No U.S. President has ever been indicted. But on the afternoon of Jan. 20, 2021, Donald Trump will no longer be president. And federal and state prosecutors will then be free to pursue criminal charges against him. They have the power, they have the evidence, and Trump will no longer have de facto immunity from prosecution.

There has been considerable discussion over whether Trump should be criminally charged after he leaves office. Is the evidence of guilt sufficient for conviction? Would prosecuting Trump advance a substantial federal or state interest? Would prosecuting Trump inflict greater damage to the country’s already fragile democracy? President-elect Biden has stated that prosecuting Trump “may not be very good for democracy,” but he also stated that he will not interfere with a decision to prosecute made by the Justice Department. By contrast, Vice-president-elect Kamala Harris has said that the Department of Justice may have no choice but to pursue criminal charges against Trump, particularly the charges of obstruction of justice described in the Mueller Report.

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