The Electoral College has spoken and Joe Biden is now incontrovertibly the President Elect. Even most Republican leaders are now grudgingly admitting that Biden is our next President. As to the election, la guerre est finie.
Now that the election issues are over, there is and has been much discussion about whether the Biden Justice Department should investigate and, if appropriate, prosecute Donald Trump for potential criminal conduct while in office, or whether the new administration should attempt to heal the country by turning a page on Trump and starting a fresh chapter in political history by putting the impeachment and further investigations behind us.
Originally, I believed in the latter position because I felt that it was so important for Biden to try to heal the country and bring us back together that additional investigations and/or prosecutions would be a distraction to the healing process. To my mind, it is hard to argue to the Trump supporters that Joe Biden wants to be the President for all the people and we should come together, but first we need to investigate and prosecute Trump.
Given Trump’s conduct since Election Day, I have abandoned this simplistic position. What Donald Trump has done since Election Day, in shamelessly trying to interfere with the vote counting process and the judgment and decision-making of election officials in the swing states, filing over 50 frivolous lawsuits, challenging the integrity of the election process and embarking upon an unprecedented publicity campaign to sow the seeds of disinformation about who won the election and the validity of the election process, simply cannot be ignored. However important it is for our country to heal, it is equally important that the rule of law and the viability of the democratic process not be abandoned. The coup where Trump attempted to overthrow the election results threatened the very foundation of our democracy.
In a prior column, I wrote that the Mueller Report painted a compelling picture of obstruction of justice by Trump during the investigation of Russian interference in the 2016 election. https://www.insidernj.com/mueller-report-contains-devastating-evidence-obstruction-justice-trump/ As I noted, if a police officer or ordinary citizen had attempted to interfere with testimony during an ongoing investigation like Trump did, they would have been promptly criminally charged by the appropriate authorities. What Trump may do before he leaves office, may well create a far stronger obstruction case then even existed at the time of the Mueller Report. Putting aside his subsequent attempt to create a false scenario through the actions of his personal attorney Rudy Giuliani suggesting that Joe Biden was under investigation for his earlier activities in Ukraine, Trump’s activities as to Michael Flynn (a sweeping pardon after two guilty pleas) and Roger Stone (commutation of a 40-month sentence) were apparently a payback to them for “stonewalling” the government’s attempt to get them to cooperate against Trump. Wait until we see the anticipated cascade of pardons by the time Trump leaves office which presumably may include his family, his personal attorney, Rudy Giuliani, some of his inner circle and perhaps himself, either directly or by Pence immediately after he resigns. This would create an aura of a conspiracy to obstruct justice and eliminate the rule of law as we know it from the moment Trump began his office until the moment he leaves it.
Beyond the issue of pardons which we know are almost certain to come, I also believe that after Trump is gone, no matter how powerful people think he will remain, government insiders may come forward with incriminating firsthand information about blatant conduct on the part of Trump or his inner circle bearing on an ongoing obstruction of justice and/or a conspiracy to violate the civil rights of voters and suppress the legitimate results of an election.
I am not suggesting that if the Department of Justice obtains evidence of borderline crimes (violation of the campaign finance law arising out of the settlement of the claim by Stormy Daniels or false information in a financial statement or even federal income tax violations) that the Biden Justice Department should expend the time, resources and emotional energy to prosecute such crimes. Nor is it my position that the new Attorney General should proactively convene a Grand Jury to affirmatively investigate Trump. However, if witnesses come forward with firsthand information bearing on an ongoing conspiracy to obstruct justice or a conspiracy to violate the civil rights of voters or to overthrow the results of a legitimate election, then a desire to “heal” is too high a price to pay to look away from this seditious attack on the rule of law.
To paraphrase a line from a songwriter, now is not the time to “philosophize disgrace” by looking away because of our fear. We are all aware of the effect of appeasement on past historical events.
Joe Hayden is a storied defense attorney and legal counsel to InsiderNJ.