Prosecuting Trump for pre-presidential or nonpresidential actions would be easier, less freighted with questions about criminalizing the operations of government, than a case centered on his actions as president. Here, the possibilities are abundant. For example, whether his manipulations of the tax code amount to criminal tax fraud, or whether he violated campaign finance laws by covering up his hush money payments. And the questions are reasonably straightforward: Can a case be proven? Would charges be brought against someone else with the same fact pattern?
Sometimes the prominence of a potential defendant plays a role in deciding to seek an indictment, because part of the function of criminal prosecution is to deter other offenders, as well as to demonstrate that the powerful are not exempt from punishment. In this situation, Trump’s celebrity should not be held against him; the risk of appearing vindictive is too great. But if the facts support prosecution — and if others in the same situation would be charged — there should be little hesitation about proceeding.
On the federal level, it is essential that President-elect Joe Biden stay entirely out of the conversation, and that he select an attorney general whose judgment is impeccable — and who will not be, or be viewed as, a partisan operator, either being punitive toward Trump or bending to Biden’s apparent desires. What might be in Biden’s interest — trying to put Trump and his misconduct in the rearview mirror — is not necessarily congruent with the public interest.