What will his presidency be consumed with if not this?

Republicans are going to control the Senate and Pelosi’s majority in the House will be narrow enough that she won’t be able to do much of anything. Sleepy Joe can try his hand at executive orders, but some of the most ambitious ones are destined to be tossed out in court.

Once the COVID vaccination process is rolling, there’ll be nothing for American government to do except bring back the Trump show — this time as a courtroom drama.

With one exception, I don’t disagree with anything Ed wrote in this post last night about the similar dilemma Team Biden is facing on whether to let the IRS hand over Trump’s tax returns to House Democrats. The more the Biden administration comes after Trump, the thinner Biden’s rhetoric about unity and national healing will seem to people who weren’t receptive to it in the first place. Prosecuting the ex-president for crimes will also set off a logic of partisan reprisal just as surely as court-packing would have. Outraged righties will demand that Biden, or his son, be prosecuted once Republicans reclaim the White House. The point of electing Sleepy Joe was to try to get off this track in which government machinery is forever being used to punish one’s partisan opponents.

The one part of Ed’s post I disagree with is this: “If Democrats use their House majority in 2021 to go after Trump’s tax returns, Republicans could very well do the same in 2023 if they win control of the House back. Rather than go after Joe Biden, though, they could go after the tax returns of Hunter Biden, and James Biden, both of whom seem to have prospered from connections to Joe, while claiming legislative privilege on ethics enforcement.” A new Republican House majority is going to do that no matter what Biden’s DOJ does or doesn’t do with respect to prosecuting Trump. The GOP will be in the same bind as Biden is, its policy agenda (to the extent that it has a policy agenda) paralyzed by divided government. Might as well issue some subpoenas, if only to avoid primary challenges back home.

Biden has raised concerns that investigations would further divide a country he is trying to unite and risk making every day of his presidency about Trump, said the sources, who spoke on background to offer details of private conversations.

They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he “just wants to move on.”

“His overarching view is that we need to move the country forward,” an adviser said. “But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department.”

Biden’s team is also reluctant to send any signal to Trump administration officials that the Justice Department wouldn’t look into their actions, given that there are still nine weeks until the inauguration, another person briefed about the discussions said.

Ironically, although Biden will soon be the most powerful person in the world, he’s largely powerless over what happens here if he sticks with his intended approach. He wants to restore the norm of DOJ independence after Trump made a grotesque spectacle of leaning on Bill Barr to produce the results of the Durham investigation and on Chris Wray to charge Hunter Biden with something before Election Day. Barr cutting sweetheart deals for Trump cronies like Mike Flynn and Roger Stone and then authorizing U.S. Attorneys to investigate voter fraud while the vote-counting is still going on are part of it too. Sleepy Joe wants to undo the Roy-Cohn-ification of the Justice Department. But if he’s true to his word about not meddling with the DOJ then the momentous decision about whether to charge Trump with something, deepening the partisan bias in the country at a moment when Biden’s trying to ease it, will be completely out of his hands.

And no, that arm’s-length approach won’t give him any political “cover” if charges are brought by his handpicked Attorney General, as NBC speculates. Voters will hold him personally responsible, for good or ill.

I may be a Never Trumper but I think Biden’s instincts are sound that prosecuting Trump would do more harm than good and would swallow up attention that should be devoted to more important things, like getting people vaccinated. (If you’re wondering what he could conceivably be prosecuted for, this lo-o-ong NYT piece today raises multiple possibilities, some stronger than others.) I feel about it the way I do about the increasingly cutthroat tactics used to confirm SCOTUS justices: Even when I like the outcome, like Amy Coney Barrett being confirmed, basic civic harmony requires that someone finally end the endless cycle of reprisals.

But I also understand why lefties think Trump is a special case. It’s not just that he surrounded himself with people like Manafort, Stone, and Bannon who ended up in legal trouble. It’s that he clearly relished the impunity he enjoyed as president. A core argument made in his “defense” during the Mueller investigation was that a sitting president simply can’t be prosecuted for committing crimes (at least not without his consent) because the power of prosecution under the Constitution resides in him. That is, he’s above the law. Last year Trump’s lawyer argued in state court in New York that the president could literally shoot someone on Fifth Avenue and he’d be untouchable until he left office. I can’t find the link right now but I remember reading in a story written shortly after the GOP convention about how much Trump enjoyed using the White House as a backdrop, because even though that flagrantly violated the spirit of the Hatch Act there was nothing anyone could do to stop him. Lesser federal employees aren’t so lucky. The biggest remaining mystery of his lame-duck presidency is whether he’ll start handing corrupt pardons to all of his cronies, and maybe to himself.

He was above the law, obviously savored it, and now the Biden DOJ’s going to give him a free pass on it. Some of the things he does that aren’t illegal, like leaning on Barr and Wray or spending the past two weeks hallucinating about a massive voter-fraud conspiracy in order to delegitimize the incoming president, are as bad as crimes. He’s a civic arsonist; to watch him run around setting fires and nonetheless conclude that he shouldn’t be prosecuted for any actual crime he may have committed because too many people would have the sadz to see him held accountable feels itself like an act of civic arson, in keeping with the series of moral compromises a nihilist like Trump is forever forcing on the people around him. The best I can do to justify it is to say it’s a sort of controlled burn. Prosecuting him would set a bigger fire than not prosecuting him would, so the “responsible” thing to do is set the smaller fire instead. The country burns either way, though.

Besides, Biden may yet see Trump charged with something even if the DOJ stands down. The state-level investigations that are pending in New York may result in charges. Biden will still pay a political price for that as Democrats writ large would be blamed but he wouldn’t be as culpable as he would if his own Justice Department filed charges. I think that’s the “compromise” his AG will settle on: The DOJ won’t pursue Trump, but if New York prosecutors come after him, oh well. Especially since a Trump weakened by legal battles is a Trump less likely to win in 2024.