Should Democrats investigate and prosecute Republican wrongdoing? Arguments Pro and Con

Democrats will have a majority in both the House and the Senate in the next session of Congress starting in January of 2027.

How much time and resources should the Congressional Democrats devote towards investigating, exposing, and prosecuting GOP wrongdoing?

Likewise, if a Democrat wins the White House in 2028, should the Justice Department pursue criminal indictments of Trump associates?  And should state attorneys general pursue prosecutions?

Arguments in favor of investigations and prosecutions

• Investigations and prosecutions will expose wrongdoing to the court of public opinion.
• They will deter future wrongdoing.
• Arguably, President Obama’s 2009 decision to “look forward,” rather than to prosecute wrongdoing in the Bush/Cheney administration, helped the GOP to roar back to life in 2010 and again in 2016, 2022, and 2024. Holding wrongdoing accountable deters future wrongdoing.
• Likewise, Merrick Garland’s failure to prosecute Trump, and the failure of the two impeachment efforts during Trump’s first term in office, allowed Trump and his movement to revive.  (More on this below.)
• Investigations and prosecutions lay the groundwork for possible impeachment for blatant wrongdoing (e.g., Pete Hegseth).
• Where impeachment is impossible or unfeasible, Democrats can pursue later criminal or civil prosecution (whether state or federal).
• President Trump will still have the power of the veto, and Senate Republicans will be able to use the filibuster to block Democratic bills. So, enacting positive changes may be difficult until 2029.  The threat of prosecution and exposure may be effective at forcing Republicans to compromise.
• The Democrats are perceived as weak pushovers. Republicans fight dirty. Democrats need to change that perception by hitting back hard.
• The victims of criminality (e.g., the American taxpayers and people wrongly imprisoned and deported) deserve justice and compensation where warranted.
• While overly politicized, aggressive prosecutions are harmful to democracy, allowing impunity also is risky, as it undermines the rule of law. Democrats should limit investigations and persecutions to clear cases of wrongdoing.
• Even if Trump or, say, Vance pardons someone, that pardon cannot erase state criminal liability. Prosecution by state attorneys general is still a possibility.

Arguments against investigations and prosecutions

• Investigations and prosecutions risk turning the country into what people believe to be a banana republic, in which the incoming administration routinely prosecutes or even imprisons the outgoing administration.
• They might be a distraction from enacting much-needed positive change that actually helps Americans.
• They might be regarded as petty or vengeful.
• When Republicans pursued impeachment against Bill Clinton for lying about his relationship with Monica Lewinsky, the Republicans lost in the next election, and the general consensus was that the voters thought the Republicans had overreached.  Later, when there was a push to impeach George W. Bush, Democratic leaders pushed back, again fearing voter retribution.
• When Congress pursues impeachment or other investigations, they often grant immunity to people who testify. Such immunity can preclude later prosecution by the courts.
• The Supreme Court’s 2024 Trump v. United States decision established absolute immunity for a president’s core constitutional powers, at least presumptive immunity for other official acts, and no immunity for unofficial acts. Any proposal for prosecution after 2029 must reckon with those distinctions rather than assume that leaving office removes them. (However, the Supreme Court ruling applies only to Trump, not to others in his orbit, and the ruling does not negate the value of exposure of wrongdoing to the court of public opinion.)

Discussion

The book Unchecked: The Untold Story Behind Congress’s Botched Impeachments of Donald Trump exposes the failures of the Democratic Congress to devote sufficient time and resources into the impeachment investigations. Nancy Pelosi, in particular, is blamed for: dragging her feet about agreeing to start impeachment investigations; limiting the time spent on investigations; limiting the articles of impeachment that would be considered; and failing to enforce subpoenas when the Trump administration didn’t provide documents.  The book says that Pelosi wanted to protect vulnerable swing state Democrats and that she thought, like Obama, that the American people were more interested in positive change.

The Dems can walk and chew gum at the same time: devote some time to high profile investigations and prosecutions of clear wrongdoing, while also trying to pass positive legislation.

If you have suggestions about further arguments pro and con, feel free to email the author, Don Smith, at ThinkerFeeler@gmail.com .