It is not too soon to discuss the prosecution of Donald Trump as an absolute political necessity. How the last nine days of his presidency is handled relative to Trump being removed from office or not is one thing, but he must be removed from the political stage permanently. These 10 points must be kept in mind in order to make this a properly focused and rational process:
1. Total Fairness and Due Process
This prosecution must be a model of fairness and due process. While Trump attempted to move the country in an autocratic direction with little respect for the law, any prosecution of him must be absolutely fastidious in its adherence to all judicial norms of fairness and due process. Even though Trump tried to be above the law, he must be pursued for prosecution with utmost respect toward the law.
2. Prosecution of Presidential Crimes
Donald Trump should not be prosecuted for crimes he committed in his capacity as president of the United States. There is no doubt that charges could be brought for obstruction of justice and other crimes, most notably his most recent attempt to pressure the Georgia secretary of state to commit election fraud and for inciting the Capitol Hill riot. However, any attempt to turn presidential acts, no matter how heinous, into crimes will only be viewed by his supporters as Trump being politically persecuted by political enemies. The last thing a prosecution of Donald Trump should do is elevate Trump to political martyr status among his followers.
3. The Federal Government Should Not Prosecute
While the U.S. Attorney’s Offices for the Southern District of New York and for the District of Columbia probably have substantial evidence around which prosecutions could be built, putting the U.S. Justice Department in the position of prosecuting this former president will only cause both the new attorney general and the entire Biden administration to be viewed as partisan actors. There is simply no way to convince 74 million voters that a Biden administration led prosecution of the political actions of the candidate they voted for is a step in the direction of trying to find bipartisan ground on policy solutions.
4. Do Not Prosecute The Stormy Daniels Case
It will be particularly difficult for federal prosecutors not to pursue the case where Donald Trump was already found to be an unindicted co-conspirator by a grand jury in the Michael Cohen/Stormy Daniels case. In that case the president’s former personal attorney has testified, in his own guilty plea, that he was in fact ordered to make illicit payoffs by President Trump. However, the federal government needs to stay out of prosecutions, even where as here the case has essentially already been made, and prosecuting him as a co-conspirator would be very low hanging fruit once he is no longer in office.
5. A Self-Pardon Will Force a Federal Indictment
It was thought that Trump might well resign in the last couple of days of his presidency, not to succumb to the pressure he do so, but in order to be pardoned by Vice President Mike Pence, who would then become president and issue a sweeping pardon absolving Trump of any possible federal criminal liability. However, given the deterioration in their relationship over last week’s events, it is far less likely Vice President Pence would play such a role, particularly given how pardoning these actions would reflect on Pence’s own legacy. Thoughtful constitutional scholars have clearly opined that a president pardoning himself would put a president beyond the reach of law, both in or out of office, in a country where it’s been clearly established no person is above the law. If Trump goes the self-pardon route then the Justice Department must take the prosecutorial initiative and pursue a federal indictment of Trump in order that there be a case in controversy that can reach the Supreme Court so it can declare self-pardons unconstitutional. Thus, the self-pardon path to protect himself from criminal liability would force a criminal prosecution of Trump to nullify any notion that self-pardons are permissible.
6. Prosecute to Take Trump Off the Political Playing Field
The most important issue in prosecuting Donald Trump is to permanently remove him from the political playing field. That is, to diminish him as much as possible from having enormous swat over the base of Republican supporters that made 147 members of the House and Senate—over half of all elected Republicans on Capitol Hill—think it was a good idea to ignore reality, ignore the law and ignore their constitutional responsibilities in order to try to nullify the legitimate Electoral College outcome. And amazingly they then did so immediately after the entire big lie of a stolen election was used to incite a Capitol Hill riot that forced those same legislators to flee. If after the darkest event ever on the grounds of Capitol Hill was not enough to separate that many congressional Republicans from Donald Trump because of their perception of his gravitational pull over their constituents, then clearly prosecution of Trump for political acts will not do that. It would be an enormously unhealthy burden on our democratic system for the next four years to have Donald Trump acting as a legitimate political actor, laying down the litmus tests for what Republican legislators can and cannot do. His ongoing political engagement will cause massive disruption, as well as nothing more than assure a poisonous political environment.
7. Prosecute Trump for White-Collar Crimes
Trump has recast the Republican Party as a cult of personality—and to fully negate that the person needs to be recast as a common criminal. Donald Trump must be laid bare as nothing more than a common white-collar criminal who has been found guilty by a lay jury of financial crimes. Criminal prosecution as a crook, divorced from political acts, can achieve reducing his perceived hold on the vast majority of Republican voters. This needs to be conducted by the Manhattan district attorney and the New York state attorney general, or for that matter any other state in which Donald Trump or the Trump organization has done business. These investigations and prosecutions should focus in on the myriad reports that suggest tax evasion, bank fraud, illegal corporate payments and money laundering. Prosecution in these areas make it clear to his political base, that this guy should be viewed as no more than a convicted felon who should serve time in prison for his criminal offenses like any other convicted criminal.
8. Some Will Always Scream Political Persecution
While criminal prosecution and conviction will lead to his sharply diminished relevance, there will be some who will suggest that even being pursued for white-collar criminal activity is partisan politics and not justice served. There will no doubt be a contingent of voters who will always hold this view, but the point here is to remove his hold on a significant enough portion of the Republican Party by diminishing his legitimacy to the greatest extent possible as a key step in restoring political health to the country.
9. Federal Agencies Can Help Build State and Local Cases
The FBI, the IRS and any other federal government agencies that can legally provide support to the state and local prosecution effort should be greenlighted by the Biden administration to make those resources available. Such an effort will certainly help expedite bringing these criminal cases to finality.
10. Indict and He May Flee Sparing Trial
Speed really matters here. The faster these investigations and prosecutions can be pursued the better—because until that time it seems that Donald Trump’s political swat, despite Senate Majority Leader Mitch McConnell’s recent efforts to somewhat undermine it, will largely remain intact. Barely any legislators dropped their opposition to the Electoral College slates even after the tape emerged clearly outing Trump for election fraud, or worse, even after the Hill riot. Moreover, as Donald Trump stated in one of his speeches—”Could you imagine if I lose?… Maybe I’ll have to leave the country.”—indicting him might actually cause him to flee to a country that has no extradition treaty with the United States, such as Brazil, thus, avoiding a long drawn out criminal trial, and providing a speedier result. While Russia would also qualify as such a country in that regard, there is not enough poetic justice in the world to think that Russia would be the final resting ground of our 45th president—assuring that his legacy would forever be linked to the words “Russian asset” on top of “insurrection president.”
It will not be and should not be a priority of the Biden administration—which must begin anew without the stain of Donald Trump and all the drama he brings—to take on a criminal prosecution of Trump. Fortunately, there are state and local prosecutors who can take on this extremely important work of ridding our politics of the malignancy that Donald Trump presents, and demonstrate clearly to all that our democracy stands for the proposition that no man is above the law.
Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chair of Engine Media and is former senior counsel to a congressional committee.
The views expressed in this article are the writer’s own.