in his column; inciting and giving aid and comfort to the first insurrection against our government fomented by its head; and perhaps engaging in seditious conspiracy.
Trump is not our first president credibly alleged to have committed serious crimes while in office. But even president Richard Nixon’s worst obstructions of justice did not approach the ultimate high crime of seeking to bring down the entire democratic system by which we choose our leaders every four years. When President Gerald Ford pardoned his disgraced predecessor, perhaps lighting the path for Trump to follow, at least he was not foreclosing accountability for an effort to overturn an election or cling to power after defeat. Nor was he encouraging Nixon, too politically humiliated and discredited to run again, to try repeating his abuses of power. In contrast, Trump’s apparent crimes, which he and his supporters openly insist were patriotic acts that they would gladly repeat, have the potential to leave him in power indefinitely. The only antidote is vigorous investigation and prosecution, not for purposes of retribution but for purposes of deterrence.
This risk to be averted — of an executive using corrupt or violent means to seize and hold office — was our republic’s first and animating fear. Rebels from a hereditary monarchy, the framers of our Constitution worried about a chief executive who might use the powers of the office to convert the limited term granted by the voters into a permanent appointment secured only by abusing the powers granted. Indeed, these fears nearly derailed the ratification of the Constitution itself, and led to several compromises and mechanisms — such as the impeachment power — aimed at holding the chief executive within constitutional bounds.
Trump’s relentlessness has laid bare the defects in many of those accountability mechanisms. Now Garland stands as the final line of defense for our constitutional democracy. No prior attorney general has confronted so daunting a challenge. For what might be the first time in his life and what will surely be the last, Garland could hold the future of the last best hope on earth in his hands.
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus of Constitutional Law at Harvard and was the US Justice Department’s first head of the Office of Access to Justice. Follow him on Twitter @tribelaw.