Why Biden might have to let Trump off the hook

Rick Newman
·Senior Columnist
·6-min read

One of the toughest decisions Joe Biden will have to make after he becomes president in January is what to do about his predecessor.

President Trump will leave Biden a long do-list when he departs. Biden says he plans to overturn Trump policies on immigration, pollution, education, health care and many other things. That will be challenge enough for Biden’s Cabinet secretaries, once the Senate confirms them. Tougher still will be the political question of whether to use federal government power to embarrass and perhaps prosecute Trump, or resist partisan pressure to dunk on Trump and leave him alone instead.

One quick test will involve Trump’s federal tax returns. Unlike all other modern presidential candidates, Trump refused to release them, and he has fought aggressively in court to keep his financial information private. New York City District Attorney Cyrus Vance may ultimately get some of Trump’s financial records as part of a probe into fraud at Trump’s real-estate company, with Trump close to exhausting legal appeals meant to prevent disclosure. But those documents would go to a grand jury and remain secret, with no obvious reason they’d become public unless relevant to prosecution.

There’s another effort to get Trump’s tax returns, however, that might succeed under the Biden administration. In 2019, Democrats in the House of Representatives issued subpoenas seeking six years’ of Trump’s tax returns from Trump’s bank and accounting firm. Trump fought the subpoenas, and in July the Supreme Court ruled in his favor. That ruling left a door open for House Democrats to reframe their subpoena and try again. But under Biden, they may not have to.

WILMINGTON, DELAWARE - NOVEMBER 16: U.S. President-elect Joe Biden receives a briefing on the economy in a Zoom meeting with economic advisors at the Queen Theater on November 16, 2020 in Wilmington, Delaware. Mr. Biden continues to work on the long term economic recovery plan his administration will try to put in place when he takes office. (Photo by Joe Raedle/Getty Images)
U.S. President-elect Joe Biden receives a briefing on the economy in a Zoom meeting with economic advisors at the Queen Theater on November 16, 2020 in Wilmington, Delaware. Mr. Biden continues to work on the long term economic recovery plan his administration will try to put in place when he takes office. (Photo by Joe Raedle/Getty Images)

The Internal Revenue Service, which is part of the Treasury Department, could simply hand over Trump’s returns to certain members of Congress, who could then make them public. A 1924 law allows the heads of Congressional tax committees to see anybody’s returns, upon request, but the Trump administration obviously would have fought that, at a minimum tying it up in courts for years. Biden may not fight such a request. Trump would probably sue to block the release of his records, but as a private citizen he’d no longer be able to claim executive privilege, as he has in other cases.

Claims of persecution

At least some Democrats seem certain to keep pushing for Trump’s tax records as they become easier to get. But Biden has promised to be a unifier, after the divisive Trump years—and it would obviously enrage Trump if Biden released records Trump has fought aggressively to keep secret. Trump lost the 2020 election by a substantial margin, yet 73 million Americans still voted for him, and even in defeat Trump has many loyal defenders willing to rally behind him. By releasing Trump’s tax records, Biden would give Trump fresh claims of persecution and keep partisan warfare raging.

While the release of tax records might be embarrassing for Trump, there’s no obvious legal threat. A more precarious problem for Trump would be federal prosecution for activities special prosecutor Robert Mueller highlighted in his probe of the 2016 Trump campaign. Mueller identified several instances of Trump behavior that might have been obstruction of justice, and Trump may also have committed campaign-finance felonies. Mueller could have prosecuted Trump but didn’t, probably because of the difficulty of prosecuting a sitting president. But that complexity won’t exist once Trump is no longer president.

Biden hasn’t said how he’d handle any of these matters. The incoming Vice President, Kamala Harris, said in 2019 that she’d investigate Trump for activities Mueller described if she became president. Many others feel the rule of law requires prosecuting a former president if he broke the law, regardless of the consequences. Others just want vengeance against a man they feel defiled the country and enriched himself at taxpayer expense.

STERLING, VA - NOVEMBER 14: President Donald Trump plays golf at his club, Trump National Golf Club, on November 14, 2020 in Sterling, Virginia. The President is golfing as his supporters are marching in Washington DC to protest the outcome of the 2020 presidential election. (Photo by Samuel Corum/Getty Images)
STERLING, VA - NOVEMBER 14: President Donald Trump plays golf at his club, Trump National Golf Club, on November 14, 2020 in Sterling, Virginia. The President is golfing as his supporters are marching in Washington DC to protest the outcome of the 2020 presidential election. (Photo by Samuel Corum/Getty Images)

One thing seems clear: There would be no partisan unity under Biden if his Justice Department pursues legal claims against Trump that wind through the courts for years. There might not be any unity regardless, even if Biden lets Trump off the hook. But Biden won’t even get credit for trying if he turns over Trump’s tax returns or sends prosecutors after his predecessor. Anybody who voted for Biden hoping he’d offer an olive branch and lower the volume might think differently when they vote in the 2022 midterms or the 2024 presidential election.

Biden might luck out and end up having it both ways. The New York City investigation of Trump and other legal cases might address many of the same charges a federal prosecution would pursue, applying some justice in the absence of a federal case. And Trump’s tax returns could become public in some way that doesn’t involve the Biden Treasury Department. The New York Times, for instance, supposedly has 18 years’ of Trump tax records and might release them once he’s no longer president.

Trump, on the other hand, could make it difficult for Biden to resist taking some kind of action. Trump refuses to accept the legitimacy of Biden’s victory, and may never. He has fomented rebellion to the election outcome, even as president, and he’ll probably be at least as belligerent once he leaves the White House. Trump fires up supporters (and feeds his ego) by mocking and taunting establishmentarians like Biden, and there can be no détente if Trump plans to sustain his political brand. Biden might have pledged to unify the country, but Trump definitely did not.

Rick Newman is the author of four books, including “Rebounders: How Winners Pivot from Setback to Success.” Follow him on Twitter: @rickjnewman. Confidential tip line: rickjnewman@yahoo.com. Encrypted communication available. Click here to get Rick’s stories by email.

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