Jack Goldsmith, a Harvard legal
scholar who served as Assistant Attorney
General under President George W. Bush,
says the question of whether to pros-
ecute will be among the toughest facing
Joe Biden’s Administration. “He will be
under enormous pressure from elements
in his party to investigate Trump,” Gold-
smith says. But that doesn’t mean Biden
will do it—or should. No President in U.S.
history has faced prosecution for actions
taken in office after he stepped down,
and Biden has said he would let the Jus-
tice Department decide whether to chal-
lenge that norm with Trump.
The case posing the most immediate
legal threat to Trump is one arising from
actions he took before becoming Presi-
dent, says Barbara McQuade, a former
U.S. Attorney in Michigan who is part
of Biden’s transition team. While prob-
ing the payments to Daniels, Manhattan
prosecutors cited news reports alleg-
ing that Trump had falsified the value of
his assets in order to receive bank loans.
Trump’s former lawyer Michael Cohen
provided the House Oversight Commit-
tee with financial statements that he
said were evidence of the way Trump
“inflated his total assets when it served
his purposes.” He testified that this
was common practice for his then boss,
whom he called a “con man.”
The district attorney in charge of
that case, Cyrus Vance, has said he is
looking into the Trump Organization’s
“possibly extensive and protracted
criminal conduct,” including possible
insurance and bank fraud. Vance’s of-
fice has subpoenaed Trump’s tax re-
cords, and the President’s lawyers
have fought all the way to the SupremeCourt to keep the records secret.
It was in trying to prevent the re-
lease of those records that his lawyer
Consovoy made the argument last year
about the President’s shooting some-
one on Fifth Avenue. The strategy ulti-
mately failed: the Supreme Court ruled
in July that Trump must comply with
the subpoena. “No citizen, not even
the President, is categorically above
the common duty to produce evidence
when called upon in a criminal pro-
ceeding,” Chief Justice John Roberts
wrote for the majority.
The ruling allowed Trump to appeal
in lower courts, which his lawyers were
quick to do. But if Vance gets his hands
on Trump’s tax records, his office may be
able to build a case on documents alone,
without relying on Trump’s former as-
sociates to testify against him. Says Mc-
Quade, the former U.S. Attorney: “Docu-
ments don’t lie.” Worse, for Trump, as a
local prosecutor, Vance can bring a case
against Trump in New York even if the
U.S. Justice Department decides not to
charge the ex-President with any fed-
eral crimes. Not even a presidential par-
don would protect Trump from a ruling
against him in Vance’s district, or in any
state or local jurisdiction.Beyond the suBpoenas coming from
Vance and perhaps other state and local
prosecutors, Democratic lawmakers are
likely to use their own powers to seek
records from Trump and his aides once
the Trump Administration is out of
power. The Democrats and other Trump
critics have repeatedly alleged that
Trump violated the law before and dur-
ing his presidency, and his opponentswill do their best to keep the former
President under intense public scrutiny
in their search for evidence.
If it does emerge, Trump may face
a more forgiving future on the federal
level, however. When it comes to federal
charges, the Justice Department would
have to look at what McQuade calls the
“collateral consequences”—in particu-
lar, the risk that putting Trump on trial
would deepen the nation’s political di-
vides and rally his supporters around
him. Even in a prosecutor’s mind, she
says, “That would count on the balance-
sheet side against prosecution.”
It would not be an easy call for the Jus-
tice Department, and legal experts say
there is little guidance in the law or the
Constitution. The closest thing to a legal
precedent is the decision not to prosecute
President Richard Nixon after he resigned
from office. His successor, Gerald Ford,
granted him a full pardon in 1974, arguing
that a criminal trial would arouse “ugly
passions” and further polarize the nation.
That approach has appeal even for
some Trump critics, who have warned
that seeking to punish him would do
more to poison the body politic than to
cleanse it. “The appetite for vengeance is
a symptom of the same poison,” the Har-
vard historian Jill Lepore recently wrote.
“Lock him up cannot be the answer to
Lock her up.”
Not everyone agrees. In an interview
last year, before she became Biden’s run-
ning mate, Senator Kamala Harris said
the Justice Department “would have no
choice” but to prosecute Trump after his
presidency. “There has to be account-
ability,” she said. “The President is not
above the law.”
Biden has taken a much softer line.
He pledged that he would not pardon
Trump the way Ford pardoned Nixon.
Nor would he interfere in the Justice
Department’s decision on whether
to file any charges. “The Attorney
General is not the President’s private
lawyer,” Biden said during an interview
in August.
The interviewer pressed him for
a clearer answer, and the candidate
smiled. “I love the way you’re trying
to get me into this thing about
Lock him up,” said Biden. “I’m not
going there.” —With reporting
ELIZABETH BICK FOR TIME by Madeline Roache
A protester in
Washington,
D.C., breaks a
ceramic MAGA
hat on Nov. 4