President-elect Joe Biden is entering the White House with a weighty demand from fellow Democrats: grant your Justice Department power to investigate and prosecute your predecessor.
Biden, who will be inaugurated—despite every conceivable attempt by President Donald Trump to prevent that from happening—as the 46th president on Wednesday, has resolutely promised to separate his administration’s political affairs from the DOJ he’ll soon inherit, vowing total independence and delighting many who have longed for a restoration of the most basic democratic principles tested over the past four years.
But that hasn’t stopped Democrats from urging that his incoming DOJ investigate and potentially prosecute the man who inspired an insurrection at the Capitol earlier this month. Interviews with leading activists, party members, legal scholars, and one vocal member of Congress reveal an emerging belief that the department should hold Trump criminally accountable for the violent riots and his attempt to sway the election in Georgia.
“I think back to when I’m in therapy,” said Rahna Epting, the executive director of the progressive organization MoveOn. “My therapist says: What’s really important for healing is for the acknowledgment of the injury to have actually happened by the perpetrator. We need people to own up, we need people to admit to their lies. We need the truth to be known,” she said. “Without that, healing is just repressing.”
Epting is not alone. The attitude that Trump and any affiliated associates should be charged for inspiring deadly violence in the nation’s capital has escalated in the riot’s aftermath, as Biden prepares to be sworn into office around a theme of “unity” and as the former president still baselessly hangs on to the idea that he won the election.
“No one wants to have to launch a massive investigation into the former administration,” Epting said. “But we have no other choice. If they choose to backburner that, I think they’re going to be forced to deal with it one way or another because this threat that has been whipped up on the right is not going to just disappear.”
Rep. Bill Pascrell (D-NJ), who has publicly called for sweeping criminal investigations of Trump, his family, and his administration after he leaves office, went a step further. After witnessing the magnitude of the siege on his workplace, the Democratic congressman said that he would likely “lose confidence” in Biden if he does not allow his DOJ to prosecute Trump.
“The president made the Justice Department part of his inner circle. Joe has stated very clearly he will not tell the Justice Department what to do, but he will not shirk from his responsibility,” Pascrell told The Daily Beast. “If he ignores that second point … then I’ll probably lose confidence in him. When you’re looking back and defending democracy, you’re looking forward, you’re thinking of our kids and grandkids. I see that as his responsibility.”
One week after the Capitol attack, Trump was impeached for the second time by the House on one charge of “incitement of insurrection.” Regardless of whether Trump is convicted in a Senate trial—which would carry a lifetime ban on him holding federal office—some Democrats believe his actions that day merit criminal charges, even Sen. Joe Manchin (D-WV), the most conservative Democrat in the upper chamber of Congress.
Even before Jan. 6, some Democrats felt Trump and his close associates were vulnerable to criminal prosecution on other fronts, including his possible obstruction of justice in the course of Special Counsel Robert Mueller’s investigation into his campaign’s ties with Russia in 2016. The day before the riot, Rep. Jim Clyburn (D-SC), the third-ranking Democrat in the House and a key Biden ally, expressed hope that DOJ might prosecute Trump for urging the Georgia Secretary of State to toss out the state’s presidential election result, after a call between the two men leaked.
Still, the majority of congressional Democrats have yet to weigh in on prosecuting the ex-president. Many lawmakers, particularly senior ones, have been queasy at the notion of pursuing criminal charges against Trump—no matter how merited—out of concern over the precedent it could set.
Biden, too, appears to have some concerns. On Jan. 7, he unveiled Judge Merrick Garland as his choice to lead the beleaguered department out of an extended period of internal corrosion. When announcing Garland, who was previously nominated by President Barack Obama to be a Supreme Court justice, Biden diligently restated his intention for the body to remain wholly independent.
“I want to be clear to those who lead this department who you will serve: You won’t work for me. You are not the president’s or the vice president’s lawyer,” Biden said. “Your loyalty is not to me. It’s to the law, the Constitution, the people of this nation.”
He continued: “We need to restore the honor, the integrity, the independence of the DOJ of this nation that has been so badly damaged.” Garland agreed.
Leading up to Inauguration Day, one of the biggest forces in the party’s infrastructure, the Democratic National Committee, was grappling with how to push constructively towards investigations and prosecutions. One DNC member said that currently there are “lots of conversations happening” about how to tackle accountability at the national party level. The committee, which will support the Biden administration’s policy agenda from the outside, will not have a formal role in any potential probes.
The shock of the domestic terrorism, nonetheless, inspired some party officials to consider ways to encourage leaders to demand accountability, citing the need to reestablish a culture of consequences that will outlast Trump’s time in office. The former president has not offered any regret for cozying up to his old Attorney General Bill Barr and subsequently turning on him after he refused to engage in factless musings about national voter fraud.
“There’s many folks that believe very strongly that for his country to actually unify and to heal, we need accountability,” the DNC source said. “There’s lots of conversations happening all over the place about how to do that.” Those discussions are occurring as former South Carolina Senate nominee Jaime Harrison is set to take the helm of the DNC from current Chairman Tom Perez.
Others have gone directly to members of Biden’s transition team to stress the importance of potential prosecutions by framing them around a ballooning culture of white supremacy and extremism.
“Insurrection and a failed coup attempt. That is treason. And any people involved should be treated as such, including the current president,” said Derrick Johnson, the president of the NAACP. According to Johnson, members of his organization have approached Biden transition officials behind closed doors to detail concerns from Black Americans about the severity of the threat.
“The incoming Justice Department must address domestic terrorism and white supremacist activity,” Johnson said. “They have a legal obligation to do so.”
In April 2019, Biden launched his primary campaign by referencing the destruction caused by the white supremacist-led riots in Charlottesville, Va. Over a year and a half later, those in his circle are still mapping out how to effectively combat the home-grown threat in the United States. On Tuesday, Avril Haines, Biden’s nominee for Director of National Intelligence, did not explicitly say that intelligence agencies would take central roles in controlling the threat of “white nationalism,” but would instead work with other agencies to build on their efforts.
The still-tense landscape comes as Vice President-elect Kamala Harris is slated to become the first female and woman of color to hold that title. Harris, a former chief prosecutor in California, has long lamented Trump’s erratic behavior and indicated during her own presidential campaign where she may come down on the issue of prosecution.
Harris told NPR in June 2019 that DOJ officials “would have no choice and that they should, yes," when asked if she would permit her hypothetical DOJ to go forward with criminal charges. “Everyone should be held accountable, and the president is not above the law.”
Now, even some non-partisan legal organizations have taken firm pro-prosecution stances in the midst of extenuating circumstances and, in the view of one top lawyer, “dangerous” conduct on the part of the former president himself.
“I understand that there are strong norms against prosecuting the previous administration, and that those norms exist for good reason, but I also think that a lot of what the president has done—particularly his pattern of conduct in the last two months—is incredibly dangerous for our democracy,” said Kate Ruane, senior legislative counsel at the American Civil Liberties Union.
“There must, in my view, be consequences for that behavior that threatens the very core of our republic.”