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  • Biden’s DOJ appears to be hanging back as prosecutors in New York and Georgia investigate Trump.
  • A decision to prosecute Trump would be fraught with political peril in a divided political climate.
  • Biden has consistently said DOJ, not the sitting president, should make the call.
  • See more stories on Insider’s business page.

Donald Trump left the White House three months ago under the cloud of a second Senate impeachment trial, fretting a permanent expulsion from elected office and debating whether to protect himself from federal prosecution with a self-pardon.

But nearly 100 days later, the Justice Department appears to be taking a backseat under the Biden administration to state and local investigators as they pursue investigations that are competing for the distinction of being the first to turn a former president into a criminal defendant.

As former Judge Merrick Garland has settled in as attorney general, there have been no public signals of his department pursuing Trump. At the same time, state and local prosecutors in New York and Georgia have only ramped up their scrutiny of Trump as a businessman and his actions as president.

“I think the truth is Garland wants an investigation of Trump like he wants a hole in the head. It’s the last thing he wants as attorney general,” one former top Justice Department official told Insider.

“I think they will be so reticent to move in that direction, and probably appropriately so,” the ex-official added. “I’d imagine that’s at least the starting point.”

From the 2020 campaign into the early weeks of his presidency, Biden has been asked repeatedly whether he believes Trump should be prosecuted. It’s a loaded question, and the president and his advisors almost surely recognize that a federal case brought against Trump would overtake anything else on his first-term agenda and make governing the country that much more difficult in the current political environment.

It’s also almost certainly why Biden has given varying versions of the same statement that the decision of prosecuting Trump should be left to the attorney general. During a CNN town hall in February, Biden justified his stance on the matter by saying “one of the most serious pieces of damage done by the last administration was the politicizing of the Justice Department.”

Norm Eisen advised House Democrats in the first impeachment of Trump.
Brendan Smialowski / AFP

Quite a problem’

For Garland and his leadership team at the Justice Department, the question of what to do about the previous president presents a test fraught with peril. 

A federal case against Trump would also risk playing into the banana-republic notion of law enforcement serving as a cudgel to be wielded against political opponents, especially after a 2016 election in which Trump’s supporters celebrated the notion of locking up Hillary Clinton. Under Trump’s administration, Attorney General William Barr was widely condemned for intervening in cases to the benefit of Trump’s friends and allies, and Trump himself spoke of how the Justice Department should defend him at all cost.

“It’s quite a problem for Merrick and now for” Lisa Monaco, a former federal prosecutor said, referring to the recently confirmed deputy attorney general who serves as the Justice Department’s second-ranking official.

The department has no shortage of avenues to explore or retread with Trump. His administration featured a pair of impeachments and a procession of headlines about the possibility he’d face federal prosecution over everything from a $130,000 hush-money payment to the adult-film actress Stormy Daniels to a speech on January 6 that was seen as inciting supporters who later stormed the Capitol.

In 2019, after a two-year investigation into Russia’s interference in the 2016 election, the special counsel Robert Mueller submitted a more than 400-page report detailing 10 episodes of possible obstruction of justice by the then-president. As a California senator running in the Democratic presidential primaries, Kamala Harris said just months after the Mueller report’s release that the Justice Department would likely have to pursue criminal obstruction-of-justice charges against Trump if she won the White House.

“I believe that they would have no choice and that they should, yes,” Harris, now Biden’s vice president, told NPR in June 2019.

A year earlier, federal prosecutors in Manhattan named Trump as “Individual 1” in a case targeting Michael Cohen. As part of his guilty plea, Trump’s longtime personal lawyer admitted to paying Daniels, who alleged she had an affair with the former president, in a scheme to silence her in the run-up to the 2016 election.

And then there was January 6, when Trump told a crowd of supporters that “if you don’t fight like hell, you’re not going to have a country anymore,” in remarks that were seen as inciting the deadly rioting at the Capitol.

The remarks gave rise to Trump’s second impeachment, and while he was acquitted, Senate Minority Mitch McConnell said the former president “is still liable for everything he did while in office.”

“He didn’t get away with anything yet,” the Kentucky Republican said after voting to acquit Trump.

In an interview on CBS’s “60 Minutes,” a top federal prosecutor who oversaw the initial wave of Capitol breach cases said the investigation into the rioting could extend up to Trump. Prosecutors are seeking to understand the extent of coordination ahead of the rioting and recently obtained a guilty plea from one participant, who has agreed to cooperate in the investigation.

On that record, many Democrats and other Trump critics have demanded a reckoning for the former president on the belief that no one is above the law. But in a political climate that has cleaved the country in half, Biden has told advisors that he does not want a divisive investigation into his predecessor that would consume his presidency, NBC News reported.

The investigations in New York and Georgia could provide a convenient release valve as demands from many Democrats to hold Trump accountable conflict with the Biden administration’s stated goal of depoliticizing the Justice Department and turning the page after a turbulent four years. 

Norm Eisen, a former aide to House Democrats during Trump’s first impeachment, said as “a practical matter, there’s a very steep hill to climb whenever you have a new administration considering whether to prosecute a predecessor — a defeated, vanquished predecessor.”

The “steep — though rebuttable — presumption against charging the defeated head of a former administration” and “more advanced criminal investigations” in New York and Georgia would play into any decision the Justice Department makes with Trump,” Eisen said.

“On the federal level, we shall see,” added Eisen, who in 2018 coauthored a report outlining an obstruction case against Trump.

Attorney General Merrick Garland said at his Senate confirmation hearing that he was “immune” from political pressure.
Demetrius Freeman/The Washington Post via Getty Images

Treading lightly

Former Justice Department officials told Insider the department would have to balance the strength of any case charging Trump against the perception, however fair, that the prosecution was politically motivated.

For the department to bring a case, they said the evidence against Trump would need to be overwhelming to render a decision not to prosecute — based strictly on his status as a former president — untenable.

Garland and other Justice Department leaders would need to tread carefully in considering an investigation or case against Trump. In interviews, some former Justice Department officials said the Biden-appointed leadership could start by arranging an initial assessment of Trump’s legal risk, while stopping short of taking steps that could become public. 

“If I’m Garland and Monaco, I get a briefing that I don’t tell anybody about,” the former federal prosecutor said. “I figure out if there’s a way to do an initial review without sending out grandjury subpoenas and without going public.”

Garland has managed to avoid showing any public sign of his thinking on Trump’s legal liability. During his Senate confirmation hearing in February, Sen. Josh Hawley referenced a petition circulated by a progressive group urging Garland to pursue criminal charges against the former president. The Missouri Republican then pressed the attorney-general nominee on whether he’d pledge to “enforce the law equally” and resist pressure to “use political targeting.”

“I have grown pretty immune to any kind of pressure, other than the pressure to do what I think is the right thing given the facts and the law,” Garland replied, adding: “That is what I intend to do as the attorney general.”

A Justice Department spokesman declined to comment. 

Manhattan District Attorney Cy Vance.
Jeenah Moon/Getty Image

‘Something is going to happen’

Trump and his advisors are so far shrugging off the notion that the former president faces legal exposure from the Justice Department over his comments on January 6.

Insider previously reported they saw more risk in the investigation led by Manhattan District Attorney Cy Vance into Trump’s financial dealings and the inquiry in Georgia, where Trump called top state officials asking for them to “find” enough votes to overturn the 2020 election results.

Trump’s team has reason to be more concerned about the state and local jurisdictions. In Georgia’s Fulton County, District Attorney Fani Willis revamped her office’s public-integrity unit, which is investigating Trump over his efforts to overturn the state’s election results.

And in New York, Vance’s office recently prevailed against Trump in a Supreme Court case over access to his financial records. Vance also has recruited a former federal prosecutor, Mark Pomerantz.

“He didn’t go there just for fun. He went there because he thinks something is going to happen,” the former federal prosecutor said.

Sen. Mazie Hirono, left, with Garland before his Senate confirmation hearing.
Drew Angerer/Getty Images

Senate Democrats standing by

In interviews, Senate Democrats have told Insider they have confidence in Garland as he seeks to restore the Justice Department’s independence and integrity on the heels of the Trump era.

Sen. Mazie Hirono, a Hawaii Democrat and member of the Senate Judiciary Committee, said the Justice Department’s apparent approach so far in the administration was understandable given how Trump treated it as “his very own law firm.”

“You have a lot of wonderful career lawyers there and staff people,” she told Insider. “And I think it was difficult to be there with an attorney general who, in my view, acted like he was the president’s lawyer.”

Sen. Chris Coons of Delaware, a member of the Senate Judiciary Committee and Biden confidant, said he was not concerned with the lack of information around a federal prosecution of Trump.

“I have confidence that under Attorney General Merrick Garland, whatever decision will be made, whatever process is followed, will be independent of partisan or political concerns,” he told Insider.

Echoing Biden’s remarks about the risks of a Trump prosecution, Sen. Debbie Stabenow said she remained concerned about “what Trump did and the legal ramifications of it” in connection with the January 6 riot but appreciated that the administration faced other pressing challenges.

“No. 1 has got to be COVID, and saving lives and getting people back on their feet with the economy,” the Michigan Democrat told Insider. “But I do trust that they’re thoughtfully looking at things.”

This story originally published on April 23, 2021.