Op-Ed: Investigate Donald Trump for criminal acts, just as Mitch McConnell says

Of all people, it was Senate Minority Leader Mitch McConnell (R-Ky.) who explained on the Senate floor Saturday what needs to happen now with Donald Trump: an investigation into whether he committed crimes and — if the evidence warrants — prosecution for any offenses.

McConnell, in trying to defend his vote against a Senate conviction, declared, “President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run. Still liable for everything he did while he was in office. Didn’t get away with anything yet. Yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”

Fine. It’s now time to test those means of accountability as McConnell proposes.

Although this would be unprecedented in American history, the Biden administration should take McConnell’s advice and launch a criminal investigation of Trump. There is no constitutional shield against prosecuting a former president.

Upon taking office, Atty. Gen.-designate Merrick Garland should appoint a special prosecutor to lead the investigation — a person with an impeccable reputation and track record who is widely perceived as nonpartisan.

Although some will consider any prosecution to be politically motivated, the votes of seven Republican senators to convict Trump and McConnell’s full-throated denunciation show that this is not about partisanship. The special prosecutor should be given complete discretion as to what charges, or no charges, to bring. Biden and Garland should make clear that they will play no role whatsoever in the decisions about the investigation or potential prosecution.

At the conclusion of George W. Bush’s presidency, I urged that a criminal investigation be started to look at the actions of those who were responsible for the illegal torture of detainees. The Obama administration, in a desire for unity, decided not to pursue this. But the result was that there never was the accountability that the law should provide.

That failure allowed Vice President Dick Cheney and others to later claim that their actions were justified and desirable, when all of the evidence documented that the torture violated United States and international law.

No doubt it will be tempting for the Biden administration to follow a similar path of not considering criminal charges against Trump. Biden wants to heal divisions and pursue his ambitious agenda. Criminal investigation and prosecution of Trump would be divisive, as we saw with the partisan split in Congress. Moreover, no administration has ever pursued criminal charges against a prior occupant of the White House.

But what makes this different — and therefore unlikely to set a precedent for the future — is that never before has there been a president whose words and actions led directly to a violent insurrection. McConnell laid out the reason for an investigation succinctly:

“There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day. No question about it. The people that stormed this building believed they were acting on the wishes and instructions of their president. And having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories and reckless hyperbole, which the defeated president kept shouting into the largest megaphone on planet Earth.”

There are certainly risks to making this move. If Trump is prosecuted and acquitted, that would allow him to portray himself as a martyr. But every criminal prosecution has the risk of acquittal, and I assume prosecutors will bring only those charges where there is compelling evidence of guilt.

Already some state district attorneys are considering whether Trump violated state criminal laws. Prosecutors in Georgia have announced that they are investigating whether Trump violated state laws in exhorting Georgia Secretary of State Brad Raffensperger on a phone call to “find 11,780 votes.” The Manhattan district attorney’s office is investigating whether the Trump Organization violated state laws, such as insurance fraud, tax fraud or other schemes to defraud.

Why a federal criminal investigation as well? In part, this is because the District of Columbia is controlled by the federal government and therefore the issue of whether Trump incited violence there on Jan. 6 is under the purview of the U.S. attorney’s office for the District of Columbia. And some potential criminal acts prior to Jan. 6 are under the jurisdiction of federal prosecutors only. For instance, it is a matter of federal law as to whether Trump engaged in illegal obstruction of justice during the investigation of Russian involvement in the 2016 presidential election. There is also the question of whether Trump broke federal law in withholding aid to Ukraine, the subject of his first impeachment trial.

Even for matters that might have violated both federal and state law, such as pressuring Georgia election officials to change the vote or illegal tax claims, federal prosecution sends a crucial message about the seriousness of the offenses.

If an independent federal prosecutor concludes that there is not sufficient evidence to warrant criminal charges, that would be enormously important to know. But if Trump violated the law, he should be indicted and prosecuted. No one, especially not the president, can be above the law.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion.