“I would want my Justice Department, any future everyday locksmith administration’s Justice Department, to follow the facts and the truth and to make sure at the end of the day that there is accountability and justice,” the former Texas congressman said. “Without that, this idea, this experiment of American democracy comes to a close.”
Next came Harris, who in an NPR podcast interview that aired last Wednesday took the biggest step yet in sizing up what she’d expect from her DOJ on the prosecution front if she defeated Trump in 2020.
“I believe that they would have no choice, and that they should,” said Harris, who also is a former California attorney general and San Francisco district attorney. “I believe there should be accountability. Everyone should be held accountable. And the president is not above the law.”
Then Buttigieg got in on the action. “I would want any credible allegation of criminal behavior to be investigated to the fullest,” he told The Atlantic.
All of the clamoring for Trump’s prosecution — and the parsing of how it would play out — has alarmed law enforcement experts.
“She refrained from chanting, ‘Lock Him Up!’ — for which I suppose we should be grateful,” Ben Wittes, a senior fellow in governance studies at Brookings and the editor-in-chief of the blog Lawfare, wrote of Harris.
He added that while Trump started the bombast in 2016, it nonetheless “is poisonous stuff in a democracy that cares about apolitical law enforcement.”
Many others agree.
Axelrod, the senior Obama-era DOJ official, said it is vital for Trump’s successor to “ensure that the traditional wall of separation between the White House and the Department of Justice on criminal matters is rebuilt,” especially in light of Trump’s possible legal troubles.
Elie Honig, a former federal prosecutor from New York, urged the Democratic candidates to try and stay away from the topic. “It simply is not the president’s job to tell DOJ who to charge or with what crimes, and it’s inappropriate and potentially dangerous for any president do so, in any context,” he said.
Some of the Democrats have since tried to parse their initial remarks — though they aren’t exactly doing much to back away from them.
Democratic candidate Pete Buttigieg said he would want any credible allegations of criminal behavior against Trump “to be investigated to the fullest.” | Al Drago/Bloomberg via Getty Images
Harris later cited the Mueller report’s 10 instances of potential obstruction. “The Department of Justice after this president is no longer in office I would assume that they’re going to take a look at it and take it where the facts may lead them,” she said on MSNBC.
“My Justice Department will be empowered to reach its own conclusions,” Buttigieg said Sunday on CNN, though he also added, “I believe that the rule of law will catch up to this president. It doesn’t require the Oval Office putting any kind of thumb on the scale.”
He also said: “I trust the DOJ to reach the right determination, at least the DOJ that I would … set up. And the less that has to do with the directives coming out of the White House, the better.”
Trump’s replacement wouldn’t be the first modern-day U.S. president to face questions about how prosecutors should treat their predecessor.
President Barack Obama faced pressure from his left to prosecute George W. Bush and Dick Cheney for alleged crimes tied to the Iraq and Afghanistan wars. But as president-elect in 2009, Obama told ABC’s George Stephanopoulos he had “a belief that we need to look forward as opposed to looking backwards.”
Still, the clamor continued. Even as Obama’s top aides early on tried to tamp down talk of plans to charge any Bush-era officials involved in “enhanced interrogation” programs, the dust didn’t settle until Attorney General Eric Holder ruled out prosecutions in August 2012, following an extensive audit.
Bush was spared right before his 2001 inauguration of having to deal with the fallout of a potential post-presidential indictment of Bill Clinton. On his last day in office, the Democratic lame-duck president — who’d been impeached two years earlier by the House but acquitted in the Senate — reached a deal with prosecutors to accept a five-year suspension of his law license, a $25,000 fine and an acknowledgment he’d breached professional conduct in his testimony about sexual misconduct.