Why isn't Trump in jail? Former George W. Bush lawyer says Biden's DOJ is protecting him

Onetime White House lawyer Richard Painter: Federal prosecutors love presidential power more than actual justice

By Chauncey DeVega

Senior Writer

Published June 25, 2021 5:40AM (EDT)

Donald Trump, Merrick Garland and Joe Biden  (Photo illustration by Salon/Getty Images)
Donald Trump, Merrick Garland and Joe Biden (Photo illustration by Salon/Getty Images)

Donald Trump's regime turned the United States government, and in some sense the entire country, into a crime scene. Given that, why isn't Trump in jail? Why are the collaborators and co-conspirators in his multitude of apparent crimes not in jail with him?

These are questions I have asked myself many times during the Age of Trump and these months after his coup attempt and the Capitol attack, especially as more "revelations" have emerged about the vast scale of Trump's crimes against democracy, the rule of law and the American people.

Many other Americans have the same questions about justice and consequences for Donald Trump and members of his regime, which at this point includes nearly the entire Republican Party.

There are various plausible answers to these questions. Of course there are actions that may be immoral, wrong or evil but not technically illegal. Perfidy, lies, cruelty and bigotry are in most cases not offenses that can successfully be prosecuted in court.  

Joe Biden's administration and the senior leadership of the Democratic Party appear to feel that a proper investigation into the Trump regime, for example through convening a truth commission or some similar independent body, would be a "distraction" from their policy agenda.

Perhaps Biden and other Democratic leaders feel that the scale of the Trump regime's obvious criminality is so great that to reveal the truth in full would cause an even greater crisis of legitimacy in the country's governing institutions. In essence, the Democrats may be trying to "protect" the American people from the truth.

There is also the raw and ugly fact that rich white men in America are rarely held accountable for their actions, and that goes double for Republicans and conservatives. If Trump were black or brown or a Democrat, he and his cabal would in all likelihood have been convicted and sent to prison months or years ago.

In an effort to understand why Trump and his regime are not being prosecuted for their many apparent crimes — and may never be — I recently spoke with Richard Painter. He was White House chief ethics counsel under President George W. Bush and is a frequent guest on MSNBC, CNN and other news networks. His most recent book, co-authored with Peter Golenbock, is "American Nero: The History of the Destruction of the Rule of Law, and Why Trump is the Worst Offender."

In this conversation, Painter explains why there appears to be little if any interest from the Department of Justice in prosecuting Donald Trump. This is partly because its leadership under Attorney General Merrick Garland is afraid of setting such a precedent, but more importantly, the DOJ is now institutionally committed to the idea that there are few limits on presidential power.

Painter also discusses the absurdity of the Department of Justice under Biden choosing to defend Donald Trump in court against the many lawsuits that are being brought against him, including those concerning his role in inciting the Jan. 6 Capitol attack and larger coup attempt. 

Painter also warns that this refusal to investigate and prosecute the Trump regime, which will only empower future presidents to commit crimes without consequence, could lead to the collapse of American democracy and its descent into authoritarian rule — not altogether different from the fate of Ancient Rome.

This conversation has been edited, as usual, for clarity and length.

Given all their public crimes and other misdeeds, more of which are emerging every day, why are Donald Trump and his inner circle not in jail?

I am not sure that prosecutors want to go after Donald Trump and his cohorts. We will have to see what happens in New York. But at this point in time, it has been pretty obvious that the U.S. Department of Justice, if anything, is going to be defending Trump in a number of civil lawsuits. These include the Lafayette Park case, and the Freedom of Information Act requests from CREW [Citizens for Responsibility and Ethics in Washington] over the DOJ memo about whether they could indict Donald Trump back in 2019 [at the time of the Mueller report].

The DOJ will not disclose that memo. CREW has sued, and guess what? The Biden Department of Justice is defending the executive privilege of the Trump administration with respect to that memo. They do not want to release it. Biden's Department of Justice also restrained former White House counsel Don McGahn about what he could say when testifying before Congress, even though he had been subpoenaed by the House of Representatives.

The Department of Justice once again is asserting attorney-client privilege and executive privilege over some of the communications between Trump and McGahn. There is now a rumor that the Department of Justice might actually defend Donald Trump with respect to his conduct on Jan. 6 and during the insurrection, in the private litigation against him.

I believe that the Department of Justice should indict former President Trump for obstruction of justice, as laid out in the second part of the Mueller report. He should also perhaps be indicted for inciting the insurrection and riot on Jan. 6, among other criminal offenses. But the Department of Justice is going in the opposite direction. Biden's DOJ wants to defend Donald Trump and the idea of presidential power and presidential prerogatives. I think that's most unfortunate. There is a great deal of timidity and apprehension about going after a former president.

How do DOJ lawyers and other legal professionals and scholars reconcile protecting Donald Trump when he was and is a dire threat to the country's democratic institutions? There is this obsession with "institutions," but those institutions will be further imperiled if Trump and members of his cabal are not held responsible for their obvious crimes. In essence, not to punish them is to encourage another coup.

That is the danger. I believe that the lawyers and legal scholars can be separated into two distinct groups. There are those who are worried about too much presidential power. I am among that group. I believe that a sitting president should be indicted for any crimes he commits in office. A former president should certainly be indicted if he committed crimes while in office. The notion of executive privilege — keeping communications confidential from Congress and from prosecutors — is way overblown. And the idea that the president could somehow fire the FBI director, or threaten to fire Bob Mueller, is clearly obstruction of justice. The president of the United States is not above the law.

There is another view of these questions. Sometimes the phrase "unitary executive theory" has been used to describe this belief in heightened presidential power. There are both liberals and conservatives in that camp.

There are people who believe, as [former] Attorney General Barr does, that a president can fire anybody at will, because he is in charge of the executive branch. For example, the president can just fire the FBI director in the middle of an investigation if he wants to — that's what Barr has said.

There are supposed liberals who believe pretty much the same thing. Cass Sunstein of Harvard Law School is among that group. He has also said that you cannot indict a sitting president for a criminal offense he commits while in office. Sunstein is working for Joe Biden right now.

Many people in the Justice Department — and who filter in and out of the Justice Department in different administrations — are committed to this latter view of presidential power. As such, the unitary executive theory tends to be the predominant view in the Department of Justice. I think it's wrongheaded. It's not consistent with the United States Constitution to have that much power and privilege, in essence legal immunity, in the hands of the president.

How would they respond to the basic observation that the president of the United States is not a king or an emperor? Their commitment to the unitary executive theory basically means, in practice, that a president, especially a Republican president, can overthrow the government if they do not like the result of an election.

That is where we could end up as a country, where the president can do anything he wants while in office. If the president cannot be indicted and has broad power to hire and fire anybody he wants without criminal accountability, and he can use the military for whatever he wants, then he will commit crimes and use his official powers to stay in office. That is a pattern in countries that become dictatorships. It happened with the Roman Empire almost exactly that same way, with power being concentrated in the hands of a single individual.

What if Biden had exercised bold leadership by immediately signaling to the Department of Justice that they should aggressively pursue Donald Trump, his inner circle and others who have committed crimes?  

If I were Joe Biden, I would not have done that. Instead, I would have said, "We're going to bring in an independent counsel who will make this decision. It's not a political decision." If Donald Trump committed crimes, he should be prosecuted. That should not be a political decision. I do not believe that Joe Biden or any appointee of Joe Biden should be making that decision.

Again, if someone commits a crime they should be prosecuted. They should go to jail if they committed a felony. The second part of the Mueller report shows that there was obstruction of justice by Trump and his inner circle. Part two of the Mueller report is an outline of an indictment. But the Department of Justice does not want to do it.

If Donald Trump committed crimes, he should be indicted. It is pretty clear to me that is in fact the case.

What are these "institutionalists" afraid of when it comes to prosecuting Trump, his coup plotters and other members of his regime?

Part of it is that the DOJ's lawyers have been defending presidential prerogative, presidential privilege, and the like across many administrations. They have been doing this in both Democratic and Republican administrations. These people are political appointees of the president, which explains the ideology at work. These political appointees may have different views on political issues and different political affiliations. But many people in the DOJ have a view that they are there to protect presidential privilege and power and immunity. It is very bad for our democracy. We are not getting the pushback from Congress that we need right now. It is a very frustrating situation.

Why didn't more people in the federal government who were a witness to these crimes, and Trump's assaults on democracy more generally, stand up and speak out? We needed many more whistleblowers and other patriots.

The real problem is the people in Congress who supported Donald Trump and the extremists and the conspiracy theorists. It is very hard to root out the people who are from congressional districts that are extremely conservative and consistently vote Republican.

I hope the Republican Party will clean out the worst people, like Marjorie Taylor Greene and others who spread conspiracy theories. I do not know if it's going to happen, but we need to hold the Republican Party accountable. I was a Republican for 30 years. They still have some good people. But it's very, very hard now, because Republicans either endorse Trumpism or they are scared and therefore won't speak up against it. We need some courage in this country, and we are not getting it right now.

What were your thoughts as you watched those events on Jan. 6? How do you assess the investigation so far?

A bunch of Trump followers invaded the Capitol. Those people were being held to account, such as the Proud Boys. But at this point, the only people being indicted are the people who were actually there. I have not seen a lot of activity going to the next level and finding out who the political operatives were, whether from the Trump campaign or other people behind the scenes, who were orchestrating the events of Jan. 6.

This was a conspiracy. It's pretty obvious that people were planning some of this in advance. Donald Trump inspired them to go down there to the Capitol and do what they did. Trump did not say, "Go kill a police officer," but it was pretty clear he was instigating a riot, an insurrection, with the false rumors about election fraud and the rest of it. I want to see investigation from the DOJ go to the next step. But thus far, we are not seeing that.

Do you think a signal was sent by the Biden administration to not prosecute the ringleaders for reasons of "stability" and protecting the "institutions"?

There are a number of signals at play here. Primarily that "we're going to look forward." The Obama-Biden team sent that message with respect to the torture lawyers in the Department of Justice.

And guess what? They just came back in the Trump years, pushing for more executive power. This is not a good situation. We need to have a clear message that people who violate the law, when they hold positions of public trust, are going to be prosecuted and the lawyers involved will be disbarred.

What happens next if such presidential power is not curtailed?

If the Democrats want to put a stop to it, they need to rein in executive power and make it clear that even with a Democrat in the White House, we're not going to put up with it. We're not going to defend presidential privilege and confidential communications of criminal conduct. We're not going to do that. We do not need to have an all-powerful president to live in a democracy. Congress passes the laws, the president signs the laws. But we don't need to have a president who can do anything he wants, whether he's a Democrat or a Republican. That needs to be the overriding principle here.

If the Department of Justice actually ends up defending Trump against civil and other charges for his role in the coup and the Capitol attack, what does that do to the DOJ's credibility? What message does it send to the public about the presidency?

It creates the impression that presidents are just interested in power. And that means that the concept of presidential power and presidential prerogative and privilege is what really matters to the Department of Justice. By implication, it means that is what's important to Joe Biden. That he's willing to defend everything Donald Trump did so that he in turn can do what he wants. That's the impression it's going to give. Now, I do not see Joe Biden abusing his power. But there is no reason for the DOJ to defend Donald Trump.

What advice would you give Joe Biden about Trump's crimes and this torrent of new information about his extreme wrongdoing while in office?

I'd say, Mr. President, you need to have the attorney general appoint an independent prosecutor. Or maybe it's going to take two or three independent prosecutors because of the amount of criminality here. Have those independent prosecutors make the decision about whether Donald Trump ought to be indicted or not. I'd say, second, the Justice Department should stop defending Donald Trump in any and all civil litigation, or defending his presidential privilege. His communications with his White House counsel should be revealed to the United States Congress. CREW should get a copy of that memo the DOJ wrote in 2019 about whether Donald Trump could be indicted. There needs to be complete transparency, no more secrets. That's the bottom line.

By Chauncey DeVega

Chauncey DeVega is a senior politics writer for Salon. His essays can also be found at He also hosts a weekly podcast, The Chauncey DeVega Show. Chauncey can be followed on Twitter and Facebook.

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