Jonathan Chait: “That Trump made it to 2017 without being personally convicted of a crime is itself a testament to the ineffectiveness of white-collar-criminal-law enforcement. That Trump has not been charged since taking office is owed to the privileges of being president of the United States. Because the Justice Department has a policy against charging the president with crimes, it did not indict him for the same crime Cohen went to jail for — even though Trump had ordered Cohen to commit it. The same protection held back Robert Mueller from officially describing the many actions Trump had taken to obstruct the FBI’s investigation as ‘obstruction of justice.’ And his standing as president has allowed him to keep his tax returns out of the hands of New York prosecutors. But at some point, the impunity will end. The law is coming. The political climate will not easily permit a peaceful, straightforward prosecution. The maniacal Republican response to the past two Democratic administrations shows that the prospect of any real Republican cooperation is a fantasy. The fever is not going to break. So what is a post-Trump administration to do?”
“Biden’s position on this problem is easy enough: He will leave it up to the prosecutors. But what will the prosecutors do? The prospect of fitting the orange man for an orange jumpsuit, delicious as it may seem for MSNBC viewers (or readers of this magazine), would create new problems of its own. To begin with, it would be essential that any prosecution of Trump not only be fair and free of any political interference but be seen as fair. A prosecution that appears vindictive would serve only to confirm the politicization of the law that Trump has done so much to advance. Prosecutors in New York and the Justice Department can make every effort to apply the law neutrally, not singling out Trump for punishment, but it will be difficult to avoid the impression of banana-republicanism formed by the sequence of a Trump criminal trial following an election defeat — especially when his supporters have been primed to fight ‘witch hunts’ for years. Want to lock up the ‘Lock her up!’ guy? Good luck avoiding the appearance of turnabout, however legally legitimate the process.'”