To avoid Donald Trump prosecution crisis, Joe Biden should step aside | Law expert

Richard Bales is a law professor at Ohio Northern University in Ada.

Recent reports from the White House indicate President Joe Biden is planning to run for a second term.

For the good of the country, he should announce soon that he will not run.

The Final Report of the Jan. 6 Select Committee demonstrates that American democracy has never been so close to failure as it was two years ago.

Outgoing President Donald Trump rallied supporters with false claims of a stolen election, encouraged them to converge on Washington, failed to act as they stormed the Capitol, and pressured his own vice president to overturn the election results.

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In short, he attempted to instigate an insurrection that would illegitimately re-install him as president, watched as the insurrection unfolded, and only stepped back when it was clear the insurrection would fail.

The committee has appropriately referred Trump to the Department of Justice for assisting or aiding an insurrection. It is now up to President Biden and Attorney General Merrick Garland to decide what to do next.

Nothing will define Biden’s presidency more than the way he responds to the January 6 committee’s referral.

The Jan. 6 insurrection failed, but the next one may not.

The events of Jan. 6 provide a roadmap to the next president tempted to hold onto power notwithstanding term limits or an election loss.

Choose a vice president and attorney general unconstrained by constitutional niceties. Pack the judiciary with supplicants, preferably over eight years instead of four. Ensure that elections in swing states are run by people willing to “find” enough votes to ensure your victory.

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If Biden and Garland believe the Jan. 6 Committee Report is accurate, they have a duty to bring appropriate charges against Trump.

Not doing so would be contrary to the principle that no one – not even the president – is above the law. Worse, not bringing charges would set a terrible precedent, effectively telling the next would-be election denier that attempts to overturn constitutional order have no consequences.

But Biden has a conflict of interest.

Given Trump’s recent political stumbles and Florida Gov. Ron DeSantis' electoral victory and war chest, it’s likely to Biden’s political advantage not to prosecute Trump. Democrats dream of running against Trump in 2024.

Even if Trump doesn’t get the nomination, Biden would benefit tremendously from a bruising primary fight or discouraged Trump supporters staying home on election day. Biden thus has every incentive to forgo prosecution so Trump can run.

If Biden does decide to prosecute, that decision will be seen by Trump and his followers as a vendetta against a political opponent.

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It risks setting a different but no less pernicious precedent of prosecuting political rivals (which in turn increases the incentive of a sitting president to refuse to stand down after an election loss for fear of political prosecution).

Even if the prosecution of Trump results in a conviction, the legitimacy of that conviction will be forever tainted by the argument that the prosecution was politically motivated.

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Biden will no doubt attempt to make it appear as if politics has nothing to do with the decision to prosecute. He might, for example, say publicly that the decision is entirely Garland’s. But there’s no way around the fact that the decision to prosecute will be made (constitutionally, it must be made) by President Biden or his appointee.

Whether to prosecute a former president is an extraordinarily important decision. A decision to prosecute Trump will encourage future prosecutions of political opponents to silence or sideline them.

Declining to prosecute implies presidential immunity and invites future insurrection. The decision should be made in a context devoid of any real or perceived conflict of interest or political motivation.

The only way to avoid this crisis is for Biden to announce that he will not run in 2024. That takes personal politics off the table.

A founding principle of American democracy is the primacy of institutions over individual office holders. It’s why our Founders rejected monarchy in favor of a government based on a well-defined separation of powers.

A decision by Biden to step aside in 2026 would demonstrate his fidelity to this principle, much like George Washington’s decision not to seek a third term. A successful resolution of Trump’s threat to the peaceful transition of power would be President Biden’s greatest legacy.

Richard Bales is a law professor at Ohio Northern University in Ada.

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This article originally appeared on The Columbus Dispatch: With Donald Trump's prosecution possible, should Joe Biden run for president?