Biden will have one tool, however, that allows him to pursue justice while also ensuring that the process doesn’t appear to be tainted by politics. That tool is the special counsel—a prosecutor appointed not by Biden, but by his attorney general, who has a measure of independence from the administration. The special counsel should be a career prosecutor who has no connection to Biden or his team, and the Attorney General should publicly state in advance that he or she does not intend to place any restrictions on the special counsel and will follow his or her recommendation.
It is, of course, impossible to make a decision regarding the prosecution of Trump in a manner that won’t be criticized by Trump and his allies, short of pardoning him or giving him a pass altogether. But appointing a special counsel takes the power away from Biden appointees and puts it in the hands of someone who is non-partisan and is not tied to the administration. That is the best move for the country, and the best realistic outcome Republicans could expect.
Regardless of the decisions made by the special counsel, Democrats will learn that even in a Biden administration, there are limits to what the criminal justice system can or should do. Some of the most objectionable actions taken by the Trump administration, such as the separation of children from their parents, don’t obviously fit into the four corners of a federal criminal statute.
That doesn’t mean that the Trump administration’s abuses should not be examined closely. The public deserves to know what their government did in their name and with their tax dollars, and Biden should consider the creation of a commission to conduct a non-criminal investigation to consider matters that the Special Counsel declines to prosecute, and publish a report that details what happened and makes recommendations for reform.
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