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What Should Biden Do About Trump’s Many Crimes?


It’s pretty clear now that Biden’s strategy to deal with the vast crimes of Donald Trump is to let it go and move the nation forward. This is making at least one senator very unhappy. Sheldon Whitehouse is a highly entertaining person to hear talk, as I can say from personal experience, and he lets his frustration fly on this issue in a New Republic interview.

Would you like to see a systematic re-review of prosecutorial decisions relating to Trump and his executive branch officials that we don’t yet know about undertaken by this new Justice Department?

What I’ve asked—and without any result—has been that the attorney general convene a small advisory group of department veterans who understand the culture and norms and history and values of the department implicitly, and have them take a look at what went wrong, give them a couple of staff folks, and have that be a place where, if you’re very down in some toiling division of the department and somebody asked you to do something awful and you squirrel the file away in a drawer waiting for the day when you had an honest attorney general who wouldn’t fire you for blowing the whistle, now’s your time to come forward.

I operate off the proposition that if Obama had not been, “We’re not going to look back, we’re only going to look forward,” the Trumpsters would have been a lot less bold about doing the reckless damage that they did. I think they took from that the lesson that they’re safe from scrutiny and they’re safe from consequences and they can really put the pedal to the metal trying to wreck these agencies of government and corrupt them because if the worst-case scenario happens and the Democrats win and you get tossed out, then you get a reprieve.


A majority of the Senate voted to convict Trump at the second impeachment trial on what was effectively charged and tried as criminal incitement, even on a very limited factual record. Under the circumstances, that seems to be more than enough of a predicate for the Justice Department to begin an investigation into Trump, communications within the White House, and the like.

My original concern was they were just going to do what I would call a “mopes and dopes” investigation and just make a whole ton of trespass and assault cases against people who broke into the Capitol that day and not bother to look at this as a systemic matter and go after the higher-ups, the kingpins.

If this were a drug case and you did a sweep of everybody selling drugs on the street, and then you didn’t bother to look up to who was funding the operation, who the kingpins were, how it was being structured and managed, you wouldn’t be doing your job as a prosecutor. That’s the point that I wanted to make. If, in the course of developing that, they find more evidence that they think could beyond a reasonable doubt convict people who were part of the incitement for it, they’ll have to make that call, and I wouldn’t rule it out at that point.

I do think that impeachment’s the wrong place to start, though, if you’re the attorney general. You don’t want to say, “There was an impeachment. What was that? Is that predication?” I don’t know. That’s a whole different lane.

I think you want to found your case entirely in your own proper judicial and prosecutorial process and not do anything that borrows from the impeachment or tries to stand on it. Particularly in a circumstance like that, you really want to have gone your own way.

You filed an ethics complaint against Senators Cruz and Hawley concerning their potential involvement in the siege. What’s the status of that at this point?

The ethics committee doesn’t disclose. The policy is that you essentially automatically get a preliminary review. I have no reason to believe that the ethics committee either hasn’t or won’t conduct its preliminary review.

If the preliminary review shows that there’s reason to open a more complete investigation, then they take that step but they don’t tell anyone. That’s kept within the ethics committee. Whether they have gone on to a complete investigation yet is not something that I’m entitled to be told.

The next big disclosure that we’re going to get is either their decision to proceed against someone or a public effort at inquiry—in the form of a subpoena or something like that—or notification that it’s been closed.

This interview is also very Whitehouse is that he starts rather disciplined and then you can read him getting worked up and thus more loquacious. What to do about Trump and the coup supporters in the Senate is a hard one given the circumstances, but I think as we now see with Elise Stefanik replacing Liz Cheney in House leadership, Republicans are fully convinced that they face no negative consequences in supporting a future coup against Democrats. I don’t think Democrats really want to admit this, by and large.

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