It’s fair to say that I mostly agree with positions taken by Randall D. Eliason, who is an adjunct faculty member and teaches white-collar criminal law at George Washington University Law School. Some of his WAPO articles are listed at https://wapo.st/3nKdvDc

Nevertheless, having addressed the subject of pardons/indictment of Donald Trump (https://bit.ly/3m32c8L),  I feel compelled to respond to this latest set of arguments as to why the U.S. government should let Trump and his family walk away unscathed from the wreckage he has wrought on the country and the treasure he has stolen. https://wapo.st/39fwOk1 So, I plunge ahead.

Eliason’s first argument is,

“Launching criminal investigations into an outgoing president would set a dangerous precedent. In this country, we don’t use the criminal justice system to punish political opponents.”

This is a problematic framing of the issue. The purpose of criminal actions would not be to “punish political opponents.” First, the issue is crimes committed in office, not “punishing political opponents” for being opponents or for pursuing policies with which we disagree. Second, it’s far from clear that Donald Trump will remain a “political opponent” once he is out of the presidency. There is speculation, of course, that he has tasted the drug of political power and, like every addict, will be unable to resist going back for more. But there are a multitude of obstacles to his being a serious political force once he is not commanding the news cycle all day and night every day and night. [For clarity, I am fully aware of my assumption that the media will cease amplifying every stupid and outrageous thing Trump says and does and that it will pay most of its attention to the actual government and what it is doing for the country].

Eliason anticipates my position to some degree, in noting that Trump’s supporters will see criminal investigation as an effort to silence Trump in anticipation of his next run for the presidency. No doubt that is true. The “minds” of politicians like Jim Jordan, Matt Gaetz, Ted Cruz, Marco Rubio and the Grim Reaper Mitch McConnell will explode with endless invective as occurred when Trump was impeached, and Republicans became hysterical even though they knew they would not admit relevant evidence or witnesses of the crimes Trump had committed in the Ukraine affair.

The question on this issue, I respectfully suggest, is not what Republican sycophants will say but whether what they say is worthy of consideration and continuing influence in the nation’s public affairs. Catering to them, I believe, will have the effect of validating Trump’s rhetoric in a way that is fundamentally inconsistent with the core of the country’s reason for existence, it’s “soul,” if you will.

Eliason also argues that many of Trump’s actions are not “actually criminal.” Fine, I have no objection to giving him a pass on those, no matter how offensive his views and behaviors may have been. There are still plenty of grounds for indictment, including the ones that the Democrats, for reasons I have never understood and railed against at the time, failed to bring in the impeachment articles. I refer the ten (minimum) instances of “obstruction of justice” established by the Mueller Investigation. No indictment was brought on those very strong cases only because Department of Justice policy (dubiously) forbad indictment of a sitting president. See https://bit.ly/3768GNI  https://bit.ly/372xCG3 https://bit.ly/35YyjB5  https://bit.ly/35WpnMg https://bit.ly/2UUurKR

There are likely many others, some of which will only be discovered when the documentary record of Trump’s White House is available for inspection (assuming, of course, that they don’t destroy the key documents before exiting). For example, there are the original notes of the call with Ukraine President Zelensky that we were told had been stored in a secure White House server and have never seen the light of day. The records related to the policy of caging kids at the southern border will also make interesting reading. Because Trump was known to destroy documents he created and given other propensities of White House aides to do whatever Trump demanded, there is a high risk that many documents have been destroyed and, if so, there is the question whether such conduct should go unpunished because Republicans don’t care about such niceties as federal record retention laws or the Hatch Act that was deliberately violated repeatedly by Trump’s staff.

Eliason addresses the obstruction of justice issues but resists criminal enforcement because “the Democratic House of Representatives did not even see fit to impeach the president over those alleged crimes.” To that, I retort, “so what?” That was a political decision, one that was terribly misguided in my view, but, in any case, it was not a creditable judgment that a criminal case could not be based on obstruction. I simply don’t understand Eliason’s conclusion that the “book appears largely closed on Trump’s obstruction.”

Eliason then turns to the “other punishments” of Trump’s misconduct, noting that “the country saw his behavior and booted him.” And Eliason is likely right that “Trump is destined to go down in history as an impeached, disgraced president.” Trump won’t care much about the judgment of history, however. He will spend his remaining years in luxury, denying the truth, interfering in political issues solely for attention and generally being disruptive to keep attention on himself.

That leads nicely into Eliason’s final argument, that “criminal investigations would guarantee that the next few years continue to be all about Trump.” My answer is that even if Trump is allowed to just walk away, he will do everything in his power to keep the media attention on himself. And he will be aided in this by the same collection of spineless, traitorous Republican politicians that have been too cowardly to stand up to him for the past four years.

So, while there are respectable arguments that the United States should just write Trump’s presidency off as a terrible mistake and focus entirely on repairing the damage, I continue to believe that such focus will be impossible and will in fact be continually impaired by Trump’s arrogant interference. If he is under criminal indictment, his attorneys will almost certainly advise him to shut his mouth, stop tweeting and behave responsibly for once in his life. He may resist. So be it. But any way you look at this, Trump is going to be around and will refuse to be ignored.

Finally, I observe that in his closing, Eliason acknowledges that grounds may well exist to pursue a former president. He mentions one who “sold our most sensitive intelligence to an enemy.” I remind us all that there were multiple instances in which Trump gave intelligence information to Russian diplomats and in which he destroyed notes or otherwise prevented record-keeping of conversations with leaders such as Vladimir Putin. In these types of cases, Eliason admits that “it would be unimaginable to say that president is immune from prosecution” While he thinks Trump’s record in this regard is not egregious enough, I contend we don’t know enough at this time to reach that conclusion. There are plenty of grounds for concern in the cases I have mentioned. This goes well beyond “norms” and other traditional practices that Trump savaged.

The solution to the problem of “appearances of weaponizing” the Department of Justice is not to do it. President Biden can make clear, and live by his word, that prosecutorial decisions will be made solely by prosecutors and that he will stand by whatever decisions they make. Republicans will scream like stuck pigs, of course, but we have heard more than enough of their false moralizing and false equivalencies for many lifetimes. The republic’s best move, then, in my opinion, is to put Trump on the legal defensive by aggressively pursuing well-founded, sharply focused criminal indictments for his worst crimes in office.