The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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."
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 Katyal (@neal_katyal) November 4, 2020
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.