It was a strange irony that on the same day as last week’s Capitol Hill riots, President-elect Joe Biden chose to announce Judge Merrick Garland as his nominee for Attorney General. If confirmed, Garland’s immediate to-do list will be a mile long, including overseeing investigations into the violence of January 6. But a coalition of progressive groups is already demanding another priority for day one: Create a task force to investigate criminal and civil violations by Donald J. Trump.
“For at least the past five years, Donald Trump, and his aides and associates, have engaged in a flurry of unethical, unconstitutional, and often criminal activity,” says a letter to Garland signed by progressive groups, including Free Speech For People, Demand Justice, Equal Justice Society and Revolving Door Project, among others.
Citing the Capitol Hill riot as just the latest in Trump’s vast array of possible crimes, the coalition is imploring Garland to begin a process that they believe is imperative for “restoring the integrity of the Department of Justice and the rule of law to our nation.”
Seeking an independent investigation
The coalition’s decision to send the letter was made before the events of January 6, said Ron Fein, legal director of Free Speech For People, a nonprofit group focused on corruption, money in politics, and elections.
“The history of criminal actions by Trump and his associates dates back long before the insurrection at the Capitol,” Fein told Blue Tent.
The coalition’s letter cites numerous potentially criminal activities by Trump over the years, from allegations of fraud in his businesses before he assumed the Presidency, to his attempts this month to subvert the 2020 election and incite a violent mob.
The letter also discusses the investigation by special counsel Robert Mueller into Russian interference in the 2016 election, arguing that Mueller’s report included “extensive evidence” Trump committed obstruction of justice, but that Mueller declined to make a prosecutorial judgment due to U.S. Department of Justice policy not to indict or prosecute a sitting president. The report did, however, argue that a president could be prosecuted for his wrongdoing upon leaving office.
The coalition is not seeking specific charges against Trump or his associates from the future attorney general, but rather the creation of an independent group to pursue investigations.
“The call that we will be making to Judge Garland, assuming he is confirmed as attorney general, is to publicly announce the mechanism by which these criminal investigations will be conducted,” Fein said.
“The attorney general needs to say, ‘I’ve set this process in motion, here are the people, and now let them do their work,’” Fein added. “And until the attorney general does that, the public will not have the confidence of knowing these charges won’t simply be swept under the rug.”
An unprecedented investigation could raise thorny political questions
While calls for an investigation of Trump ramped up following the insurrection of January 6, the debate over whether prosecutors can or should pursue charges against the 45th president has been active for much longer. Trump is currently under investigation in New York by both the state attorney general’s office and the Manhattan district attorney, while he has hinted at granting himself a preemptive pardon for any federal crimes.
Prosecuting a former president also raises questions about the tension between enforcing equal justice and guaranteeing peaceful transfers of power. Writing for the publication Persuasion, liberal intellectual Michael Walzer argued in August that the prosecution of a defeated president could lead to future politicians refusing to leave office, a blow to the country’s traditionally peaceful transfer of power.
“We want people fighting for office and for the policies they believe in; we don’t want people fighting for their life or their liberty. When political leaders do bad things, elections, not prosecutions, are the appropriate remedy,” Walzer wrote.
Walzer did not respond to questions asking if he stood by his position in light of the January 6 insurrection.
An esteemed judge will be the ultimate decider
Judge Garland’s reputation is one of a thorough, thoughtful and meticulous jurist with a commitment to narrow, fact-driven and cautious decision making. Whether or not he will follow the recommendations of the letter is an open question; the Biden transition team did not respond to requests to inquiries about a criminal investigation of Trump.
Fein hopes Garland’s views on the subject will be elucidated during his confirmation hearings.
“The ideal is for presidents not to commit crimes, and the credible threat of criminal prosecution is a powerful deterrent,” Fein said. “So long as we as a society operate under a Department of Justice policy that prevents presidents from being charged with crimes while they’re in office, and then some sort of professional courtesy that says that they’re immune to prosecution after they’ve left office, presidents will have little or no incentive not to commit crimes.”
Correction: This story has been updated to reflect the proper name of one of the coalition partners. The group is Free Speech For People, not Free Speech for the People.
