A truth commission? How insiders think a Biden administration would handle investigating and even prosecuting Trump

Democratic presidential nominee Joe Biden will have a very full plate should the 2020 election break his way. He'd have to come up with plans for reviving the US economy and keeping Americans safe from COVID-19 while also juggling pent-up demands to address everything from racial disparity to climate change.

But perhaps the most vexing question that would face a Biden presidency is what to do about the last guy who had the job: Donald Trump.

Everything that has happened over the past five years of the Republican's roller-coaster political career suggests he could end up as a defendant in any number of criminal cases brought by federal or state prosecutors once he no longer enjoys the immunity that comes from being president of the United States.

That alone is enough to cause heartburn among Democrats and longtime law-enforcement officials who said tough decisions would loom for both Biden and his Department of Justice as they considered the evidence, history, and political implications swirling around what would be an unprecedented criminal case guaranteed to blot out the sun for pretty much anything else the new president hopes to accomplish on his agenda.

"The worst thing the new administration could do is give the appearance it's on some kind of witch hunt to go back in time and rereview everything that may have happened in the Trump administration," said Greg Brower, a former George W. Bush-appointed federal prosecutor and top FBI liaison to Congress who has also served in the Nevada Senate. "It's also equally bad for a new administration to just ignore it all and look the other way as it tries to move on."

Lock Trump up?

There are no easy answers here, but many Democratic insiders and other law-enforcement experts maintain the best path for a new Democratic president would be to let the normal procedure play out, with FBI-led investigators providing evidence to the relevant US attorneys, who then would make their charging decisions alongside the top brass at the DOJ.

But others say that the prospect of a Trump probe is so significant that the Biden administration would want to go outside the typical law-enforcement channels by appointing a new special counsel, impaneling a wider commission of outside legal experts, or even removing the federal government entirely from the picture in deference to state investigators. 

Any of these ideas could help Biden avoid blame for the kind of 50-car collision that would be associated with a Trump criminal trial, a media spectacle unparalleled in US history that would subsume the country's attention and possibly cripple the new Democratic president's agenda before he can even put on his seat belt, let alone back out of the driveway.

Making matters even more complicated for Biden is that one of the central themes of Trump's presidency has been the politicization of federal prosecutions, both in threatening them against his political enemies ("Lock her up!") and in savaging any attempts by his own DOJ to target allies such as Roger Stone and Michael Flynn

Trump's first term also still isn't up, and Biden-backing Democrats say there's no telling what else could happen that would give criminal investigators even more fodder should they have the green light to go where no other prosecutor has ever gone before: indicting a former US president. 

There's plenty of fertile ground, but Democrats are bracing for the prospect that a lame-duck Trump who loses in November would be unburdened by any personal political consequences and could try to preemptively pardon himself or grant clemency to everyone else in his orbit who is facing legal exposure and whose cooperation with criminal investigators could spell more trouble for him. 

"Even the decision to look at a decision is going to be earth-shattering, much less actually deciding to prosecute, to set aside a pardon or by arguing in court that it's not valid," said Norm Eisen, a former top Obama White House attorney who served as a lead counsel for House Democrats during the Trump impeachment proceeding. "Even the fact you're considering those questions is itself earth-shattering."

Robert Mueller
The special counsel Robert Mueller.
Jonathan Ernst/Reuters

'Once he's out, he is like any other citizen and can be indicted'

Trump and his lawyers have said in legal briefs, courtroom arguments, and media interviews that they're prepared to play legal defense should the 2020 presidential election go to the Democrats.

"Once he's out, he is like any other citizen and can be indicted," Rudy Giuliani, Trump's personal counsel, told Politico in December 2018.

The list is long of possibilities for what Trump could be in legal trouble for on the other end of his presidency. 

For starters, US attorneys from the Southern District of New York labeled the president "Individual-1" as an unindicted coconspirator when his former lawyer Michael Cohen pleaded guilty in 2018 to several crimes, including campaign-finance violations and tax fraud. Federal prosecutors from the same Manhattan office have also subpoenaed Trump's 2016 inaugural committee as part of a probe into whether it was involved in criminal conduct, including whether it accepted illegal foreign contributions.

The DOJ's interests included investigating Giuliani over his business dealings in Ukraine and whether he failed to register as a foreign agent. SDNY has also charged two of the former New York mayor's associates with conspiring to violate foreign-money bans, with a criminal trial in that case looming in early 2021.

Then there's Robert Mueller, the former Russia special counsel who testified in the summer of 2019 about the prospect that the president would indeed be fair game for prosecutors if he were no longer president.

While Mueller didn't pursue his own charges against Trump, he nonetheless outlined in his final 2019 report 11 instances in which his office collected evidence of possible obstruction of justice committed by the president during the course of the Russia probe. 

'I'm not going to rule it in or out.'

George Stephanopoulos asked Biden directly Thursday night during an ABC News town hall what his DOJ would do with the evidence Mueller accumulated.

"What the Biden Justice Department will do is let the Justice Department be the Department of Justice," Biden replied. "Let them make the judgments of who should be prosecuted."

Pressed again on whether he''d weigh in on such an important decision affecting Trump, Biden answered, "I'm not going to rule it in or out. I'm going to hire really first rate prosecutors and people who understand the law like Democrat and Republican administrations have had and let them make the judgment."

Biden's answer just weeks before Election Day is no shift from where he was during the wide-open Democratic primaries. "It's hands-off completely," the former vice president said during an MSNBC town hall in mid-May 2019. 

But it is a departure from where Biden's running mate previous was on the issue.

During an interview with NPR in June 2019, California Sen. Kamala Harris said her DOJ "would have no choice and that they should" prosecute Trump.

Biden isn't a stranger to this question. Back in January 2009, Barack Obama when he was president-elect faced down a left flank clamoring for prosecutions of President George W. Bush, Vice President Dick Cheney, and other GOP administration officials over allegations of crimes tied to the wars in Iraq and Afghanistan and the CIA's "enhanced interrogation" programs.

But Obama told Stephanopoulos in an ABC interview just before he and Biden were sworn in that he had "a belief that we need to look forward as opposed to looking backwards."

Manhattan District Attorney Cyrus Vance Jr. in 2020.
Manhattan District Attorney Cyrus Vance.
Richard Drew / AP

'A sense of reckoning'

In interviews earlier this summer with a half dozen prominent Democrats and former law-enforcement officials, several downplayed the statements that Biden and his primary rivals made on the campaign trail. They said the White House candidates' answers weren't indicative of what a Democratic president and his DOJ would ultimately decide once the full picture was in front of them.

"There will be a strong presumption" of not relitigating the Trump era, Eisen said. But he added, "Presumptions can be overcome."

Eisen predicted any decisions by a Biden administration would be made only after the Trump era has ended and all the evidence has been obtained and examined, though he said there was already enough material just from the Mueller report to charge Trump with obstruction of justice and possibly a wider conspiracy. 

Eisen suggested Biden, faced with the predicament of not being seen as dictating the results, could establish a commission of former lawmakers, state officials, and other neutral experts in criminal law from both sides of the political aisle to examine the record and make recommendations on any charges.

"Not never Trumpers, not anti-Trumpers, but people who will have credibility," Eisen said. "Everyone is going to be attacked but as much as credibility as is possible under the circumstances."

Others see the commission approach as a way to move the debate over Trump's fate outside both the DOJ and the White House.

"I see merits in creating a structure to channel the discontent, the anger, and the concerns about the breaking of all sorts of norms," said Joshua Geltzer, a former senior counterterrorism aide on Obama's National Security Council and a counsel to the DOJ's top national security official. 

It's a structure that could generate "a sense of reckoning with the last few years but also doesn't plunge Joe Biden into meting out punishment against someone who will just have been his political rival," Geltzer said.

Others disagree. Brower said the notion of a comprehensive review of Trump's actions that takes the process outside the normal DOJ channels was the opposite approach that Biden should be aiming for. 

"I'm not going to say it sounds crazy, but it doesn't seem necessary or advisable," he said. Instead, Brower said Biden should just back away and let the DOJ run the Trump case to the ground. 

"They ought to be allowed to do their thing," Brower said. "The idea there should be some commission which will look political seems to be duplicative of the ordinary and to some extent ongoing efforts. I just don't see that making sense."

Ronald Weich, the former top Obama DOJ liaison to Congress, predicted Biden would follow the Obama administration model as it transitioned from the Bush administration.

"It was pretty serious stuff before. It was torture. Going to war with Iraq under false pretenses," Weich, a dean of the University of Baltimore School of Law, said. "I just think there'll be an inclination to run the government in a forward-looking manner."

Geltzer had another solution: Pull the DOJ out of the Trump probes entirely and let state and local prosecutors like Manhattan District Attorney Cyrus Vance proceed with their efforts. Vance secured a Supreme Court victory in July allowing him to subpoena for the president's financial records as part of a grand-jury probe into whether the Trump Organization falsified records connected to hush-money payments used to silence women during the 2016 presidential campaign who alleged to have had romantic affairs with Trump.

Biden's predicament if he wins also comes with other challenges. For one, Trump himself is likely to remain a force all his own, and the prospects are high that he'd be unlike recent former presidents, who have quietly receded into the background to let their successors occupy the spotlight.

"I can't emphasize how loud I expect Donald Trump to be should he become an ex-president," Geltzer said.

There are also timing questions. Let the Trump prosecution issue hang around too long, and Biden risks seeing it dominate the early months of his new administration. But any quick or hasty moves he makes also have the potential to alienate allies who would look back on the Trump era expecting justice. 

"My first impulse, whether they decide charges or not charges, they should wrap up sooner or later so it doesn't drag on," Geltzer said. "But then my competing impulse is to not make it about that."

"To set an arbitrary deadline then feels like the politically driven piece," he added. "It is another tension, and I guess the cop out where I land is I don't think political leadership should be intruding into investigations. That's a cop-out answer if I ever heard one."

Tom LoBianco contributed to this report.