Former FBI Director James Comey writes in a new book that even if there is overwhelming evidence of wrongdoing by Donald Trump while president, the new attorney general in the Biden administration should not pursue a prosecution.
Comey said the Justice Department should not initiate an investigation of the former president, “no matter how compelling the roadmap left” of crimes he may have committed.
“Although those cases might be righteous in a vacuum,” he wrote, “the mission of the next attorney general must be fostering the trust of the American people.”
The stance is surprising coming from the former FBI director, whose abrupt firing in May 2017 served as the catalyst behind the Mueller investigation into Russian election interference and possible Trump campaign contacts with Russia.
Mueller said he did not reach a conclusion on whether Trump committed obstruction of justice, though Attorney General William Barr later said he and then-Deputy Attorney General Rod Rosenstein reviewed evidence laid out in the report and found it insufficient to accuse the president of obstructing the probe.
There are other, far more practical reasons not to prosecute Trump. First, they’d have to find a crime he’s committed. It’s not criminal to disagree politically with Democrats, even though they’d dearly love for that to be true. But finding some specific act that Trump has committed that violated any U.S. statutes to where a prosecutor would have a slam-dunk case is not going to be easy.
Local prosecutors in New York have been investigating Trump for years and have probably found some of Trump’s business and financial dealings suspect. Trump was heavily invested in New York real estate and prosecutors could dig up something on the former president relating to any number of creative transactions. But indictments aren’t going to be handed down the minute he leaves the White House and finding something that would justify indicting a former president without making it appear to be politically motivated will be nearly impossible.
Also, he could never receive a fair trial. They would have to find 12 people without an opinion of Donald Trump. They’d be in jury selection for two years looking for them.
Comey doesn’t think Trump will pardon himself or that Biden would pardon him either.
“By pardoning a resigned president, Ford had held [Nixon] accountable in a way that Trump would not be, even where he to be pardoned after losing re-election. That might not be enough accountability in Trump’s case. Or it may be, especially if local prosecutors in New York charge Trump for a legacy of financial fraud.”
Trump’s pardon power applies only to federal crimes, not state crimes. The president is still facing an investigation from the Manhattan District Attorney’s Office.
Biden probably figures that Trump is going to be the center of attention when he leaves office and doesn’t want him to suck any more oxygen out of the room than necessary. A trial of Trump would be the trial of the millennium. It would be a circus, a freak show, a major embarrassment to the United States and its government.
It will be interesting to see if Biden leans on the prosecutors in New York pursuing the threads of Trump’s business dealings to forgo prosecuting the former president. Unless it’s a case with overwhelming evidence of Trump’s guilt, Trump is likely to be left alone to plan his comeback.