Trump and His Cronies Must Face the Music for Their Crimes

Joe Biden wants to heal America after four years of viciously divisive and deadly governance by Donald Trump. But he will fail at that task, risking both his presidency and his party’s fortunes, if he refuses to hold Trump and his enablers to account. A politics of “forgive and forget” will not unify the nation—it will simply ensure that Democrats lose control of Congress in 2022 and the presidency in 2024.

It’s no secret that Biden is most comfortable in the role of conciliator. But in order to govern and frame the future, he cannot afford to ask Americans to imagine that Trump simply violated norms when the facts tell us that he and his associates broke the law, repeatedly, wantonly, and destructively.

The new president should never hesitate to support the work of federal, state, or local prosecutors pursuing necessary cases against Trump and others who engaged in an orgy of self-dealing, attacked the rule of law and democracy, and presided over a deliberately negligent response to a pandemic that has left over 300,000 Americans (and counting) dead. As Philip Allen Lacovara, a former counsel to the Watergate special prosecutor, reminds us, “If a person who succeeds in acquiring the presidency can flout the criminal law with impunity, then we will have rendered our republic unrecognizable to the Founders and dangerous for our descendants.”

The point is not to be vindictive but to be effective. Bold policy proposals are much harder to dismiss when they are framed in the language of necessity and accountability. When he uses executive orders, legislation, and legal strategies to reassert ethical standards, protect voting rights, secure American elections, and constrain the influence of corporate interests by increasing transparency and accountability in pandemic spending, Biden can say, “These are the things we must do in order to repair the damage done by four years of maliciously destructive actions by Donald Trump and a wrecking crew that cared more about its own enrichment than the health, safety, and prosperity of the American people.”

But this is about more than just reforming a broken process. A steady focus on accountability isolates and diminishes the critics who will challenge vital initiatives to renew the economy, save the planet, and address structural racism, as it identifies Trump and his congressional enablers with the crises that metastasized on their watch.

Establishing this standard of necessity and accountability will not be easy. There will be an outcry from the Sunday morning commentariat, which desperately wants Biden to surrender the mantle of commander in chief for that of healer in chief. Nothing excites political and media elites more than the prospect of a kumbaya moment when “the mystic chords of memory will yet swell when again touched, as surely they will be, by the better angels of our nature.” The poetic appeal of those words from Abraham Lincoln’s first inaugural address is undeniable. But so, too, is their context. Lincoln spoke on the eve of a civil war that exposed divisions so deep, and so enduring, that the United States is still arguing about whether to take down the flags and statues of traitors who tore apart the country.

A far better touchstone for a new president who hopes to unite the majority of Americans behind a bold policy agenda is the president who did just that: Franklin D. Roosevelt. FDR knew that to accumulate the political power required to achieve transformational change, he needed to point the finger of blame, rouse righteous indignation, and prosecute wrongdoers. He cheered on investigations that targeted the bankers and speculators who exploited the misery of a nation mired in the Great Depression. He called out war profiteers and linked his Republican rivals to the dreaded economic royalists who thwarted not just progress but democracy. And when the merchants of greed objected, FDR cried, “I welcome their hatred.”

The American people have handed Biden a mandate to address the political and economic corruption of our time: a margin of over 7 million votes and a higher level of support than for any challenger to a sitting president since Roosevelt upended Herbert Hoover in 1932. Hoover was never as morally loathsome and lawless as Trump, but FDR’s approach is instructive. Like his Democratic predecessor, Biden needs not merely to claim his mandate but to defend it, and the way to do that is with a steely determination to assign blame and exact accountability.

That may sound petty, and Biden will surely be attacked as such. But he will be attacked no matter what he does by Republicans who have developed a boilerplate strategy for undermining and ultimately disempowering newly elected Democratic presidents. Playing nice and peddling the false hope of unity in a divided nation may win plaudits from editorial pages and the grand old party of Lincoln Project grifters and never-Trump commentators who want to tell Democrats how to clean up the messes Republicans made. But it is a recipe for political disaster.

The only way to prevent hyperpartisan and hyperstrategic Republicans from derailing another Democratic administration is to make it clear that the Republicans created the crises they now seek to exploit. Biden does not need to be the chief prosecutor. But he does need to recognize why prosecutions are just and necessary and to openly acknowledge and explain their necessity to the American people. He can echo Andrew Weissmann, a senior prosecutor in special counsel Robert Mueller’s investigation of presidential wrongdoing, who argues that “Mr. Trump’s criminal exposure is clear” and says the next attorney general should investigate and, if warranted, prosecute Trump with the understanding that “being president should mean you are more accountable, not less, to the rule of law.” Weissmann acknowledges, “We do not want to turn into an autocratic state, where law enforcement authorities are political weapons of the reigning party. But that is not sufficient reason to let Mr. Trump off the hook.”

Weissmann expects that Trump will try to pardon himself, his family members, and his companies. Doing so will create an outcry, prompt legal and constitutional wrangling, and put pressure on New York Attorney General Letitia James and other state and local prosecutors to take up the mantle of accountability. “The president’s pardon power cannot be used to: (1) pardon state crimes, (2) remove federal civil liability, (3) pardon impeachment, or (4) pardon crimes that have not already occurred,” says Jill Wine-Banks, a former Watergate assistant prosecutor and executive vice president of the American Bar Association. “I supported indicting Nixon while in office and then after his resignation. The case for applying normal prosecutorial standards to Trump is even stronger.”

Even though state and local investigations do not come under his purview as president, Biden has a duty to defend them. That duty is to the rule of law, history, and the reforms his administration should advance to address Trump’s grifting and self-dealing, refusals to cooperate with federal investigations, abuses of office, and conspiring to overturn the election that deposed him.

Biden has to recognize that one of the best ways to enact good policies—and to retain the power to do so—is by maintaining a steady accountability message that calls out those who promoted the bad policies that must be replaced. That’s a lesson from Roosevelt, who never surrendered the accountability narrative and, notably, never lost his congressional majority or his reelection bids. Joe Biden must take that lesson and run with it.