Will Trump Face Prosecution?

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. If you watch certain cable TV channels, they repeat over and over again that President Trump has no path to overturning the presidential election results. That is probably true but they are still trying everything they can in Trump world, everything they can to throw with illegal and political systems to try. This is not over. There were at least three developments yesterday maybe four. Maybe there were more than four, ones I haven't seen.

There was high drama in Detroit where there was a deadlock between two Democrats and two Republicans who would routinely certify that city's votes hasn't been controversial before. They finally agreed to do it but with a promise of an audit to come. President Trump tweeted in the middle of the flap that in fact Michigan's electors should be chosen by the Republican state legislature and all the voters should be disenfranchised. Trump also fired his administration's election cybersecurity chief for the transgression of certifying basically that the election nationally had not been hacked. We'll see who he puts in that position and what that person says.

Rudy Giuliani was in court in Pennsylvania yesterday pursuing the Trump campaign's argument not that he has evidence of any voter fraud but rather the potential for something fishy to occur was there because partisan poll watchers weren't given a sufficient opportunity to view the absentee ballot counting in Philadelphia. This has failed elsewhere. We will see what happens here.

Senator Rand Paul, a Trump ally, was on TV yesterday calling for a random sample audit of absentee votes in Atlanta to see if envelope signatures match up at a high enough rate in the sample. If not disqualify every vote in the city of Atlanta. Detroit, Atlanta, and Philadelphia in the Republican crosshairs and we know who lives there. Now, these may be the final throes of a dying campaign but they require sunlight and we will keep watching.

At the same time, Trump is ordering a major drawdown of troops in Afghanistan and Iraq by January 15th just five days before Inauguration Day, and reportedly has been considering a post-election attack on Iran. He's playing war games as a lame-duck president in and out of wars potentially, a president who was thrashing about in his apparent last days. How dangerous is that, not to mention inappropriate to his new status? Meanwhile, NBC News reports Joe Biden would prefer to avoid divisive prosecutions of Trump once he's out of office as part of Biden's strategy to heal and reunite the country,

New York Times correspondent Jonathan Mahler has an article on this. His last major piece was on Michigan governor Gretchen Whitmer who Trump is still tangling with over coronavirus policy and whose state government has to certify Michigan election results that Trump is trying to suppress. Jonathan thanks for coming on. Welcome back to WNYC on such a slow news day.

Jonathan Mahler: My pleasure, Brian. Every day your head starts spinning when you open your eyes and it doesn't stop until you close them.

Brian: Before we get to your article, are you watching the post-election lawsuits and attempts at political suppression of votes like they tried last night in Detroit?

Jonathan: I am as a citizen. I'm not covering them but I'm following them as best I can. It's also hard to keep up but, yes, as you mentioned at the top of the show, even just yesterday, there were a handful of big news events so and probably most dramatically the one in Detroit.

Brian: The military piece of this, we don't know what's he going to do. There are all kinds of theories about this, he's pulling troops out of Afghanistan and Iraq precipitously in a way that the generals don't want and in a way that even Mitch McConnell said very publicly that he doesn't want, potentially dangerous in the way he would be taking the troops out and leaving Biden with an immediate mess, possibly just a sabotage in this particular way the beginning of a Biden presidency. Reportedly, the idea of attacking Iran was considered and rejected, but boy, is he thrashing about, and boy, is this potentially dangerous.

Jonathan: I think you have to assume that no precedence will be followed, no norms will be followed in terms of how the transfer of power typically happens. As you say that everything-- the only logic that will probably be able to discern in all of this is the attempt to make things messier for Joe Biden. To the extent that the President can in any way gain leverage in any way he can whether it's financially or to limit his own liability. Those are the things that I guess you want to be on the lookout for.

Brian: Listeners, we'll have separate segments on those two topics, looking at those two situations in detail. Jonathan, do you ever take on how much the Michigan vote is safe from monkey business? Bided did win it by about 150,000 votes and I guess I'm wondering if Gretchen Whitmer, who you just recently wrote a long article about, might find herself in the middle of any attempt to disqualify thousands maybe tens of thousands of legal votes.

Jonathan: I'm not covering this story so it's hard for me to say with any certainty. I would assume that there is going to be an attempt to challenge those votes and that they're going to continue right up until what is it December 10th or December 12th. It seems like they should be secure.

Brian: Whitmer and the coronavirus business, that's still isn't over. There are still tweets coming out telling the people of Michigan to-- I think this came from Scott Atlas now, the rogue doctor who's the head of coronavirus policy for Trump now, telling people in Michigan to rise up, not that long after Whitman was the target of a kidnapping attempt.

Jonathan: Yes, there's a very hostile Republican state legislature there. From the start, as we all remember from those shocking early protests at the state capitol with all the armed protestors who remember actually entered the capitol building armed and were in the Senate gallery. Even still the state and Whitmer was unable to pass any law or even regulation banning arms from the Senate gallery. She's definitely facing a very hostile opposition that similarly is just looking to make things more difficult for her at every turn and to make it impossible for the governor.

Brian: You know there's a rising political analysis about the election, that I don't think they really know if this is what happened yet and we'll deal with it eventually in a separate segment but, that Trump by telling all these people in Michigan that absentee ballot voting was either not safe or corrupt in the weeks before the election when coronavirus was rising in Michigan as it is still, that he might've suppressed his own vote and helped cost himself the election since he depends largely on older white senior citizens who would be, by virtue of their age, the coronavirus vulnerable demographic.

Jonathan: Yes. That makes some sense.

Brian: We will see how that all shakes out. All right. Your new piece, and my guest is Jonathan Mahler, writer for The New York Times Magazine, your new piece is about what to do with potential criminal defendant Donald Trump once he leaves office. We'll play a clip of Gerald Ford. Listeners, we're not just going to play the clip where he says, "I hear by pardon Richard Nixon." We're going to play him laying out his rationale in a way that may have resonance for today or may not. We'll play that in a second, but Jonathan, what's the big picture here as a question that faces Biden that inspired you to write this article?

Jonathan: The big picture is that we are about to have an ex-president who has an enormous amount of potential criminal liability for crimes that he may have committed while acting as president of the United States. We have never prosecuted a former president before and the clip you're about to play is the closest we've ever come, which was Ford's Pardon of Nixon, when he certainly could have been indicted and prosecuted.

We've never done it, but the question I'm posing and trying to grapple with in this piece is, is this time going to be different? Should this time be different? What would those possible crimes and prosecutions be and what are the risks to prosecuting him? Frankly, what are the risks to not prosecuting him? The risks to the future of our democracy honestly, of the rule of law and our commitment to the rule of law, and the idea that no one is above the law.

Brian: Here is newly installed President Gerald Ford, making the case for healing through a pardon after Watergate crimes brought down Richard Nixon in 1974.

Gerald Ford: I deeply believe in equal justice for all Americans, whatever their station or former station. The law, whether human or divine, is no respecter of persons; but the law is a respecter of reality. The facts, as I see them, are that a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.

During this long period of delay and potential litigation, ugly passions would again be aroused and our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad. In the end, the courts might well hold that Richard Nixon had been denied due process, and the verdict of history would even more be inconclusive with respect to those charges arising out of the period of his Presidency, of which I am presently aware.

Brian: President Gerald Ford in 1974, "During this long period of delay and potential litigation, ugly passions would again be aroused and our people would again be polarized in their opinions. We thought there was nothing new under the sun, Jonathan?

Jonathan: Yes. You see it right there. I think one big picture issue for us all to think about is the way in which politics and the law inevitably become entangled so that you can't make a decision based purely on what the law would seem to require and what this idea of equal treatment under the law, no man being above the law would demand. You can't disentangle that from politics and from the idea that in Ford's words this ugly political polarization that would inevitably follow an attempt to carry out the rule of law. It seems as if we're going to be having the exact same debate now, though the facts, and in many ways to say that the country are very different.

Brian: I think at the time it was highly controversial and initially unpopular, but that with time, Ford's pardon of Nixon has come to be seen in a more positive light. Is that your understanding?

Jonathan: That is exactly right. One clearest example of this was Senator Kennedy, who was a very outspoken critic of the pardon at the time, who later was part of the award ceremony for a profiling courage award to President Ford for doing it. It was actually Ken Starr's investigation of President Clinton that caused him to rethink his attitude toward the pardon.

I think that's pretty representative of the whole country's attitude toward the pardon. However, I think now would be another time to maybe reconsider the wisdom of that pardon because, and I'm not just talking about President Trump here, but I think we've pretty clearly seen since Watergate this growing willingness and almost a sense of impunity really on the part of presidents feeling like they are in many ways above the law and that the powers of this office are so vast that they can do whatever they want.

Whether it is Bush violating international law with the torture of detainees during the War on Terror or Iran-Contra is another example, I think that you might now start to think about the fact that, well, maybe that pardon helped set this precedent that has allowed or empowered presidents to really feel like they were above the law and did that in some ways lead us to this moment?

Brian: With the examples that you just gave, this is not just about Gerald Ford pardoning Nixon. When we look at recent history, it's about George H.W Bush pardoning. He did pardon Iran-Contra criminals and defendants from the Reagan administration, never mind that he was indirectly pardoning himself with William Barr as his attorney general, we'll leave that piece aside. He also warned about a principal, the first President Bush in that context, not to criminalize policy differences. That was part of his argument.

It's also about Barack Obama not wanting to prosecute people in the George W. Bush administration for torture as you mentioned that was their official policy in the Iraq and Afghanistan Wars. There are all those precedents, as you lay them out in your article, leading to this moment. I guess going back to an answer that you gave a few minutes ago, what did you mean when you said there are not only risks from failing to pardon a president, risks from the divisiveness that would come, like Gerald Ford was saying in that clip, there are risks that could come from not prosecuting Trump. What are those risks?

Jonathan: Those risks are that you have once again signaled that the president is above the law. In the case of the Trump presidency this isn't just, I mean you could argue that let's just take the examples of Reagan and Bush that their abuses of power, whether Iran-Contra and the War on Terror, those were policies carried out in what they believed were the national interest, but those were national security concerns.

What we've seen over the last four years is the abuse of power in a very different context. We've seen the stretching of the law impossible, breaking of the law to advance truly that's the personal wealth and agenda and to protect the President and to keep the President in office, frankly, that power was used quite possibly illegally to keep him in office, to get an office and to stay in office.

That's a very different abuse of power and those are potentially very different kinds of crimes. There are already roadmaps for prosecutions, really if several prosecutors wanted to go that route whether it's Michael Cohen and the Campaign Finance Prosecution or even frankly the Mueller report very clearly lays out ten examples of obstruction of justice which could be indicted.

Brian: How quickly we forget. Listeners, what do you think about this? Listeners, have you been thinking about this yet? Would you like to see blanket pardons? I guess it would only be a blanket pardon by President Joe Biden of former president Donald Trump for any federal crimes that he might've committed, Biden camp pardon him for state crimes. We'd have to see what happens mostly here in New York.

Would you like to see Trump prosecuted for some of his potential criminal activities? Because we'd love to take vengeance on him for everything that he did? because you think it's important for setting a precedent, as Jonathan was just talking about how it might be. For the rule of law, for limits to executive power, and executive impunity? Or would you like to not continue the era of Trump polarization and put that part aside? 646-435-7280, 646-435-7280 or with any questions you have for New York Times Magazine correspondent Jonathan Mahler, who's got this brand new piece. I guess this will be in the print edition magazine this coming Sunday, and it's already on the website, rigth?

Jonathan: Exactly. It's online now.

Brian: You lay out very clearly what the major areas of criminal prosecution are that Trump might be vulnerable to. One is financial crimes. Another is election law violations. Another is obstruction of justice. Another is public corruption. The final one is partisan coercion. Listeners, I'm sure these are conjuring in your mind right away, some of the stories from the last four or five years that you're aware of. What's the partisan coercion one? That's the most recent, isn't it?

Jonathan: Yes. I mean, the Hatch Act is really the best, the easiest way to capture that. That's using the federal government and using his official role in the federal government for purely partisan reasons. The Republican national convention, the White House you may recall was a prop for the Republican national convention. The White House is the people's house. That is the property of the people. It's not meant to be used for political purposes.

There are some civil violations of the Hatch Act, which the president is actually exempt from, but there are also criminal provisions of the Hatch Act, which the president is not exempt from. He could very easily be prosecuted. It's never happened before, but the laws exist and he could very easily be prosecuted for that as well.

Brian: Let's take a phone call. Louise in Brooklyn. You're on WNYC. Hi, Louise.

Louise: Good morning, Brian. Thank you for taking my call. I just have a question. I understand from what I hear that many of these investigations and possible prosecutions, which stem from pre-presidency against Trump privately or his corporations. I think that that's the distinction between what is being brought against him, and certainly, what was brought against let's say President Nixon or first President George Bush. Could you just ask your guest to further explain that? Or am I misinformed?

Brian: Jonathan, go ahead. I think she got that right.

Jonathan: You sort of have it half-right. I mean, basically, yes, there's an ongoing investigation which could result in charges that's being conducted by the Manhattan D.A. Cy Vance, and those are for his financial crimes, alleged financial crimes, potential financial crimes, that would have been committed in his private capacity as a businessman. If those were prosecuted, they would be under state law. Those are separate from the federal crimes and the federal crimes are the crimes that possible crimes that would have been committed while he was in office.

Those crimes would include things like obstruction of justice, like the Hatch Act violations that I was just talking about, or even if you wanted to go back a little bit further to his political campaign, the hash money scheme that Michael Cohen was indicted and prosecuted and sent to prison for. Those are campaign finance violations. Basically, the ongoing investigation, those are financial crimes, those are happening in state court.

What we're talking about is sort of a separate set of violations, which are federal crimes, which would have to happen in federal court. As of now, there's nothing, well, we don't know for sure, but it doesn't seem like there's an active investigation on any of those fronts.

Brian: You write in the piece that it would be wrong to think about Trump's behavior as existing on the same spectrum as that of his post-Watergate predecessors. What do you mean by that?

Jonathan: Yes, I mean, it's sort of what I was trying to get at before this idea that I think you've had presidents who've exploited their authority, and possibly in illegal ways, as we saw in the Bush administration, Reagan as well, I mean, some would say the drone strikes and Obama. We've seen that before, but what we haven't seen before is a president exploiting his authority for purely partisan personal reasons.

Whether that is for his own-- like literally for his personal enrichment. His refusal to put his business in a blind trust or to sell his businesses, his use of the office to obstruct investigations into his conduct, his use of his office to try to force the President of Ukraine to launch an investigation into a couple of debunked conspiracy theories, his use of the office to keep himself in office by using the elite quite possibly illegally using the White House as a prop during the Republican national convention. What we haven't seen before is that kind of the use of the office for these purely personal partisan reasons.

Brian: Grace in Manhattan, you're on WNYC. Hi, Grace.

Grace: How are you? Yes, I do not think that Biden should grant any kind of pardon. I really believe that there should be a prosecution of President Trump. There's a complete lack of accountability right now, and I believe that if he's pardoned, we're not going to unite the country. His base is very strongly in support of him. Trump is going to continue to divide the country for the foreseeable future and everything he did was anti-ethical to democracy, to what we stand for as a country. To let that go, I think it's wrong.

Brian: That was a great little slip of the tongue you just made there, Grace, saying anti-ethical. I know you meant antithetical to democracy but also anti-ethical, that's great. We're going to put that in the next Scrabble dictionary at very least. Grace, thank you very much for making that point. I actually think Jay in Brooklyn wants to pick one thing that Grace said, he was already on the line, but I think he wants to amplify one of the things that Grace just said. We're going to let him do that. Jay in Brooklyn, you're on WNYC. Hello.

Jay: Hey, Brian, how's it going? I'm a huge fan.

Brian: Thank you.

Jay: I just wanted to say that, yes, we know how Trump is. He's going to be on TV, or he's going to hope to be on TV, like after his presidency, going to hope to be as vocal as he can be still tweeting out. I think as great and as magnanimous as it would be for Biden to pardon him, I think just let him deal with his court cases and his trials and just gum up his time and keep him as off TV and off of his like predestined track as much as possible.

Brian: Jay, thank you very much. From Grace's comment, and from Jay's comment, I would kind of synthesize this argument that's fairly prevalent on the board of our callers, Jonathan, and that is, it's going to be a circus one way or another. Trump is not going away. He's going to do everything he can to keep that part of the Republican base that continues to follow him as polarized and engaged against Biden as he possibly can. If Biden would be doing this, that is calling off the dogs of the justice department through a formal pardon to heal the country, it's not going to work anyway, so we might as well have accountability under the rule of law.

Jonathan: Yes, that's right. I mean, I think that's a good argument, a good way to think about it. I think you can sort of look at this as a reason to prosecute or a reason not to prosecute. The fact that every other president has gone into their post-presidency and has kept their head down. That's sort of the unwritten agreement. But we all know that of course, that's not going to happen with Donald Trump. It's going to be the opposite. Is that a reason to be wary of prosecuting him, because he's already going to have a huge platform, is already going to really still be the head of the Republican Party or is that in fact, a reason to investigate and prosecute because he's still going to be out there. He's going to have to be dealt with, he's going to have to be held accountable. I think you can look at that either way.

Brian: I could make the opposite argument than the callers made and say, "If the Democrats go down the road of-- well, they're not stopping the polarization so we're not going to stop the polarization." Then we continue to be caught in this national death spiral, politically speaking, and maybe they get something for themselves and for the country by being the high-minded ones and taking the first step out of the vicious cycle. Maybe that would rally people away from Donald Trump, even regardless of what Donald Trump is trying to do.

We're almost out of time, and we have Eric Adams standing by, the Brooklyn borough president, who has a big announcement to make on the show this morning. I just want to get your take briefly on what if Biden does pardon Trump for federal crimes, but the crimes that he's most vulnerable to prosecution for are actually from the Manhattan D.A. and the New York State attorney general? What could they do? Are they left in a political possession of saying, okay, we're going to follow the president's lead and not go down this road for alleged state crimes or no?

Jonathan: No. I think in some ways it's possibly the opposite that the pressure might be a little greater on Cy Vance to follow through with the state prosecution, if that's going to be the only form of accountability for Donald Trump, if he's immune from federal prosecution. I would say that I think there's a danger of one thing happening here and that is for the country and that is that state prosecution which again were for his potential financial crimes as a private businessman, that becomes the avenue of prosecution and that's the end of the story.

Whether the Biden administration chooses to prosecute Donald Trump for federal crimes or not, we need to have a conversation, a debate about that decision, about that process, because those are the crimes that were committed while in office. Those are the crimes that speak to rule of law and speak to the idea of the president holding himself above the law. That's the subject that we really need to be grappling with as a country if we want to restore and preserve the rule of law.

Brian: Jonathan Mahler, his new article for The New York Times Magazine, Individual-1: Donald Trump's potential criminal liability is the key to understanding his presidency, and, when he leaves the office, it will present the country with a historic dilemma. Thanks for sharing it with us, Jonathan.

Jonathan: My pleasure. Thanks for having me, Brian.

 

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