With Donald Trump hunkered down in the White House and his sycophants floating the idea of committing voter fraud, President-elect Joe Biden seems to be making a concerted effort not to fan the flames. According to NBC News, Biden is likely to discourage investigations into his predecessor, voicing “concerns that [they] would further divide a country he is trying to unite and risk making every day of his presidency about Trump.” This reportedly came from several sources with knowledge of the matter, with one Biden adviser saying, “He’s going to be more oriented toward fixing the problems and moving forward than prosecuting them.”
The question of whether a Biden-era Justice Department would pursue Trump-related probes is a longstanding one. In the run-up to the general election, Biden stated carefully that he would “not interfere with the Justice Department’s judgment of whether or not they think they should pursue a prosecution.” There’s plenty of material to work with, too: in December of last year Trump became the third president in history to face removal by the Senate. While the vote ran along party lines, the charges were abuse of power and obstruction of Congress, citing Trump’s alleged use of government resources to garner election assistance from Ukraine, and his implied pressure campaign on allies to lie about it. What’s more, Trump’s tax returns, finally revealed by a New York Times investigation this year, showed a gross mismanagement of funds within the Trump empire, along with the fact that the president paid only $750 in federal income tax in 2016 and 2017. (Trump maintains that he did nothing improper.) And an investigation was opened into the Trump campaign’s inauguration spending.
After four years of political turmoil and a year filled with incomparable loss, it’s understandable that the Trump era is one many would rather erase from memory. Yet a portion of the country, and some members within Biden’s own party, seem to be hoping for some type of accountability. According to NBC News, “some Democrats have said Biden should be prioritizing the concerns of his supporters, not those of his detractors.” And if the roles were reversed, there’s no doubt what Trump would do. The president has wielded the justice department under Attorney General William Barr against so-called adversaries including Black Lives Matter protestors and the Biden family. Most recently, Barr has held forth regarding the outcome of the 2020 election.
Barbara McQuade, who served as a U.S. attorney under Barack Obama, outlined the dilemma to Fortune earlier this month: “Do we want to be the kind of country that every time someone leaves office their successor charges them for crimes? On the other hand, do we want to be the kind of country where people commit crimes and they have impunity?” Anne Milgram, the former attorney general of New Jersey, put it another way to the New York Times magazine: “This whole presidency has been about someone who thought he was above the law. If he isn’t held accountable for possible crimes, then he literally was above the law.” (The decision of the DOJ under Biden will not impact state-level investigations into Trump, including by Manhattan District Attorney Cyrus Vance Jr.)
While the question of prosecuting a former president has been weighed before, Trump presents a unique case for many reasons. One of those reasons is his massive base of supporters, many of whom exist in an alternative reality that the president has spun for them—one in which the election was stolen, and Biden should not be president. In the past few days, members of the far-right Proud Boys—the same group Trump told to “stand back and stand by,” during the presidential debates—have marched on Washington D.C. as part of the “Stop the Steal” campaign incited by the president’s false claims of voter fraud. It’s difficult to predict the reaction from groups like these to a Trump prosecution, but it isn’t liable to be pretty. Perhaps the most remarkable thing about a Biden presidency, though, is that it won’t be his decision in the end. “The most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department,” an adviser told NBC.
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