Alex Brandon/AP Photo
Trump International Hotel, March 28, 2018, in Washington
Going out as it came in, the Trump campaign’s last days were ablaze with misconduct, corruption, and illegal activity with no regard for the law and no fear of consequence. According to the nonpartisan Campaign Legal Center, the final three weeks of the campaign produced a flurry of FEC filings with plainly illegal individual contributions far beyond the individual limit of $2,800. All told, the campaign took on $2.7 million in wrongful and excessive donations in the last 20 days. The Biden campaign’s FEC reports over the same period showed no similar pattern.
That misconduct is barely a blip in the course of the Trump experience, where a brazen disregard for the law and the expectation of total impunity has been perhaps the most coherent and consistent direction of the president’s four years at the helm. Trump himself and his various appointees engaged in crimes far more grievous than campaign-finance violations. The stuff we know about—the violations of the Emoluments Clause, the solicitation of foreign interference in elections, the tax cheating, the use of the military on civilian protesters, the sexual assault allegations and the attempted use of the Justice Department to fight them, the obvious and repeated obstruction of justice, and on and on—may be dwarfed by the crimes we haven’t yet been made aware of. Trump was impeached for a tiny percentage of this, and then he and his enablers in the attorney general’s office and the State Department and the Department of Homeland Security kept on unabated.
The need for a Trump Truth and Reconciliation Committee, for some exposition of the breadth of misconduct to allow for just the possibility of accountability, was a popular refrain in the lead-up to the November election. But since Election Day came to pass, the volume on those calls has dropped dramatically. When Alexandria Ocasio-Cortez suggested in November that the time for accountability was close at hand, her comments were met with alarm. Politico, in what purported to be a non-editorial piece, broke the fourth wall to assert that the suggestion that Trump et al. be prosecuted for their prodigious lawbreaking was “[r]arely a healthy sign in any democracy,” while quoting an anonymous White House official on the topic of accountability: “It definitely should scare the American people more than it scares me. That type of rhetoric is terrifying.”
That’s the messaging, somehow, that’s coming from many liberals as well. After rattling off various types of truth and reconciliation commissions in a recent column for The Washington Post (postwar, post-genocide, post-slavery, post-Nazi), historian Jill Lepore resolves that “[n]one of the conditions of a truth and reconciliation commission apply to Trump’s four years in the White House,” and “what the nation needs, pretty urgently, is self-reflection,” before decreeing that “history, not partisans, prosecute Trump.” But if history has taught us anything, it’s that history makes for extremely weak prosecution. Self-reflection is an antidote for bad behavior only in lenient preschools.
What exactly to do about Trump, Bill Barr, Mike Pompeo, and their epic corruption will be a defining question of the Joe Biden presidency. For many Democrats, the prospect of hauling a political rival before the courts is too messy and excessively political, the sort of thing done in banana republics and not in the high-minded and high-functioning political culture of American democracy. So appalled were Democrats by Trump’s calls to lock up Hillary Clinton, most are determined to overcorrect by proposing to give Trump’s crimes a pass.
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The modern Democratic Party tries to model good behavior. It rejects actions that could be perceived as partisan (seemingly still unable to internalize the fact that the GOP has remade every democratic procedure as partisan); it’s antithetical to their commitment to national “healing”—the process by which Democrats cede ground to Republicans after voters rebuke the GOP by taking the presidency away from them.
But that conventional wisdom on the impropriety of prosecuting presidents is dangerously ill-conceived. A failure to bring Trump to account before the law would mark a profound politicization of the legal system, one that would call into question the legitimacy of our rule of law and notch a new low in its undermining. The defining feature of a sickly democracy or a plain autocracy is crimes committed by the powerful going unpunished. If the facts are there, the choice should be clear. Observation of laws is not voluntary, nor is enforcement of consequence predicated on who is breaking them. All the world’s bipartisan commissions would do less to heal the country than merely proving that the rich and powerful are bound by the same set of laws as everyone else.
The defining feature of a sickly democracy or a plain autocracy is crimes committed by the powerful going unpunished.
For decades, Democrats have projected a general queasiness when it comes to the process of accountability. In the 45-plus years since their tough stance on Watergate brought Richard Nixon to the brink of removal and conviction for the Watergate crimes and forced his resignation, they declined repeatedly to see through the process of prosecuting crimes of powerful transgressors who happen to be Republicans, especially at the very top. They’ve mustered a wide array of excuses, from optics to perceived unpopularity. But that doesn’t stand up to scrutiny. President Gerald Ford’s 1974 pardon of Nixon was so unpopular that it cost him re-election. Still, Democrats soon embraced Ford’s decision in the name of national healing, helping to usher in Ronald Reagan just six years later.
Barack Obama swept into office with an impressive popular mandate, with large majorities in the House and Senate, in a stunning rebuke of Republican president George W. Bush. Obama’s campaign-trail suggestion that Bush would be held to account helped deliver his electoral blowout. But though Obama reversed Bush’s torture policies, he did not repudiate the USA Patriot Act, nor did he seek to hold Bush legal adviser and torture architect John Yoo to account. Obama’s Justice Department failed to indict any of the major banking executives whose illegal actions caused the collapse. Obama refused to use any of his considerable political capital on upholding the rule of law, only to give that capital up for nothing. The Republican Party, once so thoroughly discredited it was thought to be on its deathbed, came surging back within just two years, and soon reclaimed the House, the Senate, and eventually the presidency. Bush is now a famous portrait painter who doesn’t deign to weigh in on partisan politics, admired by Democrats as a beacon of rectitude compared to Trump. The Democrats’ refusal to prosecute obvious crimes has not only politicized and undermined the rule of law in the past, it also seeded their own political defeat in 2016, allowing those same Republicans to return to office more brazen and emboldened than ever.
In the impeachment investigation of Trump, there was plenty of evidence to show that the president had committed crimes. But Democrats dithered, delayed, and got outplayed by both special counsel Robert Mueller and Attorney General Bill Barr. Still, Trump is vulnerable to multiple prosecutions once he leaves office, and while Mueller felt it inappropriate to fully pursue a sitting president, he left ample evidence of Trump’s criminality lying around, ready to be put to use. If Trump arranges for a pardon, either resigning in favor of Mike Pence or by trying to pardon himself, he cannot be prosecuted for federal crimes. But if he is not pardoned, or if the Supreme Court rejects the idea that a president can pardon himself, Democrats are certainly not bound by Mueller’s prosecutorial timidity, and need to have a plan in place.
On the campaign trail, Biden initially pledged not to pull punches: In 2019, he unequivocally committed to not pardoning President Trump. But the closer he’s gotten to having the ability to actually do that, the more he’s wavered. Prosecuting Trump, he told NPR in August, would be “a very, very unusual thing” and “probably not very—how can I say it?—good for democracy.” No mention, of course, of how subversion of the uniform enforcement of the rule of law would be good for democracy.
Biden, like Obama, is an institutionalist, the sort who worships at the altar of bipartisanship and decorum that would never prosecute a political rival. He also staggers more than sweeps into the White House, thanks to a narrow Electoral College victory, no likely Senate majority, and a net loss in the House. He’ll have limited ability to accomplish anything legislatively in his first (and only) term. But any plan for process reforms, which Democrats of all types have indicated is top priority for the Biden presidency, has to include the process of seeking accountability and redress as the law requires.
Early indications are not promising. Biden’s rumored appointees for his Justice Department are descendants of the lineage of people who thought it was inappropriate for the Obama administration to pursue criminal bankers, torturers, or presidents. The person with the strongest reputation for ass-kicking likely will be Sally Yates, whose rep doesn’t exactly match her record. In fact, Yates is currently a partner at King & Spalding, one of the three major firms that supplied lawyers for Trump’s election strategy. That’s hardly the profile of someone who’s going to charge headlong in the task of rounding up Trump’s abettors.
It’s likely, moreover, that Biden is simply hoping other jurisdictions will do his dirty work. Letitia James, the attorney general of New York, has made something of a reputation of going after Trump and his affiliate acts at the state level; ditto District Attorney Cyrus Vance Jr. in Manhattan. Accountability is not a legislative act, nor is it a political one, and it remains one of the few places where Biden can accomplish something that is good for the long-term health both of the country and of the party. If he wants to heal the nation—he’s repeatedly sold himself as a the protector of America’s soul—prosecuting Trump and affirming the rule of law is the best way to do it. Trump’s supporters will cry foul and lash out in extreme fashion. But they’re likely to do that in response to anything Biden does—even something as apolitical as counting votes has merited an armed response from Trump’s most militant. If Biden’s only lasting legacy is to have brought about the end of the era of elite impunity, his presidency will have been well worth it.
