Is Prosecuting a Former President Worth It?
President Donald Trump has spent much of the last four years bulldozing through the informal norms that have long guided the presidency. He has refused to release his tax returns, declined to comply with congressional subpoenas, politicized the traditionally independent Department of Justice and used pardons to advance his personal legal interests, to name a few.
The norm-breaking won’t necessarily stop once Trump leaves office. Indeed, the long-term stability of the rule of law may depend on upending one more contested norm: that former presidents shouldn’t get prosecuted by their successors for crimes they committed in office.
“The [Office of Legal Counsel] opinions allow prosecution after the president leaves office for crimes committed in office, but there really isn’t a lot of guidance, and it’s going to be up for grabs,” says Jack Goldsmith, who led the OLC under President George W. Bush. “What happens after Trump is going to be hugely consequential for establishing these norms.”
In their new book After Trump, Goldsmith and Obama-era White House Counsel Bob Bauer survey the Trump administration and make specific detailed suggestions on how to reform and remake the presidency — sometimes by turning norms into laws, and sometimes by reforming the executive branch from within. The co-authors’ one area of disagreement in the book comes on the question of prosecuting a former president: Both see it as enormously costly for the country, but disagree whether the benefits outweigh those costs.
“My view is that we cannot have an executive branch law that immunizes the president while in office, and then a norm that protects the president from prosecution when he or she leaves office — so that no matter which way you turn, the president is protected from the consequences of criminal misconduct in office,” says Bauer. “Any impression that the presidency is a ‘get out of jail free’ card is very troubling.”
For Goldsmith, the argument for caution is based in pragmatism and an understanding of what a prosecution would entail and how disruptive it would be. “Ultimately … it’s not worth the candle because of the damage it would do to the nation and to the governing party in power,” says Goldsmith.
Still, he concedes that this approach comes with a cost. “There’s a cost to the rule of law,” says Goldsmith. “There are going to be costs in either direction, and the question is: Which is the least bad?”
Consider, for instance, the political toll a prosecution would take on the sitting administration. If a President Joe Biden takes office with Democratic majorities in the House and Senate, it’s difficult to imagine him wanting to spend his hard-won political capital on pursuing a prosecution of Trump.
“Take the first term of any president: The president has 18 months or so before the midterms, and then the next two years focus on the reelection campaign,” says Bauer. “You don’t want to wind up spending all of your time in the first two years talking about the last presidency in the context of a criminal investigation when you’re trying to accomplish some significant business for the country.”
There are also practical difficulties. Any investigation would “have to cover the whole administration — everyone Trump was involved with when he committed those alleged crimes,” says Goldsmith. “It won’t just be Trump going before a grand jury; it would be lots of executive branch officials. There would be collateral issues, like executive privilege. It would be a big-time, historic legal circus.”
Washington isn’t exactly unaccustomed to a circus, of course. And the circus nature of the last four years is what led Bauer and Goldsmith to write their book, which casts them as proverbial lion tamers trying to bring an unruly presidency back into line.
As the nation weighs its choices for president, POLITICO spoke to Bauer and Goldsmith about the Trump presidency, their outlook for the rule of law, and the barriers they see as standing in the way of the reforms they propose. A transcript of that conversation is below, condensed and edited for length and clarity.
Last week, President Trump declined to guarantee a peaceful transfer of power if he loses the election. What’s your reaction to that, especially as people who have written a lot about the rule of law?
Jack Goldsmith: It’s obviously a reprehensible thing for a president to say. To, in effect, sow doubt in the outcome of an election before it happens — and seemingly in anticipation of doing that after the vote as well — is reprehensible. It’s typical of the norm-violating actions that Trump’s been taking for four years. Our book focuses on these norm violations not so much as they affect elections, but how they have impacted the executive branch itself. That’s where our focus is. But he violates norms in many other contexts, and this is near the top of the list in terms of badness.
In terms of norms and the presidency, when did you come to think that things were off the rails?
Goldsmith: We were initially going to write a book about the White House counsel’s office, which is where Bob worked for President Obama. Eighteen months ago, we met to talk about that book, and the conversation kept going back to larger issues about the presidency and Trump’s norm violations and challenges to legal restrictions and the like.
These problems have been obvious since the first day of his presidency. They’ve been growing ever since. They have affected all elements of the executive branch. We worked hard to think about all the implications of Trump’s norm violations. Trump is not the crux of these problems. Many of them didn’t begin with Trump; they have a history. We tried to put everything in context.
Bob Bauer: Anybody who is thinking about a presidential authorization should always ask the question: Would my position be the same if it were being done by a president that I support and not just a president I would prefer not to have in the White House? Our conversations were continuously informed by the “Golden Rule” and trying to find a reform program that could be argued with balance and attract bipartisan support and trying to keep partisan preferences out of the deliberation and ultimately the conclusion.
Goldsmith: The golden rule principle guided us. It was an attempt to abstract away from politics to the extent we could — no one’s perfect on that score.
Increasingly, it feels like we have very short-term outlooks in government. Abiding by the golden rule requires some amount of long-term consideration. How did that affect the way that you think through all of this?
Goldsmith: Obviously, these reforms are going to be considered in a political context. The basic norms of how Washington operates have been declining, and there has been an emphasis on the short-term political grab, as opposed to medium-term cooperation. That’s been happening for a long time, and that’s a serious challenge to reform. Many of these reforms can be implemented — and must be implemented — by the executive branch itself. The right kind of president or attorney general, with a courageous attitude towards reform, can implement a lot of these.
The country had a series of very important congressional and executive branch reforms in the 1970s that have informed presidencies ever since. We don’t know when the moment will come that Congress gets its act together. We don’t know if it will ever happen. It could happen next January. It could happen two years from now. It may never happen. But when the opportunity does arise, it’s important that all of these issues be thought through, and this is an effort to contribute to that.
Bauer: One of the objectives is to have a conversation after Trump like the one that occurred after Watergate, in which there is at least some bipartisan agreement that there is a need for reform, and that something has gone wrong and needs to be fixed. There has been a lot of book-writing and article-writing about the crash of norms during the Trump presidency. The lamentations have been heard, and they’ve been loud. But the question is: What sort of a reform program stands the best chance of generating a conversation that has bipartisan support and brings them to life?
A whole section of your book deals with the way the executive branch has soaked up power since those post-Watergate reforms. Talk about that. What led to the moment we’re in right now?
Goldsmith: The presidency has been growing since 1789, a long-term generic rise with some obvious accelerations around, say, the Civil War and the New Deal — and in the post-New Deal era, especially in war powers. And it’s happened as a result of a number of factors. One is that Congress has delegated enormous discretionary authority to the president, ranging from war powers to the administrative state to emergencies. It has delegated enormous power to handle these situations in part because Congress grew dysfunctional and in part because the world is complicated and dangerous. Another long-term reason is the presidency has arrogated power to itself — even when Congress didn’t give it — and Congress and/or the courts acquiesced.
Our goal is not to defang the presidency and to chop it way down; we actually believe that a powerful presidency is important in making the government work. The question is: How can the country have confidence in the presidency — confidence that the presidency is abiding by the rule of law, that it’s adequately accountable and that it can be trusted in exercising these really enormous powers?
Where does the incentive to reform come from when you’re the party in power?
Bauer: It goes back to the golden rule. What I think could be said to each political party is that it’s not possible to cabin the effects of norm-breaking and a drive for power. It’s not possible for any one party to enjoy the benefits without being on the other side at some point — without being the victims of the same conduct. The parties wind up in this escalating tit-for-tat spiral because they somehow imagine that they’re going to have short-term gain and temper the long-term costs when the other party gains control. Partisans may experience pains and frustrations in achieving their goals, particularly over the short term. But in order for our government to function the way we want it to, there are certain costs that we just have to bear.
That’s another example of where I think focusing on the “after Trump” era is important. In many cases, Trump has been able to exploit a history of presidents going well beyond their remit and engaging in lawbreaking or making claims to power that exceed legitimate authority. But Trump has also added this extraordinary rhetorical audacity and recklessness, and the costs have been severe. Republicans, in my judgment, do recognize them — certainly Sen. Mitt Romney, who voted for an article of impeachment, has recognized them, at least in some respect. And our hope is that there’s been enough of a shock to the system that people recognize that our system of constitutional accountability is in the balance.
Goldsmith: Until Trump, there was a bipartisan consensus that presidents should disclose their tax returns and should not engage in conflicts of interest by mixing business and politics in their public offices. Those were governed by norms — norms that Trump violated. We propose to make those laws that presidents can’t circumvent. And there’s no reason why, if Biden wins, a President Biden should be opposed to that. There’s no reason why Democrats in Congress should be opposed to that. There’s every reason to think that many Republicans who believed in that before Trump will come around to thinking that should be the case after Trump. Quite a number of our reforms are of that flavor. It’s not clear why a Biden administration would oppose a bill that we proposed to, for example, to limit self-pardons or other abuses of the pardon power.
Among the things you write about changing are the norms around criminal investigations of former presidents. Let’s talk about that. First, can you walk through what those current norms and laws are?
Bauer: The Office of Legal Counsel, in 1973 and 2000, has taken the position that sitting presidents cannot be prosecuted criminally while in office — but they can be investigated while in office. And then we have a norm — it’s contested, but it’s a norm — that seems to operate once presidents leave office. They’re legally vulnerable to prosecution, potentially even prosecution for an investigation that took place while they were in office. But keeping in mind President Gerald Ford’s pardon of former President Richard Nixon, the view is that there’s just too much danger that [a prosecution of a former president] will interfere with the sitting president’s pursuit of a national governing agenda, and so a sitting president really ought to consider intervening and protecting an ex-president from the worst consequences of a criminal prosecution.
In Nixon’s case, Ford issued that pardon within one month of Nixon leaving office. He gave a couple of reasons, but “national unity” is the one for which he is remembered. And those who think he did the right thing will say that’s what he should be commended for.
The criminal prosecution of an ex-president is a point on which Jack and I disagree. It’s the only place in the book where we air a disagreement — though we did it, I think, in a civil and thoughtful way. My view is that we cannot have an executive branch law that immunizes the president while in office and then a norm that protects the president from prosecution when he or she leaves office — so that no matter which way you turn, the president is protected from the consequences of criminal misconduct in office.
Goldsmith: There’s never really been a full-blown investigation by one presidency of another presidency for alleged criminal acts while in office. There’s a lot of concern, obviously, about the impact on democracy and on transfers of power, having one administration examine a prior administration through the lens of criminal law. But the truth is, the law allows it. The OLC opinions allow prosecution after the president leaves office for crimes committed in office, but there really isn’t a lot of guidance, and it’s going to be up for grabs. What happens after Trump is going to be hugely consequential for establishing these norms.
I take all of Bob’s points. They’re very good ones. My arguments for caution are pragmatic ones. I’m doubtful, first, that it’s going to be easy to conclude that Trump did commit crimes in office — they’re going to be very contested. For example, it’s difficult to prosecute a president under the obstruction of justice statute unless and until some of the reforms we suggest come into place. So that’s going to be problematic from the get-go. And if it’s clear that a prosecution is going to be difficult, I don’t see the value in pursuing it.
I also think that the pursuit and investigation of a prior administration won’t be limited to the president: It will have to cover the whole administration — everyone Trump was involved with when he committed those alleged crimes. We’re talking about a rather large investigation by one administration poring through the acts of the other one to see whether criminal acts were done. It won’t just be Trump going before a grand jury; it would be lots of executive branch officials. There would be collateral issues, like executive privilege. It would be a big-time, historic legal circus.
My argument, ultimately, is that it’s not worth the candle because of the damage it would do to the nation and to the governing party in power. Now, there is a cost to not doing it. There’s a cost to the rule of law. There are going to be costs in either direction, and the question is: Which is the least bad?
Bauer: Jack hit the nail on the head. There will be costs to doing this. Take the first term of any president: The president has 18 months or so before the midterms, and then the next two years focus on the reelection campaign. And that time can be less productive — there’s more political pressure, less willingness on the part of the opposition party to cooperate, and so forth. You don’t want to wind up spending all of your time in the first two years talking about the last presidency in the context of a criminal investigation when you’re trying to accomplish some significant business for the country.
But there are questions here that are so large about accountability. Let me go back to Richard Nixon for a second. When you consider the range of crimes committed during Watergate — crimes that are really quite astonishing, a number of them essentially directed out of the Oval Office, both the original crimes and the so-called “cover-up” — there’s something very unsatisfactory about that chapter ending with Nixon disappearing for a while and then writing a number of bestselling books and emerging as a commentator and respected senior statesman. There’s a feeling that there wasn’t the kind of accountability that any other citizen committing serious crimes would face. Any impression that the presidency is a “get out of jail free” card is very troubling.
Now, there needs to be a measured approach. Just because everybody is angry with the behavior of the ex-president doesn’t mean that every single possible offense one could imagine, from the least serious to the most serious, should be built into an indictment that runs for 275 pages. There has to be some sort of focus and judgment, and responsible law enforcement takes into account the gravity of the prosecution. But overall, I think it’s important for there to be accountability.
Goldsmith: I accept everything Bob says, but I have a few things to add. First of all, I want to make clear that there’s going to be a continuing investigation of Trump after he leaves office. There are now two ongoing investigations that concern issues related to Trump and the Trump Organization — by the Southern District of New York and the State of New York. Those are going to continue, and nothing that I’m suggesting says they shouldn’t; I’m talking about acts committed while in office.
Second, I’m not proposing a per se rule against prosecuting presidents after they leave office. My argument is a pragmatic one based on the politics of the moment, what we know about what crimes Trump might have committed, and what I think the consequences will be for our polity, both in the short term, and the norm it sets in the long term.
Third, criminal liability and criminal investigations aren’t the only forms of accountability. We sometimes think that, absent criminal liability, if someone has done something close to a crime, that’s the only way to hold them accountable. But that’s not the way accountability works. There are all sorts of forms of accountability, ranging from electoral rejection to ostracization to a whole bunch of other things. I’m confident that Trump will be held accountable, in some sense or another, for how he conducted himself in office. But I worry about the pragmatic consequences for the nation, about the kind of robust investigation of his alleged crimes.
There was a lot of talk, especially early on in President Trump’s first term, about the so-called “adults in the room” surrounding him — people there to protect the guardrails of democracy. If he’s reelected, do you think that there are fewer people around him who care about the guardrails?
Goldsmith: Trump has been, in many ways, feckless in wielding executive power. If someone with Trump’s attitude towards institutions and legal constraints had been more competent in exercising power and manipulating the executive, it could have been a lot worse. He has figured it out a little bit — learned how to manipulate the executive branch. And he has people now in office who are more inclined to go along with his inclinations than perhaps was the case early on. All of those things suggest that if he wins a second term, he will be even more adept at exercising a corrosive influence on our institutions.
If Trump is reelected after having done all this for four years, he will view it basically as a vindication of what he’s doing. And if the American people — in the face of all of the destruction that he’s wrought on executive branch principles and understandings about how the executive branch is supposed to act and how the president is supposed to comport himself — if Trump is reelected, then it’s very hard to predict what the consequences will be.
This is, in my judgment, one of the key issues in this election. It’s not what most members of the electorate are worried about, obviously. But one question before the electorate is: Is there going to be a ratification of what Trump has done to the executive branch?
The name of your book is “After Trump.” What does the presidency look like after Trump? How has he changed it?
Bauer: In effect, the question is, are we going to allow him to have changed the presidency? The purpose of the book is to raise that question. Either there’s a second term that seems to seal in, to some extent, acceptance of the kind of presidency that Trump has established, or, alternatively, we do have a serious reform debate and there’s a real effort to reconstruct the presidency and repair the damage that’s been done — and to do so also with a view toward some of these historical sources that were uniquely exploited by Trump.
Do you see this as a perilous moment for the rule of law?
Goldsmith: Could you just clarify which moment you’re referring to? [Laughter]
Sure: Both the total sum of everything we’ve seen over the last four years, as well as things like the president’s refusal to guarantee a peaceful transfer of power.
Goldsmith: I would say it is a perilous moment. The truth is that over the course of the Trump presidency, norms have actually operated better than they’ve been given credit for. They’ve performed imperfectly, and have had somewhat diminishing effect over the course of the Trump presidency, but a lot of the institutions actually worked pretty well. But what’s at stake is whether they will continue to work well going forward. And in our judgement, it is absolutely vital that all of these issues be looked at, and the gaps and deficiencies in the way that norms and laws operate in the presidency be reexamined, because we are at a turning point.
The question is whether we’re going to continue to slide in ways that make it impossible to have confidence in the rule of law, or try to take steps to buck that up. That’s a very hard task because of our country is divided, and law enforcement and the attorney general’s enforcing the law in either party increasingly looks political. But that’s all the more reason to take the steps we propose to try to buck up both the appearance and the reality that the executive branch is governed by the rule of law.
Bauer: If there isn’t a reconstruction program after Trump, we will find that our notions of the rule of law and our expectations for how it functions will have taken a very dark turn. A “perilous moment"? We’ll see. But a turning point in the country’s determination to face the issue? I think that’s unavoidable.