In August 2020, then-Secretary of State Mike Pompeo turned a diplomatic mission to the Middle East into a political event when he addressed the Republican National Convention in a video from Jerusalem with the Western Wall in the background. Pompeo made repeated references to President Donald Trump’s pro-Israel policies, the subject of his official diplomatic mission.
If crimes were committed, even by the former president himself, then they should be prosecuted.
The State Department had already been in the middle of Trump’s scheme to hold up U.S. aid for Ukraine unless Ukraine began a criminal investigation of Democratic presidential candidate Joe Biden and his son Hunter Biden. That, of course, was the subject of Trump’s first impeachment, during which the Senate, then controlled by Republicans, refused even to hear witnesses.
It is a federal crime for “any person to intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, command, or coerce, any employee of the Federal Government … to engage in, or not to engage in, any political activity.”
The “any person” mentioned in 18 USC 610 of the federal code does not exclude a former president like Trump, who did “intimidate, threaten, command, or coerce” federal employees, mostly his own appointees, into political activity in support of his re-election campaign. Trump’s coercion intensified after he lost the election, and he leaned on the Justice Department and the military to redo the 2020 election.
More than 30 years ago, then-Sen. Joe Biden argued persuasively that special prosecutors are needed when high-ranking officials shatter the public’s faith in the government’s integrity. He’s president now, and his attorney general, Merrick Garland, has the authority to appoint a special counsel to investigate and prosecute allegations of crimes by Trump and others, including violations of the political coercion statute.
Garland not only has that authority, but he also has the obligation. If crimes were committed, even by the former president himself, then they should be prosecuted.
The evidence is overwhelming that Trump repeatedly violated the criminal statute prohibiting coercion.
In October, Claire Finkelstein, a professor at the University of Pennsylvania, and I filed a criminal complaint with the Justice Department requesting an investigation of whether Trump violated the political coercion statute. We pointed to extreme politicization, on the president’s orders, in federal agencies, including the State Department and the Postal Service.
The evidence is overwhelming that Trump repeatedly violated the criminal statute prohibiting coercion.
Postmaster General Louis DeJoy, a Trump appointee, changed mail-delivery processes in the summer of 2020, just in time to wreak maximum havoc on the mail and sow skepticism among voters about mail-in voting.
Perhaps worst of all was the extreme politicization of the Justice Department under Attorney General William Barr, who was pressured by Trump to support his re-election and who, in turn, directed subordinates at the Justice Department to engage in missions that could only be characterized as political.
That politicization included Barr’s firing in May 2020 of Jeffrey Berman, the U.S. attorney in Manhattan, as Berman was in the middle of several investigations that were sensitive to Trump and his campaign. It included political interference in Justice Department criminal proceedings against Trump campaign aides Roger Stone and Michael Flynn and Barr’s involvement in the assault by federal officers on peaceful protesters in Lafayette Square near the White House.
That assault was immediately followed by Trump’s appearing in a campaign photo op holding a Bible outside St. John’s Episcopal Church.
According to reporting from the Washington Examiner, a report detailing abuses inside the Justice Department had an impact on Barr: “Trump said Barr ‘became a different man’ after two ethics groups in October called for his impeachment, with the University of Pennsylvania’s Center for Ethics and the Rule of Law and Citizens for Responsibility and Ethics in Washington arguing he used his position as attorney general for political purposes to aid the former president.”
After Barr resigned, Trump put extraordinary pressure on his successor, acting Attorney General Jeffrey Rosen, to invalidate the election. Jeffrey Clark, a Trump political employee at the Justice Department, drafted a Justice Department memorandum for Rosen’s signature purporting to have found “election fraud.”
Had Rosen signed it, the memo would have been an official finding by the Justice Department that the election was invalid, justifying whatever steps Trump believed were necessary to force a new and “fair” election. Despite pressure from Trump and his political allies, Rosen refused.
In late November, Trump met with Flynn, his former national security adviser, and others in the White House to discuss the possibility of using his powers as commander-in-chief to declare martial law and order federal troops to assist with redoing the election.
Biden need only read his own law review article to figure out what to do about it.
According to a soon-to-be published book by Washington Post reporters Bob Woodward and Robert Costa, Army Gen. Mark Milley, chairman of the Joint Chiefs of Staff, was so concerned about Trump’s mental state that he told military leaders that they’d have to run any order from Trump to use a nuclear weapon through him. A previous book had already revealed Milley’s concerns about Trump’s behavior as his term approached its end. According to the book “I Alone Can Fix It: Donald J. Trump’s Catastrophic Final Year,” by Washington Post reporters Philip Rucker and Carol Leonnig, America came uncomfortably close to a military coup. “This is a Reichstag moment,” Milley reportedly told aides in January. “The gospel of the Führer.”
In denying that he talked to Milley about a coup, Trump said, “I saw at that moment he had no courage or skill, certainly not the type of person I would be talking ‘coup’ with.” According to Milley’s account, Trump wanted a coup but did not have the military’s support. Would that have been the case had Rosen signed that memo declaring election fraud? All of the above occurred before Trump is alleged to have incited an insurrection by a mob of his supporters on Jan. 6. Reinforcements for the U.S. Capitol Police were slow to arrive, and we do not yet know whether Trump or anyone else considered sending in federal troops or providing other federal assistance to the rioters. The events of Jan. 6 should be the subject of another Justice Department criminal investigation extending well beyond the foot soldiers who have been charged with invading the Capitol. Trump may be criminally responsible for what happened that day, and if so, he should be charged. Trump should have been prosecuted during his presidency on charges of obstruction of justice in the Robert Mueller investigation and his coercion of political activity by senior State Department officials in the Ukraine scandal. He continued to commit crimes in office in part because he was never criminally charged even though there was strong evidence of previous crimes. The Justice Department for years has refused to prosecute a sitting president based on dubious constitutional arguments. That’s wrong. A president who shoots someone on Fifth Avenue, as Trump once boasted he could, or who commits any other crime should be prosecuted like anybody else. And his status as a former president is not reason enough not to launch an investigation now. Criminal investigations and prosecutions of high-ranking officials must be independent of political considerations. This point was made succinctly in a North Carolina Law Review article by Biden in 1987 defending the constitutionality of the independent counsel statute passed after Watergate. Criminal investigations and prosecutions of high-ranking officials must be independent of political considerations. “The history of this nation … demonstrates the need for an independent investigative arm in the federal government. There are certain extraordinary moments of crisis when the people’s faith in the integrity and independence of their elected officials is caused to waiver. These scandals tarnish the view that the Attorney General is an independent executive official who can be trusted to enforce the criminal law in the high offices of the government. To restore the utmost public confidence in the investigation of criminal wrongdoing by high-ranking government officials, the appointment of a special prosecutor then becomes necessary.” Biden was correct. During the final year of the Trump administration, we experienced what may have been one of the most “extraordinary moments of crisis” since the Civil War. Biden need only read his own law review article to figure out what to do about it. Whether a former president should be prosecuted for allegations including coercing political activity by federal employees or inciting insurrection should not be a political judgment call. A president who committed such crimes must be prosecuted if we do not want those crimes to be repeated by future presidents or our representative democracy imperiled. Garland should appoint a special counsel who can make decisions independent of political considerations, whether for or against Trump. That prosecutor should follow the facts and the law wherever they might lead, focused single-mindedly on that concept fundamental to representative democracy: No person is above the law.
Richard W. Painter
Richard W. Painter was the chief White House ethics lawyer from 2005 to 2007 under President George W. Bush. He is the S. Walter Richey Professor of Corporate Law at the University of Minnesota and is a graduate of Harvard College and Yale Law School. 
