Would President Biden's Nominee for Attorney General Pledge Not to Prosecute Former-President Trump?

Such a pledge could avoid years of bitter division.

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On Saturday evening, President Biden gave a speech promoting unity. I take him at his word. I am cautiously optimistic that he will govern, as much as possible, to bring the country together. I do not expect to agree with all, or even most of his actions. But he seems to bring a humility to the position after four contentious and rancorous years.

There is one issue, however, which would foment years of bitter division: the criminal prosecution of former-President Trump and members of his administration. Make no mistake. There is blood in the water. Less than 24 hours after the polls closed, former Acting Solicitor General Neal Katyal issued this ominous tweet: "Just a reminder that federal criminal indictments come from the U.S. Justice Department and do not need the approval in any way of the United States Senate."

Neal is correct. But the confirmation of the Attorney General does depend on the United State Senate, which may be controlled by the Republicans.

I do not think President Biden would direct his Attorney General to prosecute, or not prosecute anyone. Indeed, Biden has pledged "issue an Executive Order directing that no White House staff or any member of his administration may initiate, encourage, obstruct, or otherwise improperly influence specific DOJ investigations or prosecutions for any reason." Therefore, Biden's nominee for Attorney General will have to make the ultimate decision of whether to prosecute Trump, or his associates. Here, the Senate confirmation process may provide a check.

Here, I will assume that Republicans maintain a slim majority in the Senate. As a result, Senator Chuck Grassley will hold the gavel. There may be a one, or two vote Republican majority on the Senate Judiciary Committee. I can see Republican Senators asking the Attorney General nominee if he or she would pledge not to prosecute President Trump and his associates. There is some precedent for such a pledge, though it is a strange one. During the Watergate scandal, Senators asked President Nixon's nominee for Attorney General and Deputy Attorney General to pledge to not interfere with Special Prosecutor Archibald Cox. (Solicitor General Bork, who did not make that pledge, was free to fire Cox). In 2021, the Senators would make the opposite request: to not conduct an investigation and prosecution of the President and his associates.

If the nominee refuses to make this pledge, the Senators on the Committee may simply vote the nominee down. And it is unlikely that the Republican Majority Leader brings a nominee for a floor vote without a successful committee recommendation. Thus, there will be some pressure on the nominee to think very carefully about how to approach this issue.

I'm sure some people reading this will react with disgust: How dare you Josh?! Trump belongs in jail. Lock him up! I get it. I have no doubt that a competent Attorney General can charge Trump, Barr, and everyone else with a slew of federal crimes. But you know, and I know, that those prosecutions will take years of litigation–especially if there is a self-pardon. And do you really want to endure a decade of tweets about another witch hunt? The cases will be resolved, if at all, long after Biden is out of office. Trump will never set foot in a jail cell. The high from the initial indictments will quickly be snuffed out by the realities of the separation of powers. A blue ribbon panel to investigate alleged wrongdoing would be far more satisfactory.

Prosecutorial discretion would be a wise choice here. President Biden would not need to follow the model of President Ford, who pardoned President Nixon. But a pledge from the new Attorney General not to prosecute Trump and his acolytes would help unite the country. Remember, more than 70 million people just voted for Trump. And such a pledge–issued before January 20–could remove the incentive for Trump to self-pardon, and pardon his associates. I see a large upside to this exercise of prosecutorial discretion. And, for those who crave blood, the New York Attorney General and the New York District Attorney can proceed on their own accord.

NEXT: WaPo: "Biden plans immediate flurry of executive orders to reverse Trump policies"

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  1. Biden’s AG chasing after Trump is a dead-end, electorally. All it does is stroke the most die-heard leftists, and nothing else at best. At worst, it just further bifurcates the Democratic party, and especially the coalition that elected Biden. Plus, there are plenty of state AG’s that are already chasing after Trump.

    The reality is that Republicans are not dying out any time soon. The narrative that the Republicans would eventually die out because the Republican party is the party of old white men has already been suspect, and it has been thoroughly destroyed by this election. Trump gained support among all minority groups, despite his catastrophic handling of everything from race issues to the pandemic, which disproportionally impacted minorities. Trump gained black voters vis-a-vis 2016. Trump gained Asian voters vis-a-vis 2016. And there doesn’t need to be much said about Hispanics.

    Biden will instead focus on “healing” the country and repairing the Democratic coalition. The Republicans will likely try to run a PoC in 2024, to further bifurcate the Democrats.

    1. Expending the little political capital that Biden has to chase after the Republican party’s former standard-bearer just makes no sense.

      What leverage, exactly, does Biden have to actually get stuff done in this country?

      If we look at this with a cool head, we see that Biden has:

      1) A possible 50-50 Senate, assuming that liberal GA residents know what a “special election” is.

      2) The fact that 2022 doesn’t look good for Republicans, given that about 30 R Senators are up for re-election, and only about half that in D Senators are up for re-election. Midterms are usually good for Republicans anyway, but 2022 could be the Republicans’ to lose if Biden is able to pin blame on them.

      Now, let’s see what leverage/soft power the Republicans have:

      1) The fact that their historically unpopular President, with a historically terrible economic downturn, with a historically terrible handling of race relations, with a historically terrible approval rating, managed to secure the 2nd most votes in American history.

      2) The fact that the Court is 6-3, conservative-liberal, and will likely be eager to kill any forms of Democratic party overreach.

      3) The strong likelihood of a Senate majority.

      4) Gained several seats in the House.

      5) Did better among every minority group vis-a-vis 2016.

      6) Retained or won basically every state legislature race, so they get to gerrymander the maps to 2030.

      1. If this is an audition for Fox News, it’s a good thing Ailes is dead, because he would have waved his hand dismissed it with ‘too fawning . . . mostly just unconvincing,’

        1. Ailes is dead? We should check to see if he voted for Biden.

          We know Joe Frazier and Will Smith’s dad did.

          1. Disaffected, delusional culture war casualties are among my favorite Volokh Conspiracy fans.

    2. What did he do that was ‘catastrophic’ about COVID? Once its in its in and then is pretty much down to demographics, local governments, and infrastructure beyond the Presidents control and no major country has managed to keep COVID out. At most you could say he wasn’t a psychic and didn’t know the optimal time to close the country down and cut off travel that we know now which would probably just switch the pandemic spikes around.

      1. Once its in

        Well, to start with that, maybe not make the guy in charge of infectious diseases wait three weeks to get a meeting? Being pretty much the last western country to announce a travel ban isn’t great…

        1. Because Trump has never had a travel ban challenged? Surely some federal Judge would have issued a national injunction blocking it after finding that, in spite of such a travel ban being within his authority, the evil desire within Trump’s mind to discriminate against those of some race or religion meant it wasn’t constitutional.

          1. That definitely sounds like a coherent reason why the infectious diseases guy wouldn’t even be able to get a meeting to suggest a travel ban until 3 weeks later…

      2. What could he have done?

        Maybe not mock mask-wearing? Maybe not conduct rallies and meetings to spread the virus. Maybe encourage sane behavior rather than lunacy. Maybe not lie about the seriousness. Maybe not disband groups whose job it is to address pandemics, and ignore plans drawn up by both Bush and Obama. Maybe not pull CDC observers out of China last year. Maybe, when he banned travel from Europe, make some sort of arrangement so that people coming home weren’t crammed into crowds at the NYC airports for hours. Maybe encourage testing and contact-tracing, rather than killing the idea because he thought the pandemic was just a blue state problem, and would help him politically. Maybe organize the acquisition of PPE so the states weren’t bidding against each other. Maybe not ridicule knowledgeable medical advisers and appoint an epidemiological ignoramus from Fox as his principal adviser on the matter.

        Give me some time and I’ll give you a more complete answer.

        1. Mask wearing – assuming you are talking about the cloth masks that those of you in the Church of Masks have taken as your holy symbol – does nothing.
          Literally, there is no difference in disease spread rates between wearing one and not. The CDC, the NIH, and Lancet have all published large metastudies proving this. The fact that people like you continue to make these ritualistic protestations shows exactly how little of the COVID panic was science-based, and how much was political.
          If you mean N95 or better masks, then Yes! That would have helped. But there simply were not – in fact, even now, are not – enough masks for people to spend $3-$5 for a disposable mask good for 4-8 hours. Trying to tell people they needed to spend $10-$20 a day on face coverings is a flat non-starter, even if the masks existed.
          If you actually cared about the science, you’d be advocating goggles. Goggles HAVE been shown to reduce disease spread, unlike cloth masks. And yet, I’ve not seen a single doctor or politician push for that…

          Much of the rest of what you mention either ins’t true, or isn’t a power of the Executive.

          1. Literally, there is no difference in disease spread rates between wearing one and not.

            There is this:

            Dr. Hesham A. Hassaballa, a critical care physician, digs into the data of what happened when a mask mandate was instituted by the governor of Kansas in July. Counties in Kansas were allowed to opt out of the mandate, and dozens of counties did so. Researchers compared the spread of Covid-19 in those counties with the mask mandate and those without and found that in the first two weeks after the mask mandate, cases rose in all counties. However, two weeks later, cases were steady and/or declined. When they controlled for social distancing, they found that the mask mandate decreased transmission between 50% and 61% in those counties that adopted the mandate.

            “Now, it is absolutely true that masks do not completely prevent the spread of Covid-19,” writes Hassaballa. “No one has ever said that. It is, however, absolutely true that wearing masks slows transmission of the virus, and we now have real-world data to back this up.”

            Presumably, most of the masks which caused that decrease were not N95s. Of course, virus denial can deal with that somehow.

            1. Great! Let him put it out in a peer reviewed study, rather than a blog post about a New York Times opinion piece.

              It can then go into the same collection as the hundreds of other studies about masks and coronavirus spread, and we can see how that statistical analysis falls out.

              In the meantime, I’m going with the 300+ peer-reviewed studies that have been performed over the past 3 decades, reviewing millions of cases all over the world. If you want to choose a random person’s blog post instead, be my guest. Anyone is allowed to choose their faith, and the Church of Masks is a good fit for you.

        2. “Maybe not mock mask-wearing? ”

          Outside the major screw by coumo NY & NJ
          The results are better than most of the countries in Europe

        3. Bernard,
          You know the answer is easier than that.
          1) Show compassion for those affected from the beginning.
          2) Make clear the intent of the Federal government to assist those citizens returning from hot spots.
          3) Stand in continual solidarity with the medical profession.

    3. Nikki Haley 2024!!!!!!!

    4. I agree. But I also think there are plenty of people like Jennifer Rubin at the Washington Post who want to see Trump destroyed…and also any person who assisted or “enabled” him.
      I hope Biden focuses on healing the country.

      1. SC politics has a (deserved) reputation of hardball politics — Haley would eat Rubin’s lunch. She didn’t take crap from Trump — or anyone else.

      2. You can hope and wish, but it will take little for those that voted for Trump to be loud and persistent in the chant of “not my President” from the outset.

        That is what happened in 2016 and it is likely in 2020.

        1. “And just like that the rioting and looting has ceased overnight. And now the half of the country that pummeled America like a battered wife is telling her to put on sunglasses, hide her black eye, be a good girl, and “come together as one.” Her answer? “Go fuck yourself.”

          – James Woods

      3. The Republican Party needs to cleanse the bigotry and backwardness that afflict it. If it does not, better Americans will deal with the bigots, the obsolete clingers, and the Republican Party ha appeases those substandard elements of American society.

        Change or die, Republicans.

        Either way, I will be content.

        1. How is the Republican party bigoted when minority support for the party increased across the board, from blacks to Asians?

          1. 1. It increased from “crazy low” to “very low”
            2. There’s no reason why minorities couldn’t be bigots
            3. Non-bigots vote for bigoted parties for all sorts of reasons.

            1. 45% is among hispanics is “very low”?
              20% among blacks is “very low”?

              Well, true, ever since FDR bought the black vote in the 1930s, they’ve voted for Democrats 60%-40% or more, even when the same people were siccing police dogs on them.

    5. WHAT coalition that elected Biden?

      The election was stolen.

      1. This seems to be the major healing issue. How is a Biden administration to address that many think the election was stolen?

        1. How does he address the issue that many think the sky is green?

          More seriously, Trump is going to file lawsuit after lawsuit. If the failure of these lawsuits doesn’t convince the people you’re talking about nothing will.

      2. The election was not stolen.

        Don’t you think that if the Democrats could steal the election for Biden they could steal it for a lot of their Senate and House candidates as well? That didn’t happen.

  2. Pretextual investigations should be criminalized. They are in bad faith, meaning, lies. Their real purpose is partisan attack. The impeachment of Bill Clinton took up a 1000 hours of his time. The real reason for it is that he passed the biggest tax increase on the rich constituents of the Republican Party. He wasted time defending himself on nitpicking bullshit charges, instead of addressing the first World Trade Center bombing. That pretextual investigation was a factor in 9/11. No lawyer could say that, because the lawyer profession must be crushed to save our nation.

    1. Cite for the 1000 hours? Couldn’t find anything on Google.

    2. The impeachment of Clinton and Trump were both legitimate in my option. They both should have been convicted.

      1. “The impeachment of Clinton and Trump were both legitimate in my option. ”

        The impeachment of Clinton was chicken34it
        The impeachment of Trump was retaliation for investigation of Hunter’s corruption & as we now know from the laptop, corruption of his dad

        1. The impeachment of Trump was retaliation for investigation of Hunter’s corruption & as we now know from the laptop, corruption of his dad

          Delusional.

          Many prominent Republicans agreed that what Trump did was wrong, they just didn’t think it rose to the level of impeachment (with the notable exception of Romney).

          But this just translates to: Prominent Republicans knew Trump’s conduct was inconsistent with his duties and oath of office and definitely warranted removal, but they didn’t want to cross their base so the most they were willing to say was that his actions were inappropriate or some such.

  3. So the equilibrium is “commit all the crimes because the next administration will appear political if it prosecutes them.”

    1. Would Trump be investigated by NYS if he were not elected President? If the answer is, no, the investigation is in bad faith, and a partisan political attack. I would criminalize such investigation, and put the NYS prosecutors in prison. They are all lawyers, a profession that is completely out of control. It must be crushed to save our nation.

      1. Would Trump be investigated by NYS if he were not elected President? If the answer is, no, the investigation is in bad faith, and a partisan political attack.

        Very likely he would not be investigated by NYS if he were not President, but the rest doesn’t follow. The facts only came to light because he was President, but once they did there is nothing “bad faith” about investigating. Should the state allow potential crimes for which it has clear evidence go because the suspect is the President?

        1. Exactly this. Bad logic, bad conclusion. But, of course, they reasonablen backwards from their conclusion to the result they want. Hence, Biden should consider pardoning Trump like Ford did Nixon? Seriously? By suggesting the parallel, Blackman damns Trump as equivalent to Nixon. The sad fact is that even the criminal Nixon was a better President than Trump on nearly every metric of importance.

    2. Yes, that’s been a tradition since the Nixon pardon at least. Though I’d describe it as more of a corrupt bargain: “I hold the outgoing administration harmless, and in return the next administration holds me harmless.”

      Paying it forward, so to speak.

      But Biden will be under enormous pressure from his base to end that bargain, because the Democrats were not content with just disliking Trump, or thinking his policies bad: They’ve spent 4 years fomenting a white hot hatred of Trump among their base, and anybody they could influence. That may not leave Biden with a lot of choice in the matter.

      I wonder if Trump learned the lesson Clinton taught us all, and spent his administration accumulating blackmail files? It might be the only thing that saves him.

      1. I think it’s a necessary evil for the peaceful transfer of power.

        Once you start getting into a system where the “new” administration starts prosecuting the “old” administration for its actions, no matter how grey….

        The “old” administration starts becoming far more invested in not becoming the old administration.

        1. You mean, “invested in not becoming the old administration,” like, having committed numerous cases of fraud brought to light by sustained media investigation, trying to avoid a huge tax bill from becoming due, sitting atop a criminal justice apparatus that takes the position it can’t prosecute you for anything? That kind of thing?

          Gosh, yeah – I would hate for that to be an incentive in running for office.

          Nothing we have seen from Trump during his campaign – his desperation, his pleading, his tantrums – suggests that he went into this contest with the confidence that a new administration would act benevolently towards him. He’s guilty as sin, and he knows it – and we will soon know just how guilty. So you’re trying to assert the existence of a norm to avoid an outcome that is already here.

          1. “You mean, “invested in not becoming the old administration,” like…”

            No.

            What I mean is this. If you are in an administration, and you know there will be a peaceful transfer of power, and if your side loses, you’ll transfer to private life fine, then you’re generally going to behave ethically and not try breaking the law to stay in office.

            If on the other hand, you know that if your side loses, you’ll be prosecuted for any potential crime, no matter how weak the case, as a political hit job, then why bother being “ethical?”. They’ll find a reason, true or not to prosecute you. So you better not lose, and if you need to break a few laws so your side wins, at least you’re still free and not in jail. Because if you don’t break any laws, they’ll try to put you in jail anyway.

            1. So I suppose you’re tacitly admitting that Trump is not really concerned about being attacked, as part of any “political hit job” over some “weak case.” Rather, his clear desperation and need to keep a job he obviously didn’t want to do was motivated by the conviction that his true crimes, if revealed and investigated, would sink him and his family?

              1. No. This isn’t “clear desperation”. What Trump is doing with his lawsuits is completely legal and should be completely expected. Biden would do exactly the same in Trump’s position.

                1. Armchair, what makes you think Biden would do that? No other defeated President has done anything like what Trump is doing. Trash-talking democracy, announcing suits without having evidence, trying, apparently to run out the clock—without any awareness that this clock isn’t measuring open-ended time the way Trump’s other lawsuit clocks do. This clock runs out at noon, January 20, and that’s it.

                  1. You don’t think Biden would and should undertake every legal means to win the election? He would leave legal ways to leave the election on the table because…he just doesn’t want the presidency?

                    1. Lawsuits are one thing and meritless ones can be thrown out, as some of Trump’s have been. But making baseless claims of fraud and, in some cases, demonstrably false claims of fraud is highly corrosive to democracy. Biden wouldn’t do that. In fact, no other President has done that after losing an election….from the White House. It is atrocious behavior. It is desperate. It is highly suggestive that he is worried about what happens afterwards because he knows he has broken rules. I would imagine there is a reason Eric and Don Jr. are the most aggressive in pushing Trump to fight the results of the election. And I doubt that reason is solely currying favor with their father who favorably responds to bootlicking and sycophancy.

                    2. Biden and Democrats have been making meritless claims of “voter suppression” without evidence of any actual voters being suppressed for ages.

                    3. Armchair, why do Democrats need indirect evidence of voter suppression when they already have confessions from the Republican operatives who do it?

                    4. Before Armchair Lawyer mumbles about ‘baseless claims of voter suppression,’ he should review that consent decree and the evidence that inclined the Republican Party to voluntarily accept the consent decree.

                      Or Armchair Lawyer can continue to spout nonsense that thrills gullible Trump supporters and the roundly bigoted fans of a white, male, conservative blog.

            2. Remember the end of the Roman Republic. The Optimates wanted Caesar to give up Imperium by returning to Rome to run for election as Consul. By giving up Imperium he would be open to prosecution…and the Optimates were all primed and ready to do this.
              The result…civil war and the end of the Republic.

            3. You make quite a leap from “any potential crime, no matter how weak the case,” to any crime at all.

              Maybe knowing you will be prosecuted if you commit serious, provable, crimes will encourage you not to do so. Knowing you won’t be isn’t exactly a constraint on your behavior.

        2. “I think it’s a necessary evil for the peaceful transfer of power.”

          Who figures better Americans are interested in pointers from the “lock her up” crowd?

          My next contest: Which comes first for Trump: Bankruptcy, arrest, or 300 pounds?

          1. They chanted “lock her up,” but did Trump really do anything to try and prosecute Clinton?

            1. Great question.

              But bad answer for Trump and his base of deplorables.

              1. That is what is sadly humorous about this. The ones quiet about “lock her up” with respect to Clinton and then, most recently, Gov. Whitmer, are upset Trump might be in legal danger? Rich. Shameless.

                I agree it is not good for the country for an outgoing President to be prosecuted by the new administration. But it’s also bad to overlook crimes simply because some people might be upset. The bar should be high to prosecute, but not insurmountable. It all depends on what they find. And NYS….well, that’s different and if Trump committed tax fraud or whatever other crime they are investigating, well, being President is not a get out of jail free card.

                1. Can you imagine what Trump would look like six weeks into a term of incarceration?

                  No spray tan. No hair dye. No whatever that thing on his head is. No Kentucky Fried Chicken . . . oh, wait . . . he might lose a couple of pounds!

                  Look at the bright side, clingers. A slimmer, trimmer Trump.

        3. One of my close friends point out that this is why Benjamin Netanyahu is so desperate to hold on to power in Israel; the norm there is to not avoid prosecuting past prime ministers, and Netanyahu likely has committed crimes.

          I for one am split. I’d like to see Presidents punished for criminal acts so they don’t commit crimes. At the same time, the unintended consequences and the perverse incentive for political opponents to prosecute means that it could be a bad idea.

          1. There are criminal acts and criminal acts.

            Take the Flynn Prosecution. Flynn arguably “lied” to the FBI, even though the FBI knew everything ahead of time, didn’t think Flynn was lying, and a whole bunch of other stuff. There’s no verbal record, just the written notes of 2 FBI agents.

            Based on that, you could prosecute every ex-president for “Lying” to the FBI. Want to be in 8 years Obama never said ANYTHING to an FBI agent that couldn’t be constituted as a lie?

            1. It gets worse.

              Remember al-Awlaki? Obama ordered him killed in a drone strike.
              A US citizen, and former resident of Virginia.
              Khan and Kenan were former North Carolina residents before heading overseas.
              Al-Awlaki’s son went overseas out of Colorado.

              Can Republicans in those states arrest Obama for murder? After all, even right-wing sources like the New York Times and the ACLU called the killings unjustified murders, illegal executions of Americans without due process or trial.
              If not, why not?

              What about campaign finance? No campaign is EVER 100% clean; every campaign ends up paying fines. What if a state chose to prosecute for jail time rather than just fines?

              Hell, even traffic laws can become the means of abuse. Want to restrict people from travelling to other states based on political party? This is how that happens!

                1. I think you are missing what many of us are saying. I don’t think Trump should be prosecuted for anything anyone can dream up.

                  I do think he should be prosecuted if he has committed serious, clear, crimes for which there is strong proof.

                  I’ve cited tax evasion as an example. So let me ask. Suppose there is evidence that Trump has criminally evaded taxes – filed false returns, falsified documents, whatever. Would you favor a prosecution, or should everyone just shrug that off?

                  1. I think Trump should be treated exactly the same as any other American would be. Especially if it’s post election.

                    I think if Trump prosecutions are given “special attention” and “Extra Resources” because it’s “Trump”….That’s a recipe for political-based prosecutions. Especially if it’s done after his presidency.

                    Let’s talk about tax evasion for example. There’s a lot of tax evasion out there (Roughly 1 out of every 6 federal dollars). And Trump has obviously been targeted by the IRS before, and under audit, primarily for operations before he was President. As is appropriate, he does make quite a bit of money. To date, the IRS hasn’t found anything really serious enough.

                    What would be inappropriate now is a vast effort (Say another $10 Million dollar investigation) dedicated to “finding and proving” Trump’s Tax Fraud, because it wouldn’t happen to a normal citizen. It would also siphon resources away from more promising tax fraud investigations. That doesn’t even account for another Ted Stevens like snafu…one which is entirely too likely.

                    1. And Trump has obviously been targeted by the IRS before, and under audit, primarily for operations before he was President.

                      No. He hasn’t been “targeted” in any special way.He’s been audited, no doubt because of the complexity of his finances as well as his apparent wealth.

                      To date, the IRS hasn’t found anything really serious enough.

                      We don’t know what they’ve uncovered that doesn’t reach criminal misconduct. We do know there is at least one roughly $100M case still being disputed, but that’s a civil matter.

                      As I’ve pointed out repeatedly, a tax audit is not a criminal investigation. It’s not nearly that thorough, and the audit staff is seriously undermanned, which accounts for the problem you refer to. It often won’t uncover criminal evasion – falsified documents and the like.

                      It’s entirely possible that an actual criminal investigation – prodded by information provided by Cohen or maybe Wesselberg, or who knows, would turn up actual criminal evasion.

                      What would be inappropriate now is a vast effort (Say another $10 Million dollar investigation) dedicated to “finding and proving” Trump’s Tax Fraud, because it wouldn’t happen to a normal citizen.

                      What would be appropriate is the IRS acting on serious evidence of fraud, assuming such exists, and seeking recovery, and referring the matter, if appropriate, to DOJ for prosecution. That would happen to a normal citizen if the evidence arose. Being President is no excuse.

                      And if facts come out that wouldn’t have if he had remained Citizen Trump, too bad for him. Nobody made him cheat, and nobody made him run.

          2. I’ve heard the same thing from a cousin’s husband who is a Palestinian Christian.

          3. Since Netanyahu is currently under indictment, with his trial scheduled to resume in a few weeks, this theory seems a bit dubious.

      2. They’ve spent 4 years fomenting a white hot hatred of Trump among their base, and anybody they could influence.

        Nobody fomented anything. Trump earned the hatred.

        He certainly earned mine.

        1. And you, of course, stand for everyone in the country.

          1. He is also the objective arbitrator of whether someone is deserving of hatred or not.

            It’s on his business cards.

            1. Haters hate because of who they are themselves: they are full of hatred.

              The justification talk is nonsense. There’s always a justification. There will always be a justification.

              1. Why are racists racist?

                Why are gay-bashers gay-bashers?

                Why are misogynists misogynists?

                Does superstition justify bigotry?

                Clingers are better off when they avoid these subjects.

          2. Just my opinion.

            1. You don’t have to be told by anyone, much less “the media” to see that Trump is a walking, talking dumpster fire of a human being.

              1. . . . or, as the depleted human residue of the Clingerverse sees it, the Greatest American President!

  4. Neither the President nor the Attorney General can control what the State of New York does. There might be reasons to leave matters to them.

    1. I suspect the bargain he will be offered is, “Go back to your private life, and drop out of politics entirely, and we’ll call off the dogs. Try to continue being a political force, and we’ll destroy you, and, more to the point, your family, too.”

      How he’ll react to that, I don’t know.

      1. Or prosecutors could act as the evidence inclines and Trump could be free to act as he wishes — until he is taken into custody.

        1. The one positive thing I can say about you, is that you’ve really clarified for me how the left manages to keep building gulags and death camps. I understood it on an intellectual level before, but could never see any of the leftists I knew actually doing it.

          You, I could see doing it.

          1. You could see me building gulags and death camps.

            Prof. Volokh considers me so dangerous he censors me repeatedly.

            The world sure is scary for movement conservatives.

            Anybody need a binky?

          2. Death camps. Fuck you. What are you talking about?

            Do you think Trump should just be allowed to skate if he clearly violated NY or federal tax laws?

            Do you worship him that much?

          3. The other leftists on here would appoint him to oversee the gulag policy and them they’d pretend they don’t know anything about it.

    2. Do you ever have anything intelligent to say, yellow dog?Trump would be wise to have AF1 fly him to Moscow on Jan 19

  5. So politicians should be exempt from prosecution if evidence suggests crimes were committed, because the nation is divided and who wants to read all those tweets. Got it.

    1. More like Presidents have better things to do than to focus on prosecuting former Presidents.

      SDNY is already knee deep in investigating Trump. I’m sure plenty of other state AGs have things they want to do to Trump in mind as well.

      1. Biden wouldn’t be doing the prosecuting.

        1. Yeah, that’s a pretty silly argument. Administrations can walk and chew gum at the same time, the President isn’t doing everything singlehandedly.

        2. No, he wouldn’t, but he has better things to do than manage the Republican pushback. Chasing after Trump would just burn what little goodwill that Biden supposedly has with McConnell and being colleagues with him for decades.

          1. I think you overstate McConnell’s affection for Trump — by asserting it exists.

            1. See, we can occasionally agree.

  6. Thankfully the majority of state AGs are Republicans and can focus on investigating Biden, starting with those emails you can’t read about on Twitter.

    1. We’re not currently on Twitter, so feel free to share a link.

  7. He ain’t fucking “President” yet.

    1. No, but Kamala will.

      1. ugh, that is not a pretty image.

        Would Biden respect her in the morning?

        Would he remember?

        1. Don’t worry, Sleepy Joe can still bench 180.

    2. Why so cranky, Darth? Scary visions of your racist hero being marched into a police station for booking?

  8. Then there’s AOC’s promise of the “Trump Accountability Project”, which tries to blacklist anyone who worked with the Trump administration…

    https://nypost.com/2020/11/06/aoc-facing-heat-for-wanting-to-archive-posts-by-trump-sycophants/

    1. AOC should be expelled from the House. She is a toxic, neo-Marxist whore.

      1. Careful now, your misogyny is showing…

        1. That comment was entirely compliant with the Volokh Conspiracy’s civility standards, as enforced by the Volokh Board Of Censors:

          1) did not use the term “sl@ck-j@w’

          2) did not make fun of conservatives

          3) did not use the term ‘c@p-succ@r’

          4) was written by a right-winger

          so . . . no danger of that post being removed or its author banned.

          1. I do have to say, it is quite rich for Eugene to have banned you for incivility and using offensive terms when he allows things like calling AOC what Behar called her. And if he decided such censorship (or enforcement of community standards) was too much work or a bad idea in the first place, then he should publicly say so and, frankly, apologize. But allowing that sort of thing or others on here calling for the death of all liberals and similarly offensive statements while censoring someone for personally insulting him…..that is a really pathetic look.

            I will say, at least he appears to have understood he was wrong, because he isn’t re-banning you. That’s something.

            1. He’s a paltry, partisan political hack and a huge hypocrite with respect to ostensible championing of free expression.

              Until he apologizes and/or rescinds the ban(s), I shall believe it to be a public service to direction attention to those points.

              He can express regret for the mistakes; he can accept that I will continue to publicize the relevant circumstances; or he can ban me again (although that would not preclude effective publication of descriptions of the relevant circumstances where warranted, using other venues).

              And, before the clinger sycophants try to rescue their hero by questioning my account of repeated, viewpoint-controlled censorship over a period of years: I have the emails. So does the author. And, I sense, so does the author’s email administrator. And mine. Even Rudy Giuliani and Pam Bondi could handle this.

              1. None of the proprietor’s sycophants stand to defend their hero’s honor?

                Ouch.

                Very ouch.

    2. These people are putting lives in danger and we’ve seen they have no qualms using the institutions of government to attack their political opponents.

      I hope it doesn’t end well.

    3. I’m wondering if the Democrats actually have enough self control to avoid over-reaching, and provoking a backlash they can’t muster enough fraud to negate?

      The absolute best thing Biden could do for the Democrats is to spend 4 years being reasonable, and just avoiding any major screwups. He could count on the media to beatify him if he did that. And a narrowly Republican Senate would give him an excuse to govern from the middle.

      Historically, the Democrats win control of government, and then do something totally batsh*t crazy, like take over a sixth of the economy, or ban a load of guns, and in the next election get ousted from power, and spend a couple election cycles in the desert, while the voters gradually forget why they put Republicans in charge. We’ve been through several cycles like that now.

      All they’d really have to do to stop that cycle is to govern reasonably, but I don’t think it’s in their DNA anymore.

      If they’d gotten a solid majority in the Senate, too, they could have entrenched themselves to the point where no backlash could oust them. But they didn’t, and so they actually do have to worry about it.

      But my expectation is that they actually think their madness is popular, and they’ll do something to blow it again.

      1. How many decent, educated, reasoning, successful, modern Americans are in the market for pointers from half-educated, stale-thinking, downscale bigots?

      2. Nobody took over 1/6 of the economy. That’s ridiculous.

        1. PPACA revamped the rules for payment of health care by mandating and heavily managing health insurance, a field that accounts for 18% of the US GDP in 2019.

          So, technically, he’s wrong – it’s actually MORE than 1/6th of the economy.

          1. “Revamped the rules” does not equate to “took over.”

            1. Telling a business what products they must sell, at what price, to who, does. It’s classic fascist economics: Leave the industry nominally in private hands, but regulate it to the point where it’s effectively government property.

            2. I’m sorry, but as Brett said, why the government starts declaring that a business must sell this product at that price to these specific people, then yes, the government has taken over.

              The rule changes were so dramatic that more than 85% of people had substantial changes to their plans (at least). That’s according to the NYT, by the way.

              By any standard, when at least 85% of the market has to undergo substantial changes due to your new regulations controlling product availability, product pricing, and customer choice, then YES, it equates “took over”.

      3. Mitch won’t allow Biden to govern at all, even from the middle.

        1. Mitch won’t allow Biden to govern at all

          Oh, sweet — the man isn’t even sworn in yet, and you’re already casting about for excuses for why years 48-51 of his political career likely will be at least as impotent and incompetent as the first 47.

          And starting with such a silly one at that. Do we need to bust out the Schoolhouse Rock videos again?

        2. It would be fair to treat Biden as well as the Dems treated Trump.

        3. “Mitch won’t allow Biden to govern at all, even from the middle.”

          Counting your Georgia bigots before they are elected?

      4. I don’t think they can do it because their party is all about bogeymen and doomsday and making up stories.

        How can they govern like there’s no climate change doomsday while telling their believers it’s the end times?

        How can they keep their believers panicked about Covid without taking extreme actions against Americans in the name of Covid?

        How can they keep up the frenzied zeal about anti-racism without witch hunts for racial heretics?

        How can they pretend it’s still 1963 and Jim Crow is still here without taking any actions against Americans?

        How can they pretend gays are persecuted but just leave a quiet religious man alone to bake wedding cakes for people?

        How can they pretend to care about equity — meanwhile supporting government schools which are the most obvious cause of inequity — without finding and attacking another scapegoat?

        How can they keep making up stories about Russian conspiracies and not charge someone with something?

        How can they crusade about mythical rape culture without burning a few innocent male college students at the stake?

        How do people whose lives are all about hatred and fear and narcissism suddenly change into balanced, civilized, modern people?

        CNN and the others won’t stop. They need to keep telling dramatic stories to keep people watching.

        1. “How can they keep up the frenzied zeal about anti-racism without witch hunts for racial heretics?
          How can they pretend it’s still 1963 and Jim Crow is still here without taking any actions against Americans?
          How can they pretend gays are persecuted but just leave a quiet religious man alone to bake wedding cakes for people?”

          The best part of the most recent half-century has been watching bigots like you go from holding the upper hand to becoming sniveling, defensive misfits.

          Open wider, Ben.

    4. I’m not sure I have much say in the matter, but I would object to my firm hiring any DOJ lawyers who led the charge for his expansive views of executive authority or otherwise contributed to his lawlessness.

      This has been an extraordinary four years, and it has been so only because some people put their personal ambitions above any commitment to our democratic principles and institutions. They do not deserve to pull million-dollar salaries at major law firms. They deserve to be shunned.

      1. ” I would object to my firm hiring any DOJ lawyers.. ”

        I see. That’s very tolerant and forgiving of you. Let’s see where your proposed system of blacklisting leads.

        1. Your firm becomes more ideologically compact. Having the right politics is key. Diverse views are “not desirable”.
        2. Those DOJ lawyers who may have been hired, now aren’t. Rather than moderate any views by working with your firm, instead they grow bitter and more radicalized being excluded for simply working in an administration and supporting their client.
        3. Next time a GOP administration comes around (And they always come around), they hire these more bitter and radicalized ex-DOJ lawyers, who now have a grudge.
        4. “Moderates” don’t work for the new GOP administration, out of fear they’ll be blacklisted if they do, leading to further hard-line lawyers

        So that’s just the start. Congrats. Your policy led to having all hard-line GOP lawyers in the next administration with no moderates. Next comes the inevitable backlash.

        How do you feel about this…”Anti-tolerance”….

        1. I think I’ve been very clear about why I think they should be shunned.

          It’s not about having the “wrong politics.” It’s about going into court, arguing that no one has any right to oversee the actions of the president. That no one has any right to second-guess how he spends appropriated funds. That the president is absolutely exempt from any kind of criminal investigation or civil suit while in office. That the DOJ should act as the president’s law firm. And on and on.

          What I am talking about is shunning lawyers who used their skills to destroy America as we know it. Not simply “conservatives.”

          1. You realize, that’s exactly what Lawyers are supposed to do? Make the best case possible for their client?

            That the lawyers in Obama’s DOJ did the same thing, arguing for extensive federal powers, that Obama had the right to determine the Senate’s own rules, that Obama “Had” to ignore federal laws?

            Your type of argument is the same type that people would use to lock up defense lawyers, because they’re defending rapists and murderers, and helping them get out of jail on technicalities…

            1. Barr isn’t the Preisdent’s lawyer. Disbarr Barr.

              1. The Attorney General is the Chief Lawyer to the Federal Government of the United States.

                The President is the Head of the Federal Government of the United States.

                1. The President is the head of the executive branch of the federal government. And your two statements certainly don’t support the position that the attorney general is the President’s lawyer.

                  1. The AG is the lawyer to the US Government. The President is the head of that government. (Yes, the entire government, not “just” the executive branch. Look of “Head of Government”).

                    In regards to issues around government, the AG works for the President.

              2. No, the AG is the President’s brother. Oh, wait, that was the Kennedys.

                I meant, the AG is the President’s wingman. Oh, wait, that was Obama and Holder.

                If you can actually point to any objective behavior that has resulted in other lawyers getting disbarred and demonstrate how Barr did it, then go ahead, make your complaint! I wish you the best of luck. But when your arguments can be summed up as “I don’t like his politics” then trying to get revenge makes you the villain, not him.

          2. ” used their skills to destroy America as we know it.”
            A gross overstatement to justify ideological black-listing. Your no better than a McCarthyite to take that position.

        2. 1. Your firm becomes more ideologically compact. Having the right politics is key. Diverse views are “not desirable”.
          2. Those DOJ lawyers who may have been hired, now aren’t. Rather than moderate any views by working with your firm, instead they grow bitter and more radicalized being excluded for simply working in an administration and supporting their client.”

          Somebody needs to remind them at this point that there is no such thing as an unemployed lawyer, because lawyers can (and many do) practice alone, and not as part of a firm.

          1. Ah, the James Pollock school of thought, where no one is ever unemployed, because they can always just work for themselves doing their own thing, alone.

            1. I’m so sorry that you aren’t smart enough to get it.

      2. Simon they wouldn’t need a job from your firm. They could always become the Emanuel S. Heller Professor of Law at the University of California, Berkeley.

  9. As before, I have no objection to such a demand from a legal POV, but I see no evidence that Senate Republicans would be interested in spending political capital on saving Trump’s hide. Like the Murdoch media, all establishment Republicans seem to be dropping Trump like a hot potato. So I don’t think it’s going to happen.

    1. The establishment Republicans never wanted Trump in the first place. They wanted him to lose 4 years ago, and they wanted him to lose this year. He came in without being approved by the gatekeepers, without being one of them, a direct threat to the stranglehold they have over the Republican party.

      They just couldn’t say so unless they were retiring, because Republican voters didn’t agree with them.

      I’m afraid they’re going to think, “Thank God that’s over, life can go back to normal.” But that’s not over, and life isn’t going to go back to normal for them. It’s likely to just keep getting worse from their perspective.

      1. They sure didn’t act like they wanted him to lose.

        1. They already got their sixth conservative justice. What else were they going to get from him (that they even remotely wanted)?

          1. There’s always more tax cuts…

            1. Presidents don’t cut taxes. Congress cuts taxes (or not, as the case may be).

      2. The Republican party has been deeply divided for years, composed of businessmen who’d like to limit regulation and taxation of businesses on the one hand and social conservatives on the other. Meanwhile, the Democratic party is divided approximately 273 million ways, linked only by a common belief that government can (and should) solve problems.
        The Libertarian party, on the other hand, consists of Republicans who want to smoke marijuana legally.

        1. No description of the current conservative-Republican electoral coalition is complete — or even reasonable — without mention of the bigots. The cowardly conservatives who appease the bigots — that’s every Republican who is not a strident bigot — should be mentioned, too.

    2. “I see no evidence that Senate Republicans would be interested in spending political capital on saving Trump’s hide”
      Indeed!
      Once Trump is out, his only prayer is going into exile where the US has no extradition treaty.

  10. This post exhibits a great deal of empathy and sympathy.

    The empathy and sympathy of a child toward a 245-pound baby.

    1. Speaking of empathy, Pres. Trump now knows first-hand how many Americans have experienced the Republican pandemic response — he caught the ‘rona, lost his job, and is about to be evicted.

      1. He sees no reason why everyone else doesn’t just do what he did, hop onto a helicopter for a ride to a publicly-funded hospital for any treatment that was available, before hopping onto a helicopter for the ride back to the publicly-funded housing he shares with his family, and the round-the-clock medical care available there.

    2. Arthur, apparently you just can’t help yourself. You short-change Trump every time you post, and people get tired of it. Any expert carney weight-guesser would put Trump at 285, minimum.

      1. Watch that flippant tone, Lathrop . . . Trump fans just aren’t ready for humor — or for fun of any kind.

      2. Here’s another estimate in something I heard said : “The only way Trump gets to 270 is by losing 100lbs.” (That might be an exaggeration though)

        1. I probably would prefer to see Trump busted — bankrupt, penniless, hounded by judgment creditors, living on Social Security benefits (assuming he didn’t stiff that system, too) and Medicare/Medicaid — than incarcerated.

          That would be a good morality tale for America’s children.

          1. Nah. Send him to North Korea with a pallet load of counterfeit North Korean currency, and let him explain himself to little rocket man. Maybe even give him a parachute when he gets off the plane.

  11. Biden has pledged “issue an Executive Order directing that no White House staff or any member of his administration may initiate, encourage, obstruct, or otherwise improperly influence specific DOJ investigations or prosecutions for any reason.”

    Silly me, I thought that was actually their job, and doing otherwise was a crime.
    Of course, I also thought the ballots were still being counted, so pay me no mind.

    To quote Uncle Duke in Doonesbury – “Say, honey, will you pass me that box of cartridges?”

    1. That’s so he can say it’s out if his hands, when his hand picked men go after Trump.

    2. Silly me, I thought that was actually their job, and doing otherwise was a crime.

      How might “doing otherwise” be a crime?

    3. So when Trump encouraged and actually requested prosecution of Hillary Clinton and Comey, you acknowledge that was criminal, impeachable behavior?

      When Trump met with Flynn’s lawyers was that impeachable?

      When Trump publicly disparaged prosecutions against Flynn and Manafort and Stone, you are on board agreeing that that was improper influence of specific DOJ investigations and prosecutions?

      Glad you are on board with that. But, given this history of rampant abuse of White House power, it is a good idea to make the wall between the White House and specific DOJ investigations or prosecutions more legally solid.

      I am not so sure I would go so far as you and claim that Trump’s conduct in the Comey, Flynn, Manafort, and Stone cases are criminal and should be prosecuted. But we at least appear to agree that it was impeachable conduct.

    4. “To quote Uncle Duke in Doonesbury – “Say, honey, will you pass me that box of cartridges?””

      You think you’ll need a whole box to hit your own head at point-blank range? hint: put the barrel against the top of your mouth.

  12. I don’t see how anyone can promise anything at this point since we don’t know what crimes may have been committed and what evidence there would be to support a conviction. No doubt the career prosecutors at DOJ will do their jobs, conduct a full investigation, and then decide what changes, if any, should be brought. That’s the way the system works.

    For those complaining that the only reason there may be charges is that he’s president, yes and no. If you run for President you’re going to be investigated.

    1. The AG could commit not to seek an indictment of President Trump in the same way that Obama instructed the DOJ not to go after Dreamers. It’s all prosecutorial discretion.

      (There’s a separate question what would happen if the AG changed his mind, but that seems like piling hypos on hypos, so let’s not worry about that.)

      1. But with the dreamers, we knew exactly what they were accused of doing, so the decision to not prosecute them was made with eyes wide open. With Trump, we have no idea at this point what criminal activity may come to light. Any prosecutor who committed to not prosecuting until the facts are known would be committing malpractice.

        1. Well, presumably any commitment would have an (implied) exception for Trump literally murdering someone, or literally selling state secrets to the Chinese or the Russians. But beyond that we pretty much know what kind of crimes would be on the table, so it’s possible to apply a broad public interest test.*

          * Public interest test = the kind of test required by the English Code for Crown Prosecutors, which prescribes that the decision to prosecute should be based on an assessment of the prospect of a conviction and an assessment of the public interest in prosecuting. I assume that something similar exists in the US as well, but I don’t think I’ve ever seen it.

          1. DOJ uses the phrase “substantial federal interest”.

            https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution

          2. “Well, presumably any commitment would have an (implied) exception for Trump literally murdering someone”

            murder is a state crime, not federal, so federal immunity for murder charges won’t do him much good.

            1. Fair point, although I’m sure there’s some kind of federal statute criminalising murder in interstate commerce, or murdering someone across state lines, or procuring murder in interstate commerce, etc.

              1. There’s murder in the national parks, and assassination of the President, both of which are federal crimes. But Trump ain’t going to any national parks, and if he decides to assassinate the President, he can’t be prosecuted anyway.

      2. The dreamers were violating a civil law, not criminal.

        1. Well, to be truthful a fair number of them were likely violating criminal law as well, or they’d be by far the most law abiding group in history.

          1. 1. Violating criminal law disqualifies one from the Dreamer program.
            2. Data does show that immigrants commit less crimes.

            1. And 3, even those dreamers who did commit crimes could still be prosecuted for those crimes

            2. Oooh, this one again!

              2. Data does show that immigrants commit less crimes.

              Yaaaay! Another completely dishonest person deliberately conflating the tens of millions of legal immigrants – people carefully filtered to exclude the criminal, poor, uneducated, or generally suspicious and untrustworthy – with illegal immigrants.

              It’s almost as if this is a catechism of the Defenders of the Illegals, rather than a meaning argument.

              1. Data DOES show that immigrants commit fewer crimes. This is because the ones who do commit crimes get deported. They may or may not commit more crimes, but if they do they aren’t doing it here. Citizens, on the other hand, get released on bail or ROR into the community.

                1. And it’s another sucker come to try the same pitch. It’s almost if the action is instinctual in these creatures – even though they’ve been exposed, they cannot help but repeat the same behavior over and over again.

                  Illegal immigrants commit crimes at a significantly higher rate than native citizens. Native citizens commit crimes at a significantly higher rate than people carefully filtered to exclude the criminal, poor, uneducated, or generally suspicious and untrustworthy.
                  It’d be great if we could exile repeated citizen offenders, but that kinda fell out of practice in the 20th century.

                  1. “And it’s another sucker come to try the same pitch.”

                    reality is consistent. Such a shame this comes as a shock for you.

                  2. “Illegal immigrants commit crimes at a significantly higher rate than native citizens.”

                    repeating your stupid claims doesn’t make them truer.

            3. 1. Violating criminal law disqualifies one from the Dreamer program.

              Might be accurate to say that it can be disqualifying. You don’t lose DACA eligibility until you commit your third misdemeanor.

              1. You don’t lose your birthright citizenship even after 3 felonies.

          2. Here’s your solution, in three parts.

            First, pass a statute allowing Federal District Judges to order deportation in addition to prison time for illegals convicted of felonies. Skip right past the immigration courts and deportation hearings and all the opportunities to show that some aspect of law allows the person to stay in the U.S. Being a non-citizen felon invalidates all other considerations.

            Second, pass a statute establishing a non-citizen resident category with a path to naturalization. To qualify, applicants have to prove they’ve been here for several years without being convicted of any crimes, and people in this status would be ineligible for government assistance programs (except school for the kids) and they wouldn’t be assured of anything except being eligible to work here legally. After enough time in this status, with no criminal activity, let them take the naturalization test (in English) and become lawful citizens if they pass.

            Third, for people outside the country who’d like to be here, allow sponsored work visas so that if they can support themselves, they can come here to work. regulate the employers to limit the opportunity for using outsiders to displace American workers. This program would have limited duration for residency and no direct path to permanent residency.

            1. Fine with me, but probably not fine with many other people.

              1. I want something that works, not something that idiots are fine with.

      3. “The AG could commit not to seek an indictment of President Trump in the same way that Obama instructed the DOJ not to go after Dreamers. It’s all prosecutorial discretion. ”

        I don’t remember when Obama was AG. When was this?

  13. A Truth & Reconciliation Commission would be an acceptable compromise, given realities. Immunity in exchange for sunlight.

    There are a lot of stinky corners.

    But hey, there is obviously spare time and labor for it. Bengaaaaaazi went on for how long?

    1. I discovered recently that Archbishop Tutu is still alive and (more or less) well. That definitely cheered me up for a good day or so.

  14. Interesting thought from someone I follow on Twitter:

    I can see the logic of President @JoeBiden pardoning President Trump provided Trump lists out which specific crimes the pardon should cover.

    1. Can we make deportation a condition of this hypothetical pardon?

      1. Plus payment of all back taxes due, with interest and penalties,from Trump and the Trump Organization, and the Trumplings, who have to go with him. Oh. and no Presidential pension.

        1. “the Trumplings, who have to go with him.”

          No, no, no.
          Trump’s kids get put in cages, and they all get separated from each other.

  15. We have every reason to believe that Trump’s administration violated the law, in an almost systematic way. Let the DOJ lawyers do their work and bring their charges.

    Isn’t that what Barr’s DOJ has been doing, with the Clintons and the Bidens? Investigating whether any crimes were committed in the course of the Russia investigation? Where was all of this nonsense about magnanimity and saving the country from further divisiveness, then, Josh? Are our memories so short?

    Trump has spent the last four years directing the DOJ to investigate and, where possible, prosecute a long list of perceived enemies. He has destroyed dozens, perhaps hundreds, of government careers for no reason other than to soothe his ego. And Barr has actually tried – failing only because the evidence hasn’t seemed to pan out. Biden should promise to let the DOJ act independently and to do its work. But we shouldn’t make the mistake of pretending none of that criminality and venality never happened. Doing so would only inculcate a system of corruption.

  16. The DOJ Criminal Division (McGahn partner) and Civil Rights Division (Lois Lerner BFF) are led by Democrats so we know there will be no justice from the DOJ.

    That’s how you know justice gets dispensed these days. What is the political affiliation of the people at the DOJ and who is harmed by the crimes.

    Just like how we know the results of court cases. Same logic.

    1. “The DOJ Criminal Division (McGahn partner) and Civil Rights Division (Lois Lerner BFF) are led by Democrats so we know there will be no justice from the DOJ.”

      The DOJ is led by Bill Barr, a Republican, so we know there will be no justice from the DOJ.

  17. I think the nominee could just pull a Barrett and refuse to answer any questions at all.

    That seems to work. Besides, how can the nominee commit at all? They wouldn’t know what might come up.

    As for me, I favor prosecuting clear crimes, but letting the marginal political stuff go. The best example is tax evasion. Nothing political about it, and you’re going with documents, tax returns and the like. No reason Trump shouldn’t be prosecuted if the evidence supports it.

    1. But don’t you get it? Prosecuting Trump for tax evasion “would foment years of bitter division”, because tens of millions of Americans would instantly come to believe that paying taxes is for losers, and that an honest entrepreneur like Trump shouldn’t be punished for taking advantage of loopholes in the law.

      1. Let’s grant your claim.
        The previous administration selected tax evader Tim Geithner to be the Secretary of the Treasury – the guy in charge of handling the government’s money.

        If the previous administration could not only refuse to prosecute the guy, but then give him a Cabinet position where he’d be in charge of regulating others committing his same crimes, it becomes very difficult to argue that “tax evasion” is something that absolutely MUST be prosecuted, even if it means shattering the norms by pursuing the outgoing President.

        1. Funny how “norms” suddenly get invented or disappear based on people’s convenience…

          1. When prosecuting the loser of an election becomes standard, people stop losing elections.

            Some norms matter, some don’t. Not being rude in a profession that is mostly talk is a “norm” that pleases the talkers, but serves no important point.
            Not running a legal persecution campaign against people who disagree with you is a norm that prevent civil war.

            If you truly cannot understand the difference between these two, please step back and think for a few minutes about it.

            1. The key differentiation is whether you’re prosecuting someone for losing the election, or because you think you can prove criminal acts to a nonpartial jury. The threat of punishment is what keeps psychopaths from committing more crimes. If you establish that there will be no punishment for wrongdoing, you authorize wrongdoing.

              1. “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.”

                1. If you give me six Internet comments written by a stupid person, they will remain stupid.

          2. “I think the nominee could just pull a Barrett and refuse to answer any questions at all. ”
            But bureaucrats don’t have the excuse that judges have.

        2. Geithner was not guilty of criminal tax evasion. Period. He carelessly failed to pay what amounted to self-employment taxes.

          “People make mistakes and commit oversights,” said Republican senator Orrin Hatch. “Even the most intelligent and gifted, two adjectives that certainly apply to Mr Geithner, make errors in their financial dealings.”

          He was approved by the Finance Committee by an 18-5 vote.

          So drop the lame whataboutery.

          1. Geither did not pay the tens of thousands in taxes he was required to, and then idiotically claimed that it was because TurboTax failed to work correctly.

            The fact that some Republicans also overlooked Geithner’s crime does not mean that it never happened.

            And it isn’t “whatabouery” because it is talking about two identical situations. Whataboutery is when you try to distract from one specific thing by pointing out some *different* fault by the speaker. What I’m doing is showing that there is an existing standard, and it isn’t that every political figure should be prosecuted for their taxes.

            1. “And it isn’t “whatabouery””

              Except that it is. Around the time you were ten, and you tried to excuse your behavior by claiming that “everyone else was doing it, too”, your mom should have explained to you that other people’s wrongdoing does not excuse yours.


              1. You didn’t address my point. In fact, I doubt you even read it, much less understood it.

                There is a clear standard in prosecuting political figures in DC, and it isn’t to prosecute every last one for every offense, including tax evasion. I’ve pointed to a very clear and extreme example of this, where the situation was similar to demonstrate. That is not “whataboutery”.

                “Whataboutery” or “whataboutism” is the most modern name for a logical fallacy in which you attempt to distract from the opponents claim by making a counteraccusation or raising a claim about a different issue.
                I’ve stayed on topic, and directly addressed the argument in question. How about you try the same?

                1. “You didn’t address my point.”

                  What I addressed was your claim that you aren’t engaged in whataboutism when you clearly were.

                  “I’ve stayed on topic, and directly addressed the argument in question. How about you try the same?”

                  Since you haven’t, let’s just pretend you didn’t actually say this.

    2. Have you ever prosecuted someone for tax fraud or tax evasion? I have. It’s not as easy as you might imagine. I remember that recent NY Magazine article discussing how a New York State tax prosecution will go down. What the article missed was the possibility (indeed likelihood) that the supposedly fraudulent deductions claimed by Trump (writing off the cost of the non-disclosure agreement with Stormy Daniels) are actually legitimate business expenses. Strange as it may seem, a lot of wealthy business people settle lots of bogus (and sometimes not bogus) lawsuits against them and get the opposing party to sign non-disclosure agreements in exchange for payment. The payments are legitimate business expenses.

      1. I’m pretty sure that a felony campaign finance violation can’t be written off as a legitimate business expense.

        He is, after all, unindicted co-conspirator #1 for the same felony that Cohen went to prison.

        1. Jason,
          But first it must be proved that the money transfer was in fact a felony violation of campaign finance laws. It is not so simple as shouting “gotcha” in the middle of a tax evasion case.

          1. It was Trump’s money, and the fact that it was a felony violation of campaign finance law was already established by the conviction of Michael Cohen.

            The only reason Trump wasn’t sent to prison for it, is because he was not yet indicted.

            Do you people pay attention to anything?

      2. Except it wasn’t a business expense. It was a campaign expense.

        And you are overlooking all the instances when he assigned his properties one value when seeking a bank loan, and another when paying taxes. Bank fraud, or tax evasion?

    3. AG isn’t SCOTUS. The AG isn’t going to rule on cases in the future.

      1. The AG may rule on whether to exercise prosecutorial discretion during his tenure. To prejudge that without even the benefit of investigation would be inappropriate.

  18. The Rs claim to be the “law and order” party, and using political power to obstruct a criminal investigation is quite a corrupt move. Millions of Americans are put in jail every year, sometimes with harsh sentences, and the Rs are like “they broke the law and there are consequences”. Trump would most likely be prosecuted for tax fraud, which is a non-political crime and people get prosecuted for that all the time. He should not be shielded. Politicians should not be above the law.

    1. Prosecuting Trump is likely largely a waste of time, because the prosecution can only strike the Trump-fan would-be jurors that don’t lie about being Trump-fans during voir dire. On the plus side, he’d be appointed a competent, honest lawyer to defend him, which would be a switch-up for Trump.

      1. Actually, right now in NYC, it would probably be very hard to find jurors who don’t hate Trump. I don’t think he has many fan-boys left in NYC.

        1. It only takes one.

          1. And you’re right . . . there probably is one person in Manhattan who likes Trump.

            Probably.

            One.

            Well, maybe.

            1. If there is one, he or she probably already has practice lying about it.

              1. You’re right. Ivanka can never speak the love that is Trumpian.

      2. The Floyd cops just got denied a change of venue, despite the fact that polling has shown that a majority of Hennepin County residents think that a) the police murdered Floyd, that b) the police are racially motivated, and c) police racism is a frequent and ongoing issue in Hennepin County.
        At least, according to the Star Tribune’s polling.

        I fully expect the NY AG to file charges for something trivial, and then spend her time trying to drag up process crime charges and stack a jury. I mean, she ran her campaign explicitly on finding something to get Trump on. I do not expect her to run an honest investigation. She hadn’t before she promised to convict him, after all.

        1. Your analysis just might possibly flawed by the fact that you have a tenuous grip on reality.

          1. An excellent analysis, based on… something. Truly worthy of you.

            Just remember to flush when you are done using it as your argument.

            1. Why would I claim your argument as my own?

    2. Have you ever prosecuted someone for tax fraud? I have. It’s not as easy as you might imagine.

      1. It’s not just tax fraud. It also appears to include bank fraud. For starters.

        1. There’s still the plain old fraud fraud around “Trump University”. Their defense of it can’t be fraud because nobody with any sense could have possibly thought we were telling the truth” is admittedly bolstered by Trump’s time as a politician.

  19. Nixon got away with his crimes, which did nothing at all to dissuade someone like Trump from committing worse.

    If we don’t prosecute Trump, then the precedent becomes “do what you want as President, because you won’t be charged with your crimes once you leave office.”

    That is a recipe for more corruption, and more criminality.

    1. Jason, I misjudged you. Based on our discussion about the electoral college I assumed you were a partisan hack, and after reading several of your other posts I now see that I was wrong.

      I still disagree with you on the electoral college but I’m glad to see you’re more honest than I initially gave you credit for.

      1. I mentioned multiple times that I don’t have a team, and don’t care for any political party at all. I appreciate your remarks, and writing them despite having no mandate to do so indicates that you have some integrity as well.

        Cheers.

  20. Which federal crimes? Could you be more specific?

    1. Tax fraud is the primary one.

      1. From before his time as President?

          1. I don’t think prosecutions for crimes committed before he was President raise the same concerns professor Blackman raised. There would be no need to ask an AG to avoid prosecuting the President for crimes that predate the presidency.

          2. Well for one thing, federal charges predating Trump’s term of office are going to be hard up against the statute of limitations by the time a Biden DOJ could start investigating them.

            1. Unless the SoL has been tolled while Trump was practically immune from state prosecution.

            2. Why would the Biden DOJ take suddenly such an interest in old potential tax fraud charges?

              1. Recently published (or otherwise provided) information?

                And if the returns are “under audit,” the crimes — which would evoke bank fraud, too — wouldn’t be so old.

    2. It took Mueller about 1,000 pages to cover just some of Trump’s crimes in the first year or so of his public life, so I’m going to go ahead and say “No, not in a single blog post.”

      1. Mueller didn’t list a single crime of Trump’s in any report, so I don’t know what delusion you are repeating here.

        1. Reading is hard, I know. Still, you should try it sometime.

          1. And yet you can’t name even a single crime in the report.

            1. Mueller has a youtube video from someone claiming to be a post office employee, with a blurred-out face, a scrambled voice, and a blurred-out ID badge claiming Trump committed Obstruction of Justice.

              That should be enough ‘evidence’ for you, right? Twit.

              There’s also the actual facts in the Mueller report of Trump committing Obstruction of Justice – just in case your standards change. When asked if Trump could be charged with Obstruction after he left office, Mueller (under actual Oath, not just on a zoom call with some right wing dipshit) answered “Yes.”

              I presume that you must live in some sort of assisted care facility, because you don’t strike me as the kind of person who could manage to button their own shirt without accidentally hanging yourself through incompetent idiocy.

              1. Mueller did NOT say that he thought there was sufficient evidence to charge Trump with obstruction of justice.
                He said it would be possible to charge a former President after he stopped being President, as opposed to being unable to charge him during the term in Office.

                Mueller’s report lists a bunch of circumstances that might, maybe, under some definitions, potentially resulted in the President or his staff exerting influence, maybe undue influence, upon people that, maybe, in some possible alternate reality, might have altered their investigation/testimony, and therefore if you squint hard and pray, it might justify an investigation for obstruction of justice. It does not, at any point, actually declare that Trump DID commit obstruction by *any* standard, or that Mueller and his team wanted to prosecute for *any* but were unable to.

                1. Incorrect, as usual.

                  Trump had 10 instances of obstruction, six of which clearly met all required criteria under the law to be charged with the crime.

                  No squinting required, you just have to not be a complete dolt.

                  1. Again, wrong. Your claimed “10 instances” isn’t there in the report. No such statement didn’t happen. Mueller didn’t say that.

                    The closest the Mueller report ever came to accusing the President of anything was by saying that Trump hadn’t proved that he hadn’t committed obstruction by potentially influencing people with public statements.

                    Yes, squinting – and delusion – is required to think that absurd investigation had enough to charge Trump with obstruction.

                    1. “Yes, squinting – and delusion – is required to think that absurd investigation had enough to charge Trump with obstruction.”

                      You can supply us all with all the delusion we might possibly want.

  21. Prosecuting Trump and his Trumpettes would be the dumbest waste of political capital an incoming President could do; it would create instant martyrs, get the GOP Senators’ backs up, make any Senator who voted for a Biden nominee an instant traitor, and distract Democrats from everything else.

    I’m all for it. The more government is tied in knots, the less it can meddle.

    1. In the US criminal prosecutions are not made by politicians, but by career prosecutors. What you said is Exhibit A as to why.

      1. You must be joking. Do you really believe that prosecutors are not politicians? How do you think they got into office, by civil service exams? How do you think they got into higher political office, by civil service exams? Why do you think Presidents replace prosecutors, because they failed the civil service exams?

    2. Why would GOP Senators protect Trump when most of them won’t have to worry about any kind of focused right-wing populist challenge until 2023 at the earliest?

      1. Because just as Pelosi and Biden are beholden to their extreme wing, so are Republicans beholden to their Trump wing. Do you think all the Trump voters will suddenly disappear if he loses? No wonder you don’t understand Trump or his voters. A more unrealistic political naiveté is hard to imagine.

        1. Trump voters aren’t going anywhere, but they’ll also not have actual influence until they have a presidential nominee to unite behind. Until then they’re diffuse and easy to ignore.

          As for Pelosi and Biden, whether they can ignore the AOC/Bernie wing of the Democratic party or not remains to be seen. That’s the big fight of the upcoming months. (And will presumably depend a great deal on what happens with those Georgia senate races.) Either way, I’m not sure why you think the power balance within the caucus works the same way as the power balance between elected representatives and different parts of their voter base.

          1. Republican and Democrat partisans are sooo different, of course, how could I not see that! The Republicans just fade away, while Democrats stick around forever.

            It took Hillary partisans three years to trump up the silliest impeachment ever. You think only Democrats can do that?

            1. “the silliest impeachment ever”

              Silly because he actually did what he was accused of doing, and if Trump did it “silly” is just one of the many adjectives that can accurately be applied, or “silly” because they impeached him without having enough votes to convict in the Senate?

            2. Republican and Democrat partisans are sooo different, of course, how could I not see that! The Republicans just fade away, while Democrats stick around forever.

              To reiterate, only in the Democratic party do the “partisans” control a substantial share of the caucus. (Which is, indeed, sticking around, albeit probably not forever.)

          2. “As for Pelosi and Biden, whether they can ignore the AOC/Bernie wing of the Democratic party or not remains to be seen.”

            A pedant might feel obligated to point out that Bernie isn’t actually IN the Democratic party. But a lot of his fans are, so never mind.

        1. AKA “the losers” or “the deplorables”

        2. “71 million voters”

          …backed a loser.

        3. “71 million voters”

          … is a lower number than the number who voted for the other guy.

    3. I doubt it.

      Say Trump committed tax evasion – underpaid his taxes by millions. No doubt some bitter-enders won’t believe it, but it still won’t be a good look for him, or politicians who defend him.

  22. I agree, the Federal government will likely leave Trump alone.

    New York State is another question, though. Trump won’t be able to threaten NY State prosecutors with DoJ any more.

    1. Quite possible, especially since Trump is likely to issue a slew of pardons that will cause any resolution to drag out for years.

      The interesting question to me is, who will be left off the list? Trump is not above leaving a scapegoat unprotected to absorb the blame when the details come to light. My money is on Rudy.

    2. Except, Trump couldn’t do that before he became president.

      And many of the “issues” were from before Trump was president.

      1. “Except, Trump couldn’t do that before he became president. ”

        Won’t be able to after he stops being President, either. That’s kind of the point.

        “And many of the ‘issues’ were from before Trump was president.”
        Lacking a functional time machine, it’s too late to deal with it then, and all we have left is dealing with it at an unspecified future time.

  23. There is some precedent for such a pledge

    A pledge to not interfere with independent prosecutorial decisions is diametrically opposite from a pledge to interfere.

  24. Bush/Cheney should have been prosecuted by Obama for pressuring CIA interrogators to use torture in order to elicit false confessions tying Saddam to 9/11…nothing Trump has done goes anywhere near that level of criminal conduct.

    1. Well, nothing that you know about, for certain, anyway.

      1. Torture to elicit false confessions to get us into an asinine war?? I can’t think of anything worse than that! Btw, that’s what has Greenwald and Taibi behaving so nutty because they don’t like how liberals have rehabilitated Bush’s image.

        1. “Torture to elicit false confessions to get us into an asinine war?? I can’t think of anything worse than that!”

          The other side does a MUCH better job of imagining than you do, just listen to their conspiracy theories.

  25. On Saturday evening, President Biden gave a speech promoting unity. I take him at his word.

    BWA HA HA HA HA!!!!!

  26. I would find it suspect if a AG nominee would not respond to such a query with “In the United States no one is above the law. By the same token, I will not approve political or frivolous prosecutions.”

  27. “Would President Biden’s Nominee for Attorney General Pledge Not to Prosecute Former-President Trump?”

    A get-out-of-jail-free card? Fuck, no! No amnesty!

    How about a pledge not to prosecuted him unless there’s probable cause to believe that a crime has been committed, instead?

  28. I would prefer Justice Department officials actually examine any evidence before vowing to not to prosecute possible suspects.

  29. It’s telling that no one mentions any actual crimes.

    Except tax fraud, as if Trump personally did his firms’ taxes. You think there are documents that prove intent to defraud? Where are they? Why are they still secret if they exist?

    Making up phony criminal charges to prosecute political enemies is the stuff of banana republics and communist dictatorships. It’s enlightening to watch people reveal who they really are.

    1. Obstruction of justice to begin with, for which there is far more evidence than your idiotic argument about Dems stealing the election. Notably, you never addressed any of the numerous flaws with your ‘evidence.’

      Be grateful that your delusions received any attention at all this time.

      1. Exactly the type of phony charge a communist dictator or banana republic generalissimo might put forward.

        1. Do you have anything to say other than garbled, regurgitated idiocy?

          No?

          Ok then, we’re done. I’ve wasted more of my time with you than you deserve in seven lifetimes.

          You’re the dumbest person on these boards, and somehow you’re proud of that.

    2. It is not just Trump’s tax records, the Manhattan DA subpoenaed Deutsche Bank and received their bank records about Trump in April. My understanding is that if the valuations of his assets are vastly different between his loan applications and his taxes it could be major trouble.

      And it is secret because Grand Juries are secret.

      1. Except when they are not

      2. Falsified valuations could generate legal problems — criminal and civil — in myriad contexts.

        And anyone who figures Trump provided one consistent set of accurate valuations to state taxing authorities, his partners, federal taxing authorities, zoning authorities, his banks, local taxing authorities, his prospective partners, insurance companies, and others also must be confident Trump is going to be declared winner against Biden before January 20.

        Difficult to predict which comes first — imprisonment or bankrupcy.

      3. Deutsche Bank was trying to find a way to unload their business dealings with Mr. Trump back before the election, and the analysis seemed to support the theory that they were stuck with it. Kind of limits his future business dealings if he’s cut off another possible creditor. Good thing he already has so much money that he doesn’t need anyone else’s!

    3. “You think there are documents that prove intent to defraud? Where are they? Why are they still secret if they exist?”

      lawyers have a duty of confidentiality that covers evidence of crimes.

      When it turns out that it can be proven that Trump had Rudy tell his stooges to drop off a laptop filled with fake evidence implicating Biden in corruption, that’s going to blow up in their faces.

    4. “Except tax fraud, as if Trump personally did his firms’ taxes.”

      Ever notice that you’re required to sign your tax returns? Why don’t you read what it says next to the signature line?

  30. ” Except tax fraud, as if Trump personally did his firms’ taxes. ”

    That explains why the only people in prison for tax fraud are hired accountants and lawyers.

    Is that a Regent, Liberty, or Ave Maria law degree talking; something you remember from a discount homeschooling outline; or what you heard on Hannity or Carlson last night?

  31. You’re getting lathered about the prospect of Trump’s incarceration, but how do we know Trump would object to prison life — he loves orange so much he spackles it on, and living off the taxpayers seems to agree with him.

    Lock him up!

    1. “Lock him up!”

      Nah, don’t lock him up. Deport him to, say, North Korea. Or maybe Iran.

  32. Prof. Blackman, thank you for acknowledging that Biden has won.

    The suggestion that confirmation of the next Attorney General ought to be withheld by the Senate unless the nominee makes ANY promises about whom he or she will or won’t prosecute, once confirmed, is extremely silly and unhelpful.

    You need to have better care for your dignity, sir. This lowers it.

    1. You need to have better care for your dignity, sir.

      I think that train left the station a long, long while back.

      1. Which makes tearing up the track even less advantageous.

  33. I’d be willing to bet that the Biden DOJ will not pursue charges against Trump. Just a guess, but it would be smart politically, particularly if state prosecutors are coming after him. Mouth platitudes about unity while state AG’s do the heavy lifting.

    1. Bingo. Let the state prosecutors take the first shot.

      I wonder whether the Secret Service procedural manual addresses protection of an incarcerated former president.

      1. They’ll give him house arrest, and he’ll complain that the warden won’t let him cheat at golf.

  34. I wonder if any Republican Senators would be willing to remove Trump from office if he uses the transition period to hold our country hostage to get the immunity that conservatives here are so eager to confer. I doubt it. Susan Collins will be concerned, while Murkowski will say Trump’s conduct is not appropriate but both will vote in his favor. I suppose Romney might actually vote to remove Trump, just like the last impeachment.

  35. I do tend to think that criminally charging Trump for his conduct in office would be unlikely to serve the public interest. I also have trouble thinking of a less productive way to accomplish that than to demand an ex ante pledge from the attorney general (nor, for that matter, one that would be more politically damaging to Republicans). Leave it to Prof. Blackman, I guess…

    1. Exactly. Ask the nominee for AG to pledge, no matter what, not to prosecute? That’s ridiculous. I mean, however unlikely, say that Trump after leaving office admitted to various serious federal crimes. Or states that specific members of the administration knowingly committed specific serious federal crimes and gives dates. Is the AG supposed to refuse to investigate, or prosecute?
      Yes, I don’t want politically-motivated investigations and prosecutions, and it’s reasonable to ask the AG how to avoid (maybe passing decision-making to someone else vis-a-vis AG Lynch after 2016 meeting with Bill Clinton?). But not ruling out in advance, without even knowing whether there are grounds for investigation let alone prosecution? Hardly.
      Oh, and a presidential pardon if I understand correctly could be conditioned on Trump admitting to the pardoned behaviour, denial = no pardon?

  36. Another thought, let’s say pledge made and then after appointed, AG says, on due consideration, that pledge was inconsistent with my sworn duties as AG. Therefore, I will not engage in a witch hunt, but do not consider myself bound by my pledge to refuse to prosecute no matter what.

  37. And just like that Mr. Fight Club turns to a peacenik.

  38. I think Trump committed crimes. Certainly, in the tax area before he became President. Those tax crimes may be either beyond the six-year statute of limitations or that statute of limitations may be lapsing so soon that an effective criminal tax investigation likely could not be pursued anyway.

    I am not so troubled by giving him a pass if the country is advised of the range of crimes for which he is being forgiven. That will require some level of investigation and reporting to the public as there was with Nixon.

    If we do as a country forgive Trump his criminal sins, I think the Government should pursue his civil liabilities to the Government. For example, in my area of specialty (tax), if Trump has substantially underreported his tax liabilities in past years, he should be required to pay if the statute of limitations is still open. The country should not forgive those past noncriminal tax liabilities and indeed should undertake serious investigations of them to quantify the tax liabilities, the penalties (the 75% civil fraud penalty where appropriate) and interest from the due dates of the returns involved. If there is civil fraud, the civil tax statute of limitations is open forever. I suspect that a true accounting (with penalties and interest) for his tax misconduct over the years (if a reasonably true accounting could be made) would wipe him out financially. But that financial cost is just the noncriminal cost of the choices he made.

    Finally, there is the issue of whether, in pursuing investigations of civil liabilities, Trump will lie thus creating new crimes (perjury, false statements or obstruction) for which, in my judgment, if he chooses to lie or obstruct civil justice after receiving some type of criminal forgiveness for past acts, he should be subject to prosecution for new criminal misconduct after leaving office. For example, if his civil tax liabilities (including penalties and interest) are investigated, his testimony (either under oath or not) will likely be required. If he is given a pardon or some other effective nonprosecution agreement (e.g., by immunity for the testimony), he has only the choice of answering questions honestly or telling the lie, which is a criminal act. Perhaps Trump could have some insanity defense that he is incapable of knowing truth from lies and, if he can establish that, he likely could not be convicted of a fresh crime for telling the lie or obstructing justice. But any criminality he commits after he leaves office should not be within the scope of any national forgiveness of his conduct prior to leaving office.

  39. How about prosecute him if he’s guilty and there’s enough evidence to convict? Indeed, why not set this as the criterion for deciding whether to prosecute *anyone,* high or low?

  40. “Remember, more than 70 million people just voted for Trump.”

    Impeachment was opposed by Republicans in part because it was deemed as an attempt to steal the right of the people to re-elect Trump. Remember?

    The people did not do so. Remember? Biden won. But, that isn’t enough to warrant even investigation to see if enough is there to prosecute using prudential prosecutorial discretion. Note even a landslide win by Biden could have meant let’s say 55M going for Trump. Lot of people.

    “And such a pledge–issued before January 20–could remove the incentive for Trump to self-pardon, and pardon his associates.”

    The same person who thinks Democrats have a conspiracy against him will trust a promise? Why stop at Trump? 70M voted for him! You have to promise to not to prosecute his top associates too. After all, there can be years of hard feelings if you go after his children, top advisors and so forth, right?

    I find the idea this will be much of an incentive to avoid pardons sort of silly. One bit more of remembrance. Trump has been blocking investigations for years now. It might have been helpful if we had a fuller sense of the evidence against him. If there was an actual risk of prosecution, maybe it would provide incentives to Trump to work with the government in return of a deal.

    Anyway, there is going to be years of hard feelings regardless, in large part because of Trump’s side not giving any quarter, down to thinking the election was a fraud. So, I think, remembering the last few years, this is not a great idea. Let’s have a full investigation without any agreements in which no matter what is found, prosecuting for even a mild punishment is apparently off the table.

    And, this isn’t “blood” really. That level of rhetoric underlines what Democrats will have to deal with here forward. It is leaving open a criminal prosecution. The Trump Administration is the one demanding blood. Three more executions scheduled, for one thing.

    1. Impeachment was opposed by Republicans in part because it was deemed as an attempt to steal the right of the people to re-elect Trump. Remember?

      I think you’ll find that a lot of people have no recollection of that whatsoever.

      1. Impeachment was opposed by Republicans because they were afraid that if Trump were removed from office, Mr. Pence might not be so easily swayed to appoint who they wanted.

  41. Will Republicans demand a no-prosecution pledge from Biden’s nominee for AG? That is a purely political question. I will not attempt to answer it.

    Should they demand such a pledge? That is a different matter.

    To my mind, no one is above the law. Not even Presidents, current or former. There may be an argument that even a corrupt President should not be prosecuted while in office. But the only argument against prosecuting a President after he/she leaves office is the slippery slope argument: if we prosecute a President for genuine crimes, it will lead inexorably and inevitably to the dreaded “criminalization of policy differences.”

    When I think about questions like these, I like to recall the words of John Dickinson at the Constitutional Convention: “Experience must be our only guide. Reason may mislead us.” When it comes to the prosecution of ex-US presidents, we don’t have any experience to guide us, of course.

    But what about other experience? First of all, there are prosecutions of state governors. I think there have been as many as 10-12 state governors–sitting or just out of office–prosecuted in the roughly 40 years since I began following politics closely.

    It doesn’t appear to me as if any of those prosecutions set a state off on one of those slippery slopes, but I don’t follow the politics of states where I don’t live closely enough to really know for certain. So, I would ask–are there any of you who are from states which have prosecuted governors in the recent past, who can say with confidence whether that was the case or not? I’d be especially interested to hear from people who are highly knowledgeable about the politics of states, like Alabama and Illinois, which have prosecuted more than one governor in the last 40 years.

    Another source of experience to draw on is that of other countries. Are there any countries where the criminal prosecution of a head of government, or an elected head of state, has set off the kind of slippery slope I mentioned above?

  42. I’m warming to the idea of a Biden administration declaration that it will return to American taxpayers — in equal shares of a few dollars in tax credit to every citizen — all amounts recovered by the federal government from the Trump family consequent to tax fraud, bank fraud, and insurance fraud investigations.

    Call it ‘@RealTrumpTaxCut’

  43. Over 150 years ago we made this mistake and have been paying for it ever since.

    In 2009 we made the same mistake, and have been paying for it ever since.

    I guess “GFY” pretty much covers my feelings on repeating the mistake a third time.

  44. I don’t have any strong desire for a federal prosecution after a close election, but I don’t see any reason for a pledge without significant concessions from the GOP Senate – such as confirming the President-Elect’s cabinet and agreeing to implement his proposals regarding stimulus plans and COVID responses.

    I’m not sure if Trump loyalty is strong enough to overcome all objections to Biden’s legislative agenda, but divisions in this country are only going to heal if the Senate acts in good faith to allow the government to function.

    1. ” divisions in this country are only going to heal if the Senate acts in good faith to allow the government to function.”

      You’re assuming that Senate Republicans want to heal divisions in this country. That’s probably a mistake.

  45. Fiat justitia ruat caelum.

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