As the days move forward we get closer and closer to everyone finally acknowledging the obvious. States certify the results of the election one by one and eventually the electors will cast their ballots in December. Once that happens it becomes a matter of time. Joe Biden will go from filling out his staff and cabinet to making decisions on policy goals and legacy type decisions.
Perhaps the number one legacy decision to make is what to do about the previous administration. We’ve faced this problem a couple of times before. The Obama administration had to decide whether to prosecute members of the Bush administration all the way to the top and the Ford administration had to do the same with the Nixon administration. They largely neglected to do so. Will Biden follow suit?
He seems to be treading lightly for now. Of course, a part of that could be because he hasn’t officially been named the president elect yet. It’s also because the race was relatively close and hotly contested. He also might not want to tip his hand. This decision has three major considerations. I’ll order them by which one is most important long-term.
Long-term historical ramifications
This cuts both ways. If we consider both the Nixon and Bush cases we notice how different each situation is. The Nixon White House broke the law to maintain power and control and the cover up was considerably worse than the actual crime. In the case of Bush, they may have broken the law to follow policy goals. Those are two entirely different scenarios.
The problem with history is that it is never as simple as it seems. On the one hand, going through with prosecution tells everyone that no one is above the law. On the other hand, it sends a definite signal that politics can be fought everywhere including the court room. Of course, we will get to that one in a second.
The question is whether what Trump and his underlings have done is beyond the scope of normal politics. Was it done to forward a policy objective that you simply disagree with? I’d say in the case of Trump it was done to feather the cap of Trump and his kids. Of course, that’s just my opinion. Courts of law need evidence and justice should always be metered out based on what the actual evidence is and not what we think it might be.
Are we setting a precedent?
This is what I like to call the criminalization of politics. You have to expect that your party will find itself in this same situation someday. Are you comfortable with the opposing party applying the same standard to your party? What standard are we applying? These are all questions to ask before moving forward.
Both political parties have resisted doing this because the wheels of government could very well grind to a halt. Of course, I would be remiss to point out that GOP administrations have had many more indictments and actual jail sentences since the Nixon administration than Democratic ones. It’s not even close. There have been three of each not counting Ford. As you might imagine, the Trump administration is number one with a bullet.
Are we intelligent enough and intellectually honest enough to understand the standard and apply it consistently? If we decide that policy disagreements are off-limits but abuse of power and attacks on democracy are fair game then you could definitely make a go of it. My fear is that we don’t see a whole lot of intellectual honesty these days, so you’d be inviting all kinds of prosecutions in the future.
What does the public want?
This one also cuts both ways. There are some people that voted for Biden because they wanted a return to normalcy and for the fires of partisan bickering to die down. Beginning a series of prosecutions of Trump and his closest advisors will not do that. It could do quite the opposite. It likely will get the MAGA crowd stirred up and understandably so.
So, prosecutions might anger a segment of those that voted for you. On the flip side, not holding them accountable would anger a larger segment of voters. Some people voted Democratic in 2018 and 2020 for the expressed purpose of holding the GOP accountable for their actions. Failing to act might be worse than acting in terms of public opinion.
At the end of the day, you will never please everyone. You might not even please the majority. I put those other two considerations first because ultimately you are put in charge because people respect your judgment. You do what you think is right because the history books will always judge you regardless of what public opinion was at the time.
It’s not a simple cut and dried decision. There are points for and against going for the Trumps in court. The moment seeing them in orange jumpsuits would be a huge cathartic moment for many in the country. The pain to get there and the fallout from it might not be worth it. Then again, it just might be. I wish the president-elect and incoming attorney general the best as they make up their minds.