Support The Bulwark and subscribe today.
  Join Now

Democratic Hopefuls Will Be Asked Whether They Will Prosecute Trump

There's a right and wrong answer.
August 5, 2019
Democratic Hopefuls Will Be Asked Whether They Will Prosecute Trump
And this is only HALF the field. (Photo by Joe Raedle/Getty Images)

Last month, during Special Counsel Robert Mueller’s testimony to members of the House Judiciary Committee, GOP Rep. Ken Buck asked Mueller: “You believe that you could charge the President of the United States with obstruction of justice after he left office?” Mueller responded succinctly: “Yes.”

Mueller’s answer was fodder for the moderators during this week’s Democratic debate and will be for reporters over the next few months on the campaign trail. Candidates should be prepared for some version of the question that Don Lemon asked Senator Kamala Harris on the 2nd night of the debates: If you win the presidency, will you direct the Department of Justice to prosecute Trump?

This is a trick question: Candidates’ answers will tell voters more about their plans for wielding executive power than about their views of the Trump Administration. The answers to this question will help us learn whether these candidates understand what a dangerous road we are on as a country.

When asked, candidates may be tempted to promise to prosecute the president. The Mueller Report lays out clear and compelling evidence that the president attempted to obstruct the investigation into Russian interference in the 2016 election. Our organization, Protect Democracy, helped organize a statement signed by more than 1,000 former federal prosecutors saying that if Trump were not president, he would be prosecuted for obstruction of justice. And presidential candidates should agree that nobody is above the law, not even the president.

Kamala Harris, Cory Booker, and Julian Castro got it right during last week’s Wednesday night debate: No president should ever be in the business of deciding who to prosecute or when to prosecute them. That’s the job for an independent Department of Justice (DOJ)—one that can consider the facts and the law and act free of fear or favor. It’s not the job for an elected official. As Senator Harris said: “I would never direct the Department of Justice to do whatever it believes it should do.”

Indeed, before the Trump Administration, this was widely accepted as one of the guardrails that protects our democracy.  The American people and our government in Washington understood that for a president seeking to wield unchecked power, the Department of Justice (DOJ) is an alluring target: The power to investigate and enforce the law, with all of the resources of the federal government, is a potent weapon. We saw that presidents, under pressure from voters and their party, might be especially tempted to wield this power unwisely. And we recognized that if a president were to harness this power against political opponents or for personal gain, he/she would single-handedly undermine rule of law. We also knew that public calls for prosecution—even if not paired with directives to the Attorney General—put the American people, and the attorneys at the Department of Justice, on notice that the president was willing to throw his weight around on charging decisions: a scary prospect for someone with so much power.

For these reasons, presidents of both parties have long left the charging (and other related) decisions to the experts at the Department of Justice. Republican and Democratic administrations have adopted policies to limit the flow of information between the White House and DOJ. And when presidents have violated these norms of White House non-interference with prosecutorial decisions, they have been strongly criticized. President Nixon faced so much criticism for saying that Charles Manson should get the death penalty, that he was forced to withdraw the comment, issuing a statement that “the last thing I would do is prejudice the legal rights of any person, in any circumstances.” When President Clinton suggested he opposed a plea bargain for the unabomber, Attorney General Janet Reno quickly distanced herself from his comments, saying “[w]e have had no communication [with the White House] on that. This matter should be handled by the Justice Department based on the evidence and the law, and it will be.”

To be clear, it’s perfectly appropriate for presidents to suggest priorities for how DOJ should focus its resources — for example, to call for more robust antitrust enforcement or for deprioritizing prosecution of minor drug crimes. A president might reasonably announce that “the Department of Justice should look into whether big banks broke the law leading up to the financial crisis,” or direct the Attorney General to do so. But the president should never announce that a specific CEO or bank should be prosecuted, nor should the president direct the Attorney General to open a specific criminal investigation.

This administration has led an assault on the Department of Justice and its stated mission to “ensure fair and impartial administration of justice for all Americans.” Candidates should give Americans a reason to believe in its integrity again.

So when candidates for president are asked whether they will indict Trump once he’s out of office, they should say, “that is not a decision for a president to make. When I am president, the Department of Justice will decide whether or not to bring charges, based on the facts, the law, and the independent judgment of experienced prosecutors.”

After all, “Lock him up,” is the autocrat’s answer.

Erica Newland

Erica Newland is a counsel for the nonprofit group Protect Democracy and a former Attorney Adviser in the Justice Department’s Office of Legal Counsel.