Donald Trump's plot to prosecute Joe Biden without probable cause is based on a lie and ignorance, as MSNBC analyst Joyce White Vance makes clear

MSNBC's Joyce White Vance

 

Donald Trump and his allies are plotting to prosecute President Joe Biden if Trump wins the November election, according to a report from Axios. After months of Congressional inquiries, no evidence of wrongdoing by Biden has surfaced, so it is unclear what would form the basis of a Trump-fueled prosecution. But this much appears to be clear: Trump apparently wants to prosecute Biden because he believes Biden had him prosecuted -- even though Trump has offered no evidence to support that claim. One prominent legal analyst has stated that Biden did not have Trump prosecuted and could not have done so. Those matters come down to grand jurors; more on that in a moment.

Also, the Axios report suggests Trump has no problem violating roughly 40 years of U.S. policy that holds the U.S. Department of Justice (DOJ) is to operate independently of the White House -- that presidents are not prosecutors, and they are to be excluded from decisions to charge or not charge suspected wrongdoers.

Trump might be determined to seek revenge against Biden, and other perceived political enemies -- as Trump repeatedly has said he intends to do in a possible second term. But for now, Trump only has managed to make himself look bad, adding to the substantial evidence we already had that he is wildly unfit to serve as president. In this instance, Trump's unfitness manifests itself in this indisputable fact -- he simply has no idea how government works, even after spending four years in the White House during a chaotic and dysfunctional administration that numerous experts have described as a failed presidency. 

The plot to wrongfully prosecute Biden, and perhaps members of his family, goes beyond Trump to include members of the Republican Party, as reporter Stephen Neukam writes under the headline "Scoop: Trump, GOP plot 2025 criminal probe of Bidens":

Republicans' impeachment probe of President Biden is unraveling because of a lack of evidence — but their work could become the basis for federal investigations and even prosecutions of the Biden family if Donald Trump wins re-election, Axios has learned.

Why it matters: Trump has vowed retribution against his enemies if he wins in November. House Republicans have struggled to show Biden has done anything illegal, but people close to Trump are still plotting to use the Justice Department against Biden and his family.

• A source close to the Trump campaign said that "everything you have seen from the Biden DOJ," in terms of the charges against Trump, "you can expect to see from the Trump DOJ."
• One Trump ally argued that there is precedent for a second Trump administration to investigate and prosecute the Bidens: the current federal charges against Trump.

Reality check: Those charges stem from allegations that Trump led a conspiracy to try to overturn the 2020 election, and that he illegally kept classified documents and then schemed to conceal that he'd taken them.

• Biden was found to have some classified documents from his vice presidency, but cooperated with authorities in returning them.
• The special counsel who investigated Biden's case, a former Trump appointee to the Justice Department, decided not to prosecute.

Driving the news: House Republicans have alleged that Biden should be impeached because he illicitly benefited from lucrative foreign deals arranged by his son Hunter.

• Despite their difficulty proving that, Trump has said he thinks Biden should be prosecuted anyway — because Trump is being prosecuted now.
• "By weaponizing the DOJ against his Political Opponent, ME, Joe has opened a giant Pandora's Box," Trump posted on Truth Social in January.

The items highlighted in blue above get to the heart of the matter -- Trump wants to prosecute Biden because he believes, contrary to evidence, that Biden is having him prosecuted. In other words, Trump is playing a tit-for-tat game. Prosecutions, however, are serious matters, and it helps to understand at least a few basics of criminal procedure. For example, a criminal investigation is not to begin until there is evidence of a crime.That seems simple enough, but Trump apparently cannot grasp it. The standard to meet is called probable cause. The link in the previous sentence notes that probable cause is found in the Fourth Amendment to the U.S. Constitution, in the Bill of Rights. But apparently Trump is ignorant when it comes to key provisions of our founding documents. Still, chunks of the American electorate, particularly the MAGA chunks, claim to support a presidential candidate who is clueless about a concept as simple as probable cause, which is front and center in the Bill of Rights. That tells me a lot of GOPers who claim to support Trump aren't taking the 2024 election seriously -- and themselves have no idea what Trump does, or does not, stand for. (Hint: Trump has made it clear he does not know, or intend to abide by, the U.S. Constitution. And some on the right seriously think he is fit to be president.)

Here is an example of how ignorance can get a president in trouble: Bringing a criminal case against Biden without probable cause could lead to all kinds of legal problems for Trump and his GOP henchmen. One problem could be a lawsuit against Trump & Co., brought by Joe Biden or his family members, for something called malicious prosecution. Here is a brief description of that tort from the Cornell University Legal information Institute:

Malicious prosecution is the filing of a lawsuit for an improper purpose, and without grounds or probable cause. The improper lawsuit may either be civil or criminal in nature. To remedy an act of malicious prosecution, an alleged victim files a malicious prosecution action. A malicious prosecution action is a civil tort claim for damages caused by malicious prosecution.. . . 

There is no cause of action for malicious prosecution under federal law but malicious prosecution in federal cases may still be tried under state tort claims. Malicious prosecution refers to previous improper civil or criminal proceedings in most jurisdictions.

Here is an article about the elements of malicious prosecution and a related tort called abuse of process. If Trump and his cohorts are found liable for one of these torts, or perhaps both, they could experience a severe lightening of their wallets. Anyone who has served as president, and been involved in numerous courtroom scuffles as Trump has, should know about these relatively simple legal concepts. But Trump seems incapable of grasping them. I'm hesitant to call Trump stupid, but he often appears to be lacking in knowledge and goes off half-cocked without thinking things true -- on matters that can be costly to him personally, of if he is president, to the country. In short, Trump thinks and acts recklessly, and that is a big reason he is unfit to be president.

Here is an example: Almost every issue raised in the Axios article grows from the idea that Joe Biden is having Trump prosecuted. In Trump's diseased, narcissistic brain, that has to be true because Trump cannot be responsible for anything that goes wrong. But this is a lie, one Trump apparently is convinced his MAGA followers are gullible enough to believe. But here is the truth, as stated by MSNBC legal analyst and former Alabama U.S. Attorney Joyce White Vance:

Joyce White Vance, former U.S. attorney for the Northern District of Alabama and current legal analyst for MSNBC, stated in a recent tweet: "Joe Biden didn't indict Trump. Prosecutors must go before a grand jury, made up of citizens, including Republicans & Democrats. These citizens hear evidence & vote on whether a defendant should be charged. Different grand juries have now done that with Trump 91 times."

So it all comes down to grand jurors. But Trump apparently realizes there are too many grand jurors to keep track of, and their deliberations generally are conducted in private, so Trump has to blame one guy, Biden.This is the kind of thinking that, in a president, could cause the U.S. to bomb Iran for a supposed wrong that Saudi Arabia committed. That is the kind of mishap that could spark a world war. But Trump displays that kind of rattled thinking on an almost daily basis.

How did it come to be U.S. policy that the DOJ will act independently of the White House, that the president will have no role in charging or non-charging decisions? Let's take a brief look at the history behind this policy. President Jimmy Carter, acting in the aftermath of Richard Nixon's Watergate scandal, played a key role. This is from a Legal Schnauzer post dated 9/19/23:

Since the late 1970s, during the post-Watergate era when our country still was reeling from Richard Nixon's scandal-riddled administration, U.S. policy has been that the Department of Justice (DOJ) will operate independently of the White House -- that the president will have no say in the DOJ's charging or non-charging decisions. The Jimmy Carter administration produced the first memorandum spelling out this policy -- and it has been followed by almost every president (of both political parties). From Ronald Reagan to Barack Obama, every president has signed off on the idea that the White House should not influence DOJ decision-making. The only exception might be Donald Trump; it is unclear if the Trump White House followed the law on DOJ independence during his first term -- and he clearly has no intention of following the law during a second term.

Merrick Garland, current U.S. attorney general, provides more background from the most recent memorandum on the subject. This comes from a 2017 report at protectdemocracy.org:

The promise that every American will be treated equally under the law and that none is above the law is a bedrock principle of American democracy. The freedom from political influence — real or perceived — on law enforcement underpins all of our other freedoms. By contrast, political influence or interference in law enforcement has been a clear hallmark distinguishing authoritarian regimes from true democracies around the globe.¹

For decades, to prevent even the appearance of political meddling in federal law enforcement, Republican and Democratic administrations alike have had written policies governing White House contacts with agencies and offices within the executive branch that have investigatory and enforcement responsibilities. To ensure the impartial application of the laws, these policies have extended to White House contacts with any executive branch agency or office regarding investigations, enforcement actions, regulatory decisions, grants and contracts involving specific parties.

To date, the Trump Administration has not articulated publicly a White House policy on agency contacts. Further, multiple reported contacts between senior political staff at the White House and enforcement officers at the Department of Justice (DOJ) appear to have violated 40 years of accepted, bipartisan policy. In light of the questions that its actions have raised, and in order to demonstrate its commitment to upholding the rule of law, the Trump White House must release and abide by an agency contacts policy that is consistent with accepted, bipartisan norms.

In recent weeks, a number of reports have raised questions regarding whether the White House has in place and is abiding by an agency-contacts policy like ones that have governed White House agency contacts for the past 40 years in both Democratic and Republican administrations. This past weekend, The New York Times reported that White House Counsel Donald McGahn “was working to secure access to what Mr. McGahn believed to be an order issued by the Foreign Intelligence Surveillance Court authorizing some form of surveillance related to Mr. Trump and his associates.” (The White House later attempted to walk back claims of such an effort). Last month, multiple publications reported that the White House asked the FBI to refute reports that Trump campaign advisors had contacts with Russia during the presidential campaign. A week prior to that, the New York Daily News reported that White House senior Adviser Stephen Miller, who is not a lawyer, called the home of Robert Capers, the U.S. Attorney for the Eastern District of New York, to dictate how he should defend the Administration’s travel ban.

There is a long-standing and bipartisan belief that the laws of the United States should be administered and enforced in an impartial manner and, accordingly, that there should not be an appearance that politics plays any part in the Department of Justice’s investigative and enforcement operations. This is because the effectiveness of the Department of Justice rests on the public’s confidence — and the reality — that DOJ is above ideology and partisanship in its enforcement of the law.

The need for the Department of Justice to be insulated from the reality and the appearance of politics is reinforced in federal law. The Hatch Act places restrictions on the political participation of government employees in certain agencies where it is particularly important that there is no appearance of politicization, like the military and intelligence agencies. These restrictions apply to career and political appointees in the Department of Justice and FBI.

Stemming from this basic principle that the investigative and prosecutorial powers of the DOJ should be free of partisan influence, it has been consistent policy for 40 years to limit communications between the White House and the DOJ, including the FBI.

Here is a bit more history from a Legal Schnauzer post dated 7/20/17, drawing on a February 2017 article at lawfareblog.com: 

After Watergate, Jimmy Carter campaigned on the promise to establish "as far as constitutionally possible, an independent Department of Justice,” and in 1978 his attorney general, Griffin Bell, sought to make good on that pledge by instituting procedures to insulate the Justice Department from political pressures. But what became the customary rules governing interaction between the White House and Justice were relaxed most recently under the George W. Bush administration, in a set of episodes the administration came to regret. As recounted by Politico in January, Bush's first attorney general, John Ashcroft, expanded the number of White House officials permitted to contact the Justice Department on non-national security matters from four to 417; his second attorney general, Alberto Gonzalez, further increased the number to 895 (according to findings by Senate Judiciary Committee member Sheldon Whitehouse, a former U.S. attorney). These changes ended in scandal: among other things, under Gonzalez, seven U.S. attorney generals were abruptly fired in 2006 for political reasons that, according to a subsequent report by the Justice Department Inspector General, "raised doubts about the integrity of Department prosecution decisions." Michael Mukasey reinstituted more traditional guidelines in 2007, and Eric Holder replaced them with his own substantively similar variant in 2009.

The heart of the [Holder] memo is a set of prescriptions limiting the Justice Department’s communications with the White House and Congress regarding pending or potential criminal or civil investigations or cases. The Department will advise the President on such investigations or cases “when—but only when—it is important for the performance of the President's duties and appropriate from a law enforcement perspective.”

The Axios article indicates Trump is not the only Republican scheming to "get" Biden because of "offenses" that do not appear to involve probable cause. Writes Stephen Neukam:

• House Oversight Committee chair James Comer (R-Ky.) said in a fundraising email last month that "when President Trump returns to the White House, it's critical the new leadership at the DOJ have everything they need to prosecute the Biden Crime Family and deliver swift justice."
• Comer also said on Fox News recently that if Attorney General Merrick Garland's Justice Department won't accept criminal referrals from House Republicans, "then maybe a Donald Trump Department of Justice will."

Zoom in: House Republicans' investigation is unlikely to end in impeachment articles this year, but the GOP has used it to sling mud at the president and his family in the run-up to the Nov. 5 election.

• Mike Davis, former chief counsel for nominations to then-Senate Judiciary chair Chuck Grassley (R-Iowa) — whom Trump has suggested as a possible interim attorney general — claims the Bidens participated in "illegal foreign corruption."
• "The Biden Justice Department will not do anything about it, so the Trump 47 Justice Department should," Davis said. Did Davis provide any specifics? No.
  

State of play: A spokesperson for the House Oversight Committee told Axios that "impeachment is 100% still on the table."

• The spokesperson said the investigation is ongoing and that a final report with recommendations will be released at the end of the probe.
• That report is expected to include criminal referrals.

Neukam's reporting suggests a GOP conspiracy could be in play, and that conjures up even more memories of Richard Nixon. Neukam turns to a voice of sanity in U.S. Rep. Jamie Raskin (D-MD):

The other side: Rep. Jamie Raskin (D-Md.), the top Democrat on House Oversight, told Axios that Republicans are eyeing this course of action only because their impeachment inquiry has not turned up any crimes committed by the president.

• "Now, in saying that they are going to enable Donald Trump's criminal vengeance campaign, they are taking this from a farce to tragedy," Raskin said.