Prosecute? Start With Records

Terry H. Schwadron

Dec. 24, 2020

Joe Biden reportedly has been torn about whether, as president, his administration should consider prosecuting citizen Donald Trump after he leaves office and the protections it has afforded.

After all, the thinking of his group seems to go, Biden can’t very well put himself forward as a healer of divides while appearing to prosecute his predecessor. But then, he can’t easily just ignore some of the legal excesses of Trump’s time before and during office without appearing to be saying that some people, indeed, are above the law.

So, we know we can expect that Middle Road Biden will seek to distance himself from the Justice Department and the Attorney General he names in hopes that a walled-off, independent set of attorneys will come up with the right decision — along the lines of leaving important coronavirus decision-making to the advice of scientists.

And, Biden, like the rest of us, knows that New York State, for one, is not going to hang on the horns of his perceived dilemma, and will be moving ahead through multiple investigations to pursue allegations of tax fraud, campaign finance and legal misrepresentations that preceded Trump’s years in the White House and continued to the present without asking Biden’s permission.

The only problem with all this perception of distancing himself is that, politically at least, Biden will be tagged with prosecuting Trump no matter what he does.

And Trump himself will help in all this by continuing to do his best to seek shortcuts around paying corporate and personal taxes and by continuing to play up the conspiracies that he seems to love to spin.

Open Them Up

In that regard, Paul Blumenthal of Huffington Post seemed to have an interesting set of suggestions for the incoming president. He can simply open the books to independent prosecutors, Congressional oversight committees, journalists and the public, and let the chips fall where they may.

“If President-elect Joe Biden was inclined to prosecute Trump, his only dilemma would be where to start,” argues Blumenthal. Justice has declined to look at hush-money payments to Stormy Daniels and others deemed campaign finance violations, at criminal obstruction of justice counts detailed by the Mueller investigation, and loads of financial issues from personal business practices to the inauguration. But most of the information has been based on news reports with original documents kept hidden.

Just by ordering a preference among federal agencies for open records under current Freedom of Information laws, Biden could usher in a level of transparency that by itself might produce a river of information that has been withheld from Congress, for example. In turn, that information that could lead to a reckoning either in the political sense or in a legal sense might just bubble up quite naturally without Biden himself having to appear as vengeful. A presidential order for agencies to review and respond to congressional document requests regarding Trump administration actions could also involve reviewing and overruling the administration’s assertions of executive privilege, for example.

Resulting investigation might lead to reversal of policies that abused individual rights in child separation or lying to Congress or the introduction of political leanings into normally independent federal agencies, including Justice. Investigation might detail the blatant Hatch Act violations normally barring political activity by nearly every high-ranking Trump official.

We need review of how the Trump family profited, in blatant violation of Constitutional bars against personal gain by the president, from using its hotels and properties for diplomats and required government trips. Ethics all but died in this administration.

Yet, the call for official congressional reviews or a task force approach to looking over the last four years for new rules to stop excess obviously will be burdened by partisan politics.

Oddly, the one political Justice case Biden will inherit is the probe into the origins of FBI investigation of ties between Trump’s campaign in 2016 and Russian operatives, since Atty. Gen. William P. Barr’s goodbye gift to Trump was granting U.S. Attorney John Durham the status of special counsel under a law extending his independent probe into the Biden years.

Review the Rules

In any case, the watchdog group Citizens for Responsibility and Ethics in Washington has issued a report on openness in government directly in response to the Trump years, as has a coalition of other groups called Accountability 2021. Together, the recommendations are an outline for what a Biden administration could be doing to create a better balance between necessary secrecy and the need for oversight.

There was abuse of classification of documents, for example, that may have little to do with personal liability for Trump, but a lot about a better alignment of powers between the executive and legislative branches.

How much should we be allowed to know about all those pardons from Trump, or about why and how decisions were made to keep Mueller documents secret, or to shove the transcript of that call with the Ukrainian president into a deep, dark cave? How do we ever know what Trump said to Russian President Vladimir Putin in multiple one on one conversations held secret or about what went into the decisions to skip early action on coronavirus?

Trump adopted a novel legal viewpoint, refusing to comply with congressional oversight, arguing simply that the executive branch did not have to do so, even during an impeachment inquiry. When do we hold Trump accountable for such actions?

Sure, let Biden keep his hands off Justice.

But give us the right to see how our own government is working. If prosecution is warranted, that will come out.


Journalist, musician, community volunteer