When it comes to prosecuting Trump, let's be selective

While I agree wholeheartedly with Andrew Weissmann, a member of special counsel Robert S. Mueller III’s prosecution team, that there is a basis for prosecuting Trump for obstruction of justice while in office, I part company on the efficacy of doing so. Weissmann is correct that the “evidence against Mr. Trump includes the testimony of Don McGahn, Mr. Trump’s former White House counsel, who detailed how the president ordered the firing of the special counsel and how when that effort was reported in the press, Mr. Trump beseeched Mr. McGahn to deny publicly the truth and, for safe measure, memorialize that falsity in a written memorandum.” Weissman also reminds us that we have amassed evidence that Trump tried to “influence the outcome of a deliberating jury in the [Paul] Manafort trial and his holding out the hope for a pardon to thwart witnesses from cooperating with our investigation.” Nevertheless, prosecution is neither the only nor even the best way to address such crimes.

A review of the evidence already available, a definitive finding of all illegal actions in the Trump administration (drawn from the special counsel’s own findings) and recommendations for statutory reforms and new guidelines for prosecuting a sitting president would provide some measure of accountability. More important, such action could deter future conduct of this type. But relitigating actions that the special prosecutor already investigated and the House of Representatives refused to act upon during Trump’s impeachment would open the door to endless political retaliation. Although a prosecutor would be entitled to bring charges, this is a case when prosecutorial discretion should be exercised to decline to seek a criminal indictment.

However, potential prosecution for possible state or federal tax and related financial crimes, which would predate Trump’s presidency and are essentially unrelated to his time in office, would be entirely appropriate. As Weissmann points out, such action can proceed on the state level even if Trump attempts to pardon himself (a constitutional farce, because one cannot “grant” a pardon to oneself) or resigns early so Vice President Pence can do it for him.

With regard to attempts to undermine and overthrow the results of an election, the incoming Justice Department would be derelict in failing to investigate not only Trump’s but also other Republicans’ actions to undermine voters’ fundamental right to cast a ballot. As several legal gurus have pointed out, under the criminal enforcement provisions of the Voting Rights Act, “No person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote . . . or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and report such person’s vote.” Officials at the Justice Department — as well as those at the state level — have an obligation to investigate whether this or other statutes were broken. It may be that no laws were broken but that additional criminal and civil penalties are needed in the law.

Finally, we need review of baseless and frivolous litigation that Trump, the Republican National Committee or others filed (35 cases, at last count, were summarily dismissed) to see whether sanctions are warranted under Rule 11 of the Federal Rules of Civil Procedure. State bar associations in each state where lawsuits were filed must undertake a review to determine if professional punishment should be assessed against attorneys who filed unmeritorious cases for “any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation”; presented claims not warranted by existing law; or factual contentions that were made without “evidentiary support.”

Post-Trump investigations are necessary to determine accountability, recommend necessary legal fixes and assess attorneys’ professional violations. Not all, however, require a criminal investigation. When it comes to criminal matters, we should focus on those with the greatest likelihood of success, the most utility in protecting our democracy and the least risk of provoking endless recrimination.

A note for readers: I will be off for Thanksgiving, returning Monday, Nov. 30. Have a safe and joyous holiday.

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