I have already said that I think Trump should be prosecuted after he leaves office, if prosecutors believe a case is warranted. His numerous acts of obstruction are documented in the Mueller report and include directing his White House counsel Don McGahn to prepare a false memorandum documenting a lie about whether Trump had ordered McGahn to fire Mueller. (He had but wanted McGahn to say he hadn’t.) Trump also directed Michael Cohen to make payments to porn stars to hush them up during his campaign about his sexual dalliances with them from years before. These payments constituted campaign finance violations, acts for which Cohen was himself prosecuted. If the person who made the payment should be prosecuted, so should the person who ordered the payment. If presidents and former presidents are never prosecuted for crimes they commit, they become above the law, and are in this sense like kings.
Andrew Weissmann, one of the Mueller prosecutors, agrees in an op-ed published in the New York Times:
[A]s painful and hard as it may be for the country, I believe the next attorney general should investigate Mr. Trump and, if warranted, prosecute him for potential federal crimes.
. . . .
The evidence against Mr. Trump includes the testimony of Don McGahn, Mr. Trump’s former White House counsel, who detailed how the president ordered the firing of the special counsel and how when that effort was reported in the press, Mr. Trump beseeched Mr. McGahn to deny publicly the truth and, for safe measure, memorialize that falsity in a written memorandum.
The evidence includes Mr. Trump’s efforts to influence the outcome of a deliberating jury in the Manafort trial and his holding out the hope for a pardon to thwart witnesses from cooperating with our investigation. Can anyone even fathom a legitimate reason to dangle a pardon?
His potential criminal liability goes further, to actions before taking office. The Manhattan district attorney is by all appearances conducting a classic white-collar investigation into tax and bank fraud, and the New York attorney general is engaged in a civil investigation into similar allegations, which could quickly turn into a criminal inquiry.
Weissman says it would put the president above the law to immunize him for all his crimes, especially since some of them were committed before he was elected:
Because some of the activities in question predated his presidency, it would be untenable to permit Mr. Trump’s winning a federal election to immunize him from consequences for earlier crimes. We would not countenance that result if a former president was found to have committed a serious violent crime.
Sweeping under the rug Mr. Trump’s federal obstruction would be worse still. The precedent set for not deterring a president’s obstruction of a special counsel investigation would be too costly: It would make any future special counsel investigation toothless and set the presidency de facto above the law. For those who point to the pardon of Richard Nixon by Gerald Ford as precedent for simply looking forward, that is not analogous: Mr. Nixon paid a very heavy price by resigning from the presidency in disgrace for his conduct.
Also, that pardon was wrong — I know, an unpopular view.
Weissmann’s conclusion: “In short, being president should mean you are more accountable, not less, to the rule of law.”
That has not been the case under Donald Trump, and it is one of the key reasons I voted against him. It has to change.