How Biden Should Investigate Trump

This article was published online on December 9, 2020.

I. A Crimes Commission?

As he prepares to occupy the White House, President-elect Joe Biden faces a decision rare in American history: what to do about the man who has just left office, whose personal corruption, disdain for the Constitution, and destructive mismanagement of the federal government are without precedent.

Human beings crave reckoning, even the saintliest among us. Institutions based on rules and laws need systems of accountability. People inside and outside politics have argued forcefully that Biden should take, or at least condone, a maximalist approach to exposing and prosecuting the many transgressions by Donald Trump and his circle—that Biden can’t talk about where America is going without clearly addressing where it has been. In 2019, two professors at Princeton, Julian E. Zelizer and Kevin M. Kruse, argued that the most harmful response to Trump’s offenses would be for Democrats and Republicans to agree to look past them, in hopes of avoiding further partisan division. Eric Swalwell, a Democratic congressman from California, has proposed the creation of a Presidential Crimes Commission, made up of independent prosecutors. In the summer of 2020, Sam Berger of the Center for American Progress, an influential think tank with roots in the Clinton administration, released a detailed blueprint for conducting investigations and possibly prosecutions. It laid out the case this way:

Whenever the Trump administration ends, there may be good-faith concerns that addressing the administration’s misconduct will be too divisive, set a bad precedent, or lead to political pushback from the administration’s supporters. But the lesson from the past four years is clear: The absence of accountability is treated as license to escalate abuses of power.

Joe Biden, who improbably (or impressively) has lived through exactly one-third of America’s history as a republic, is well aware of this line of argument, and of the risks of papering over the sins of the past. He was in the Senate during the Watergate investigations and, later, when the Church Committee investigated Cold War–era crimes and excesses by the CIA. Modern history is replete with instances of societies that were hampered and distorted by their refusal to face difficult truths.Choose a country from almost any point on the globe—Norway, France, Indonesia, Ireland—and people familiar with it can detail the ways that facing or avoiding yesterday’s harsh truths can have effects that last through many tomorrows. The most extreme examples are widely known. They include the Chinese Communist Party’s ongoing suppression of truths about mass starvation in the country during the Great Leap Foward of the 1950s, the terror and chaos during the Cultural Revolution of the 1960s, and the in 1989. Modern Japan’s relations with South Korea, China, the Philippines, Singapore, and other nations in the region still suffer because of Japan’s official muteness about what it did in these countries before and during the Second World