Biden wants to move beyond the Trump era. But the Justice Department and New York state might not be so ready to play along.

  • President-elect Joe Biden has sent strong signals he wants to move beyond Donald Trump's polarizing politics and not look back on the wrongs from the previous administration.
  • But Biden is facing a reality all presidents face: You don't always control your own agenda.
  • Enter the Justice Department, which in a court document released on Tuesday acknowledged a probe into an alleged presidential pardon "bribery conspiracy scheme."
  • That's one of multiple federal investigations and lawsuits that could end up ensnaring Trump once he no longer is in the White House and loses the immunity from prosecution that comes with being president. 
  • Trump could help himself get out of trouble with a preemptive pardon of himself, something that no president before him has ever tried. And some legal observers believe officials in New York state could cause the outgoing president the most legal trouble.
  • "The New York authorities will stop at nothing to go after him," said attorney Alan Dershowitz, who represented Trump during his impeachment trial.
  • Visit Business Insider's homepage for more stories.

Upon winning the presidency, Joe Biden declared last month that this is a "time for America to unite and to heal." 

Biden has since telegraphed his eagerness to move beyond the lame duck Donald Trump and not hamstring his own administration's ambitious policy agenda with what would be a historic and aggressive federal action to prosecute the soon-to-be-former president and allies.  

But the US Department of Justice — as made clear by revelations in court filings Tuesday of a probe into an alleged presidential pardon "bribery conspiracy scheme" — is very much scratching at the Trumpian wounds Biden seeks to mend. 

It's a development that underscores the cold reality every president before Biden has faced: They sometimes can't control their own agenda.  

Making matters even more complicated is the fact the Trump White House has spent the last 3-plus years meddling to considerable degree with DOJ's affairs. That means if Biden truly wants to liberate federal investigators from his predecessor's frequent heavy-handedness and let the Justice Department do its job without presidential interference, the new commander in chief has little choice but to let the DOJ make its own decisions about Trump, former DOJ officials tell Insider.

Under Biden, "we should expect that the DOJ will operate on its own time and operate as it has historically … independent and freed from political influence," said Mary McCord, who served as acting assistant attorney general for national security during the Obama administration.

While the Justice Department will be sensitive to the Biden administration's general policies, "if they think there is sufficient evidence that a federal crime has been committed, they will go forward, and they should," said Ann Ravel, who served as a deputy assistant attorney general during the Obama administration, and later, as Federal Election Commission chairperson.

Some Biden allies want the president-elect to put reconciliation aside and cheer any federal investigation into Trump, who they consider a uniquely corrupt president.

"Joe Biden is making a mistake if he doesn't — he should absolutely do something," said Nate McMurray, a Democratic congressional candidate who drew Donald Trump Jr.'s ire during his unsuccessful bid in November to represent a Western New York district. "Not doing something is a political decision. Doing something is justice."

Representatives from the Biden transition did not respond to requests for comment. 

President-elect Joe Biden has expressed a desire to move beyond the Trump era, but the Department of Justice and officials in New York state may have other plans.Demetrius Freeman/The Washington Post via Getty Images

To fear or not to fear federal investigations

As he exits the White House, Trump faces all manners of legal jeopardy involving his presidency, campaign, businesses, and personal conduct. 

At the federal level, Trump has several potential problems: 

  • The Southern District of New York named the president as "Individual-1" in 2018 court filings when they charged Trump's former lawyer, Michael Cohen, with making illegal hush money payments out of campaign contributions to two women who claimed to have had affairs with Trump.
  • SDNY also has been investigating Trump personal attorney Rudy Giuliani and two associates who were involved in a pressure campaign to get the Ukrainian government to launch an investigation into Biden and his son, Hunter — the same effort that prompted the president's impeachment in the House of Representatives.
  • The Internal Revenue Service is probing his taxes.
  • The attorneys general of Maryland and the District of Columbia have a federal lawsuit pending that alleges Trump violated the Constitution's emoluments clause by making money off foreign officials who stay at the Trump International Hotel in Washington. 
  • There's another lawsuit against Trump's 2017 inauguration organizing committee alleging Trump used nonprofit money to enrich his family business.
  • The 448-page Mueller report into Russian influence during the 2016 election detailed evidence that Trump repeatedly attempted to obstruct justice — and Trump could yet be prosecuted for obstruction crimes once his presidential immunity expires around noon on January 20.
  • Trump's decision to grant clemency to longtime associate Roger Stone helping him avoid a 3-plus year prison sentence and more recently his pardon for former national security adviser Michael Flynn have raised questions about a possible quid pro quo. Former Mueller prosecutor Andrew Weissmann last week on MSNBC said that Biden's attorney general will need to consider whether the president's use of his pardon power in those instances crossed the line into illegality. "Is it really OK to sweep that under the rug, or is it appropriate for him to be held to account for that?" Weissmann asked.
  • The FEC — and Justice Department, too, some former officials there suspect — is investigating whether Trump's campaign disguised nearly $170 million worth of campaign spending "by laundering the funds" through companies led by former campaign manager Brad Parscale or created by Trump campaign lawyers.

Some Democrats are also agitating for an independent, bipartisan "truth commission" that could investigate most any aspect of Trump's presidency, from the shattering of ethical norms to his administration's COVID-19 response.

All the while, Trump has denied wrongdoing, and he remained typically defiant Tuesday as news of a federal pardon probe broke.

"Pardon investigation is Fake News!" Trump tweeted Tuesday night. The White House and Justice Department did not respond Wednesday to requests for comment.

Looming over all of Trump's federal-level legal entanglements is the notion that Trump would attempt to pardon himself — or even resign before Biden's inauguration so that then-President Mike Pence could pardon him.

Not that some Trump allies believe Trump will even seek a pardon. 

"Trump will face no peril at the federal level because Biden is not going to waste his important political capital and resources going after President Trump," attorney Alan Dershowitz, who helped represent Trump during his Senate impeachment trial earlier this year, told Insider.

Meanwhile, the Justice Department, led by Attorney General Bill Barr, has also taken recent action that favors Trump. That includes the secret appointment in October of a new special counsel, John Durham, to probe the underlying decisions that led to the Mueller investigation. It also involves attempts to intervene in a defamation lawsuit brought by E. Jean Carroll, who has accused Trump of raping her during the 1990s.

McCord, who now serves as legal director at Georgetown University Law Center's Institute for Constitutional Advocacy and Protection, predicted the Justice Department next year will proceed with care and caution and follow facts and evidence — and that there's "no chance that the president-elect orders DOJ to do something." 

Even if federal prosecutors move against Trump, it'd be a "foolish expectation" to believe they'd indict him for anything soon after Biden became president, she said, while also noting that they "won't extend investigations if they don't have merit."

New York State Attorney General Letitia James could prove to be one of Donald Trump's most notable post-presidency adversaries.Kathy Willens/Associated Press

New York will 'stop at nothing'

Given these potential federal headwinds, several notable Biden supporters are betting Trump's greatest legal peril lies not in Washington, DC, but in New York state. 

There, state Attorney General Letitia James is civilly investigating whether the Trump Organization illegally inflated the value of its assets in a bid to score tax breaks. Separately, District Attorney of Manhattan Cyrus Vance appears to be criminally investigating whether Trump and the Trump Organization engaged in bank and insurance fraud. 

"It will take a people and a place who are willing to go through hell to defend the rule of law and American ideals. So that rules out Washington," said Adam Parkhomenko, a Democratic political operative who worked for Hillary Clinton's 2016 presidential campaign and as the Democratic National Committee's national field director.

"This is where the Democrats are going to show their true colors," said Nomiki Konst, a Democratic activist and board director for Matriarch PAC, which supports working-class Democratic women running for public office. "The majority of New Yorkers would be elated to see New York take the lead."

Max Steele of American Bridge 21st Century, a pro-Biden super PAC, says Americans should also expect results from some element of the legal system.

"As we've seen over and over again, whenever any facet of life is investigated, grift, fraud, and corruption are found," he said. "Whether it's his taxes, his overseas business dealings, or enriching his family with taxpayer funds as president, Donald Trump's legal problems are just beginning." 

James' office could not be reached for comment Wednesday, but James last month told Hot 97's Ebro in the Morning radio show in New York City that "no one, no one, no one is above the law.

"We have an obligation and a duty to investigate because the Trump organization does business in the state of New York," James said. "I'm only following the facts and the allegations and applying it to the law."

Dershowitz, for his part, agreed that New York state is the arena to watch.

"The New York authorities will stop at nothing to go after him," Dershowitz said. "It's all political. They don't like Trump. Even though I don't think there's any 'there there," it'll be very easy for them to comb the statue books and try to find something."

Source: Read Full Article