As soon as former President Donald Trump left office, liberal activists started putting pressure on the Biden administration to investigate his alleged wrongdoings.
Biden’s Justice Department has refrained from launching a probe into Trump, despite some legal experts urging Attorney General Merrick Garland to investigate and prosecute the former president.
Trump, these legal experts claim, needs to be prosecuted for working to overturn the 2020 election and inciting an insurrection against the U.S. government.
According to CNN‘s chief legal analyst Jeffrey Toobin, however, "there is no basis" to investigate or prosecute Trump.
Toobin’s Argument
In his latest column, Toobin conceded that Trump’s behavior in the aftermath of the 2020 election was "disgraceful and wrong," but argued that there is simply no legal basis to prosecute him.
For instance, legal experts have urged Garland to prosecute Trump under the Insurrection Act, which allows prosecutors to go after anyone who "incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States."
According to Toobin, Trump cannot be prosecuted under the Insurrection Act, because, even as he told his supporters to protest outside the Capitol, he discouraged violence.
Election Fraud, Obstruction
Garland has also been urged to prosecute Trump for trying to commit election fraud, and for obstructing an official proceeding.
When it comes to election fraud, prosecutors would have a hard time proving that the offender — in this case Trump — "was aware that he or she was doing something unlawful," Toobin wrote.
Intent would also be an issue when it comes to prosecuting Trump for obstructing the certification of Electoral College votes, according to Toobin, because Trump had a First Amendment right to protest the count of the electoral vote.
Hatch Act, Conspiracy
The Hatch Act prohibits employees in the executive branch of the federal government from engaging in certain forms of political activity. This law cannot be used against Trump, Toobin noted, because presidents are explicitly exempt from it.
Several legal experts have argued that Trump could be prosecuted for conspiring against the U.S. According to Toobin, it would be incredibly difficult to prove Trump conspired against the U.S. or sought to "defraud" the U.S.
Besides, he noted, the Justice Department would be very reluctant to bring such charges.
‘Restraint Is The Better Course’
Conceding that Trump violated many norms when he was in office — including refusing to conceded defeat — Toobin concluded that "restraint is the better course" for Biden’s Justice Department.
"Investigations of presidential wrongdoing, by Congress and others, are wise and even necessary. But actual prosecutions are not, and Donald Trump should be the beneficiary of this tradition, even if he himself would surely not offer such grace to others."
As The New York Times reported, the New York attorney general’s office has been investigating Trump’s business dealings, but it remains unclear if charges will be brought against the former president.
