By Professor John Woo & Charles “Cully” Stimson | AMAC Outside Contributors
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President Trump’s enemies have been so busy celebrating his conviction in New York last week that they don’t seem to realize what a double-edged sword they’ve unsheathed. Regardless of Trump’s fate on appeal, one or more of the 2,300 elected district attorneys across the country may now feel liberated. They can now pursue former presidents, including President Biden, regardless of the merits of the case, purely for political gain or retribution.
We are not suggesting that any county prosecutor must retaliate against Biden simply because Manhattan DA Alvin Bragg and Fulton County DA Fani Willis prosecuted Donald Trump—though it is hard to see what else would stop rogue progressive prosecutors from continuing to charge Republicans presidents. Rather, we are suggesting that the likelihood of other county prosecutors charging former presidents has gone from zero to some undetermined percentage.
You can thank Bragg and Willis for that. The obvious place for red county DAs to start would be the web of Biden family influence-peddling.
A prosecutor could open an investigation into whether Hunter, James, and ultimately Joe Biden were taking money from foreign governments and companies to influence U.S. government decisions. A DA would already have the paper trail set out by congressional investigators and IRS whistleblowers.
Did the Bidens either defraud the foreign payers, or did they take the money in exchange for protecting them? Did any of the Bidens steer contributions to entities that later paid them salaries and expenses, a la the Clinton Foundation? The legal charges would be far more plausible than the gossamer-thin concoction dreamt up by Bragg.
Perhaps a creative county prosecutor in Texas could conceivably charge Joe Biden with any number of crimes for his immigration policies on the border, which have devastated Texas, its residents, and businesses.
That prosecutor could start with manslaughter or criminally negligent homicide. There is no statute of limitations for manslaughter in Texas, whereas there is a three-year limitation on criminally negligent homicide.
The district attorney could argue that Biden’s open-border policies, including flying in known or suspected convicted criminals, resulted in foreseeable deaths.
To be convicted of manslaughter under Texas law, the person must “recklessly cause the death of an individual.” A person acts recklessly with respect to circumstances surrounding his conduct when he is “aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.”
As proof, the prosecutor could call, in addition to the decedent’s family members, former Border Patrol chiefs who would testify as expert witnesses that they warned President Biden or Homeland Security Secretary Alejandro Mayorkas against their open-border policies.
Alternatively, the prosecutor could proceed on a theory of criminal negligence, which, under Texas law, only requires the prosecutor prove that Biden was aware of “a substantial and unjustifiable risk that the circumstances exist or the result will occur.”
The prosecutor’s theme could be, “Biden lied, and people died.”
A creative and ambitious prosecutor could charge Biden with unlawful or unwanted touching, assault, or some version of sexual assault for any number of claims by women or children who Biden groped over the years. In 2020, former Biden Senate staffer Tara Reade accused Biden of sexual assault in a Capitol Hill office in 1993.
Given the fact that Biden was forced to apologize for unwanted touching over the years in this video, and said that “the boundaries of protecting personal space have been reset, and I get it,” the only things that might prevent a prosecutor from charging Biden with such crimes is the unwillingness of victims to testify and/or the tolling of the statute of limitations. At least seven states have no statute of limitations for felony sex crimes.
These are just a few examples of how the criminal law of a state could be twisted by an unscrupulous district attorney to go after a former president now that Bragg has sailed into uncharted and dangerous waters.
Trump’s foes can cheer all they want, but the short-term political gain Bragg and those who support him may reap from this flawed and unorthodox prosecution will potentially be dwarfed by the long-term damage to stability of the Office of the President.
Professor John Yoo is a Emanuel S. Heller Professor of Law, University of California at Berkeley.
Charles “Cully” Stimson is a Senior Legal Fellow and Deputy Director at The Meese Center
