Presidential candidate Kamala Harris said the Justice Department "would have no choice" but to prosecute President Donald Trump if he were to be defeated in 2020. | Justin Sullivan/Getty Images 2020 elections Dems taunt Trump with threats of prison time A role reversal is starting to play out, alarming law enforcement veterans who see the Democrats mirroring Trump's calls to punish his opponents.

Get ready for a potential new 2020 presidential campaign chant: “Lock him up.”

A role reversal is starting to play out, with some Democrats openly taunting President Donald Trump with threats he’ll be the one spending time behind bars after he’s out of office. And some White House hopefuls have started weighing in, teeing off on the norm-busting Trump presidency and arguing that no person should be above prosecution if the evidence is there.


Yet in the process, they’re alarming law enforcement veterans across the political spectrum who see the Democrats engaging in their own version of the politicization of the country’s criminal justice system that Trump was accused of when he fanned chants of “lock her up” during his own 2016 campaign against Hillary Clinton.

“Presidents aren’t supposed to suggest there be investigations or prosecutions of particular people, let alone their political rivals,” said Matt Axelrod, a former senior Obama-era Justice Department official. “President Trump has flagrantly and repeatedly violated that norm, but that doesn’t mean the norm has been obliterated.”

“It’s so un-American to prosecute your political enemies,” added Alan Dershowitz, the retired Harvard law professor, civil libertarian and occasional cable television Trump defender. “That’s what they do in banana republics.”

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The issue isn’t going away, though. If Trump loses next November, he will return to private life, opening him up to criminal charges he was immune from as president. And former special counsel Robert Mueller has left a potential rap sheet in the form of a report with evidence that numerous legal experts argue constitutes criminal obstruction of justice.

So Democrats running for president are sure to be pressed on the loaded question: Will Trump face prosecution if you win?

Several candidates have already taken the plunge. In an NPR interview last week, California Sen. Kamala Harris said the Justice Department in her administration “would have no choice, and that they should” prosecute Trump if he no longer enjoys immunity from criminal indictment. Pete Buttigieg, the mayor of South Bend, Ind., also offered his thoughts last week, telling The Atlantic, “To the extent that there’s an obstruction case, then yes, DOJ’s got to deal with it.”

Politically, using Trump's famous 2016 campaign mantra against him has its selling points. Candidates can stand out in a supersized field by speaking to the faction of the party’s base that already feels deflated by Democratic leaders’ refusal to launch impeachment proceedings and angry that Mueller declined to make a final judgment on whether Trump should face prosecution for obstructing justice.

“As the stakes get higher for the Democratic field and the nation, the incentives for many candidates is to up the rhetoric to woo the base, draw attention and win primary voters, debates and delegates,” said Scott Mulhauser, a former aide to Vice President Joe Biden. “Where this all lands, who will go farthest and what gets proposed next is anyone's guess, so each candidate has to sort through the dumpster fire of news every day, hoping their responses and their path to victory are the winning ones.”

But law enforcement veterans warned that candidates engaging on the subject are also opening up Pandora’s box. To start, they’re gift-wrapping for Trump a potent talking point he can use to excite his own voters: Keep him in office or he’s going to be fighting for his own freedom. Beyond that, Democrats risk creating their own toxic situation if they take over the White House in 2021, forced to try and advance a post-Trump agenda alongside the first ever federal criminal trial against a former American president.

“You can see a case where an incoming [Democratic] president might not want a prosecution of Trump. It has the ability to blot out your entire agenda,” said Matthew Miller, a former Obama-era Justice Department spokesman. He called it a “very slippery slope” that the next president in many ways won’t even have control over — especially if they actually step back and leave it to their new crop of DOJ leaders to decide.

“It’s a massive thing, but an independent attorney general might determine he or she has no choice,” Miller said.

Democrats have been trying to articulate what the world would look like for Trump in a post-White House era. Their troubles have been fueled in part by a POLITICO report earlier this month that the party’s de facto leader, House Speaker Nancy Pelosi, pushed back on colleagues clamoring for impeachment by declaring: “I don’t want to see him impeached, I want to see him in prison.”

A few days later, Beto O’Rourke said on ABC’s “This Week” that he thought Trump had committed crimes that should be prosecuted.

“I would want my Justice Department, any future administration’s Justice Department, to follow the facts and the truth and to make sure at the end of the day that there is accountability and justice,” the former Texas congressman said. “Without that, this idea, this experiment of American democracy comes to a close.”

Next came Harris, who in an NPR podcast interview that aired last Wednesday took the biggest step yet in sizing up what she’d expect from her DOJ on the prosecution front if she defeated Trump in 2020.

“I believe that they would have no choice, and that they should,” said Harris, who also is a former California attorney general and San Francisco district attorney. “I believe there should be accountability. Everyone should be held accountable. And the president is not above the law.”

Then Buttigieg got in on the action. “I would want any credible allegation of criminal behavior to be investigated to the fullest,” he told The Atlantic.

All of the clamoring for Trump’s prosecution — and the parsing of how it would play out — has alarmed law enforcement experts.

“She refrained from chanting, ‘Lock Him Up!’ — for which I suppose we should be grateful,” Ben Wittes, a senior fellow in governance studies at Brookings and the editor-in-chief of the blog Lawfare, wrote of Harris.

He added that while Trump started the bombast in 2016, it nonetheless “is poisonous stuff in a democracy that cares about apolitical law enforcement.”

Many others agree.

Axelrod, the senior Obama-era DOJ official, said it is vital for Trump’s successor to “ensure that the traditional wall of separation between the White House and the Department of Justice on criminal matters is rebuilt,” especially in light of Trump’s possible legal troubles.

Elie Honig, a former federal prosecutor from New York, urged the Democratic candidates to try and stay away from the topic. “It simply is not the president's job to tell DOJ who to charge or with what crimes, and it's inappropriate and potentially dangerous for any president do so, in any context,” he said.

Some of the Democrats have since tried to parse their initial remarks — though they aren’t exactly doing much to back away from them.

Democratic candidate Pete Buttigieg said he would want any credible allegations of criminal behavior against Trump "to be investigated to the fullest." | Al Drago/Bloomberg via Getty Images

Harris later cited the Mueller report’s 10 instances of potential obstruction. “The Department of Justice after this president is no longer in office I would assume that they’re going to take a look at it and take it where the facts may lead them,” she said on MSNBC.

“My Justice Department will be empowered to reach its own conclusions,” Buttigieg said Sunday on CNN, though he also added, “I believe that the rule of law will catch up to this president. It doesn't require the Oval Office putting any kind of thumb on the scale.”

He also said: “I trust the DOJ to reach the right determination, at least the DOJ that I would … set up. And the less that has to do with the directives coming out of the White House, the better.”

Trump’s replacement wouldn’t be the first modern-day U.S. president to face questions about how prosecutors should treat their predecessor.

President Barack Obama faced pressure from his left to prosecute George W. Bush and Dick Cheney for alleged crimes tied to the Iraq and Afghanistan wars. But as president-elect in 2009, Obama told ABC’s George Stephanopoulos he had “a belief that we need to look forward as opposed to looking backwards.”

Still, the clamor continued. Even as Obama’s top aides early on tried to tamp down talk of plans to charge any Bush-era officials involved in “enhanced interrogation” programs, the dust didn’t settle until Attorney General Eric Holder ruled out prosecutions in August 2012, following an extensive audit.

Bush was spared right before his 2001 inauguration of having to deal with the fallout of a potential post-presidential indictment of Bill Clinton. On his last day in office, the Democratic lame-duck president — who’d been impeached two years earlier by the House but acquitted in the Senate — reached a deal with prosecutors to accept a five-year suspension of his law license, a $25,000 fine and an acknowledgment he’d breached professional conduct in his testimony about sexual misconduct.

In return, Clinton skirted legal jeopardy when he was no longer president.

And, most memorably, President Gerald Ford avoided the issue by offering Richard Nixon a full pardon, arguing that the country had to move on from the Watergate scandal that forced his predecessor to resign. Ford’s decision defined his presidency and played a key role in his 1976 loss to Jimmy Carter.

While a potential Trump prosecution could be at the very top of the to-do list for a Democratic administration in 2021, Miller said the next crop of Justice Department leaders may take their cues from Congress should it decide against impeaching Trump, as well as the Attorney General William Barr, who declined to bring charges against Trump.

Even if the new attorney general disagrees with Barr’s rationale, his successor may not want to reopen a case against Trump because “it is too much to put the country through,” Miller said.

That could be the ultimate kick in the gut for pro-impeachment Democrats who were told that Trump would get his comeuppance once he’s out of office.

“But such is life,” Miller said. “People should just be happy he’s gone from the presidency at that point.”