Yesterday, Josh Blackman, law professor at South Texas College of Law, posted this blog: Would President Biden's Nominee for Attorney General Pledge Not to Prosecute Former-President Trump? (The Volokh Conspiracy 11/8/20), here. Blackman argues that the Senate, controlled by Republicans, can condition advice and consent to the Attorney General nominee upon the AG nominee agreeing or promising not to prosecute Trump and his associates (whatever associates really means, see below). I understand that prosecuting Trump for crimes is probably not good for the country, given the passion that almost half the country has for Trump. I think, however, there is some reason to warrant further investigation as to whether Trump committed serious crimes, including tax crimes, I thought I would state my thoughts on what might be a good resolution of the issue. I frame my thoughts in terms of tax crimes but it would apply generally for all federal crimes. And, I frame the discussion in terms of nonprosecution (whether that nonprosecution takes the form of Presidential pardon, full letter immunity, or nonprosecution agreement).
1. The tax crimes for which nonprosecution is granted to Trump should be identified perhaps without specifying details (such as specific years or tax loss, etc.). The nonprosecution could be, for example, for all tax or tax related crimes prior to January 2021. The tax crimes could be listed such as 26 U.S.C. § 7201 (tax evasion) or 18 U.S.C. § 371 (tax conspiracy, offense or defraud). [As I said above, a similar technique could be applied for other crimes, but I think the crimes for which the country grants nonprosecution should be named.] I don’t think that Trump should be required to admit specific crimes in the nonprosecution agreement, because he simply won’t do that and investigating the crimes would take too much time and be divisive. Any crimes Trump commits after January 2021 are not within the scope of nonprosecution.
2. In return for the country’s gift of nonprosecution, Trump must pledge that he will not attempt to pardon himself or any of his “associates” as Blackman calls them. [This will require that the agreement be reached before he leaves office.] I would include in associates that he will not pardon the following: V.P. Pence and all White House officers or appointees (even if serving in a voluntary capacity), cabinet-level appointees, all agency political appointees, all Trump family members, all Trump off-the-Government books minions (like Rudy Giuliani, etc., and Trump players such as Manafort, Stone, etc.), and Trump’s affiliated business entities and their officers, employees or agents. (This may not be a complete list.)
3. Trump’s civil liabilities to the Government may be pursued. In the tax area, Trump must agree to cooperate with the IRS and DOJ Tax as necessary to determine tax liabilities, penalties and interest for himself and his affiliated entities. Trump may still assert any defenses he may otherwise have (e.g., nonliability for the tax or penalties, statutes of limitations, etc.), but Trump must assist and cooperate with the IRS and DOJ Tax in the determination of his liabilities. On the statute of limitations issue, for years not otherwise within the three or six-year statute of limitations, the IRS would still have to meet the substantial burden of proving fraud by clear and convincing evidence. (I mention DOJ Tax here only protectively, for the determination of the liabilities is initially an IRS function alone unless it somehow gets to court.)
4. In order to ensure that Trump meets his duty to cooperate, I think the nonprosecution should take the form of a nonprosecution agreement conditioned on the cooperation mentioned in par. 3 and committing President Biden to grant Trump a pardon when the IRS and DOJ Tax, if appropriate, certify that Trump’s agreement to cooperate has been satisfied. That should be coupled with, as usual for nonprosecution agreements, a suspension and waiver of the statute of limitations on all offenses where the statute is open as of the date of the agreement.
5. If Trump fails to meet the cooperation requirement, he then may be prosecuted for all crimes – those committed prior to January 2021 and after January 2021.
Of course, the major issue here for Trump will be the requirement for cooperation. With Trump’s propensity to lie, I think he will take substantial risk in his testimony or proffers being lies, thus opening him up for prosecutions for the new crimes resulting from his lies.
To summarize, I think the United States should forego prosecuting Trump and promise that it will so forego prosecution upon conditions such as those stated herein for tax crimes and for other types of crimes. This will permit us to move on, even at the cost of giving Trump a pass for crimes solely because he was President with a substantial national following. But, these are just my ideas.
And this does not deal with the potential prosecution for state crimes. But, if some consensus could be reached not to prosecute for federal crimes, perhaps that consensus could carry forward to state crimes as well.
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