GAZETTE: Does the level of communication and action between the Trump White House and Justice Department about the election constitute a conspiracy?
TRIBE: Yes, I think we can say that the elements of a conspiracy were present. The fact that it is between the White House and the Justice Department doesn’t prevent it from being part of a conspiracy. There can be a conspiracy within the White House alone. The fact that the coup did not succeed doesn’t exonerate people because the word “attempt” is part of most of these statutes. An attempt to coerce or pressure others into upsetting the results of a legitimate election is the very essence of a conspiracy to overthrow the government from within.
GAZETTE: What could come of all of this?
TRIBE: I do think this is likely to put more pressure on the Department of Justice to investigate and perhaps prosecute under some of these federal criminal statutes. I think it will also increase the likelihood that the DA of Fulton County, Georgia, will proceed to prosecute state election crimes. But it will not affect anything about Manhattan DA Cyrus Vance or the financial prosecutions in the Southern District of New York or elsewhere.
I would imagine that when the Senate Judiciary Committee issues its final report, it might make a criminal referral to the Justice Department about whether anyone should be prosecuted. Such a referral is neither necessary nor sufficient to have a prosecution undertaken. The Justice Department can’t be forced by Congress to bring an indictment. But these criminal referrals do increase the odds of a prosecution. Even without such a criminal referral, I think it’s incumbent on the Justice Department to take this information very seriously. The reason they wouldn’t or might not isn’t that there’s some halo of immunity that surrounds former presidents and former high officials or members of Congress, although the Speech and Debate clause gives some immunity to members of Congress. The reason is simply that there would be an understandable if, perhaps, exaggerated, fear that it would look vindictive, retributive, and partisan to go after a former president.
GAZETTE: The report details numerous breaches of existing policies, norms, and even written directives from White House counsel regarding communication between the White House and Justice Department, as well as the department’s role in elections by top officials at both entities. Within the separation-of-powers limits, is there a way to ensure that these rules have more teeth?
TRIBE: All of these provisions and norms are, at least potentially, subject to being codified in law. Some are a little too vague and nebulous to lead to convincing codification. Rep. Adam Schiff has a whole raft of proposed legislative measures dealing with the abuse of the pardon power and dealing with failure to comply with subpoenas and dealing with the speed with which courts rule on subpoena matters and with other gaps in the guardrails exposed by Trump’s four years in office.
I think we’re getting beyond the reach of what law can achieve. The framers recognized that decent character couldn’t be taken for granted in those who seek high office. But without it, no body of rules, no system of enforcement can ever be entirely sufficient. It’s clear that if we elect people to positions of power, whether in the executive branch or in Congress, who are unprincipled, who care more about their own status and position than about treating their oath to the Constitution seriously and serving the interests of the country, there’s little we can do to prevent them, within the boundaries of law, from causing horrible harm to the republic.
The Daily Gazette
Sign up for daily emails to get the latest Harvard news.