The stakes of an indictment would be very high. The commander in chief’s broad powers under the Constitution could make it difficult to secure convictions. The damage to democracy that would be caused by a failed prosecution of a former president is hard to even fathom. An acquittal could also set back future efforts at accountability, and embolden aspiring abusers of authority. Even once he’s out of office, Trump is going to be a powerful force in the country’s political life; putting him on trial for his conduct as president would be tantamount to putting on trial the more than 72 million Americans who voted for his re-election. One institution that Biden will no doubt be focused on trying to rebuild is the Justice Department; prosecuting Trump could complicate any effort to restore the agency’s reputation for independence and integrity. There are logistical issues, too. Prosecuting a former president could mean convicting him, and the idea of sending a former president to prison does indeed seem fantastical.
If history is any guide, the desire to “move on” will only grow stronger in the weeks and months ahead. But how does the country move on from a president whose disregard for the law has been so constant and pervasive? Every president seeks to exploit the immense power of the office, but Trump’s exploitation of this power represented a difference in both degree and kind. Never before had a president leveraged so much of the “energy” of the executive branch — Alexander Hamilton’s word — to advance his personal interests. Presidents Reagan and George W. Bush stretched the limits of their authority in the name of national security. Trump stretched the limits of his authority not just to enrich himself and his family but to block investigations into his personal and official conduct and to maintain his grip on power.
Trump’s conduct as president was a product of his unique character. But it was also enabled by the office. The accumulation of decades’ worth of lawmaking, legal theorizing and historical precedent had given the president almost total freedom from accountability, rendering useless any seemingly applicable tool of law enforcement. Under the special-counsel regulations, the independent prosecutor who was charged with investigating the Trump campaign’s links to Russia effectively served at the pleasure of the Trump administration. The federal prosecutors who indicted Michael Cohen for an illegal campaign-finance scheme were bound to respect a decades-old legal opinion from the Justice Department asserting that the president — who, according to Cohen, directed him to carry out the scheme — was immune from criminal prosecution. There was nothing, and no one, to stop Trump from ordering numerous officials not to cooperate with his impeachment inquiry. Not that this mattered; Trump’s acquittal by the G.O.P.-controlled Senate was a foregone conclusion before the hearings even opened. One after another, Trump’s close associates faced charges for actions committed on his behalf, even as he walked through still more open doors, confident that as long as he remained in office, he was untouchable.
