Again and again, President Donald Trump has violated, evaded, or ignored the law. The Constitution says a president cannot accept payments from foreign governments, but Trump did. The Constitution says that the principal officers of executive departments—members of the Cabinet—must be confirmed by the Senate. Trump junked that rule too, relying instead on his power to appoint temporary acting officials. A century and a half of legal precedents establish that a president must generally comply with subpoenas from Congress, even if he does not like the questions. Again, Trump disregarded seemingly established law.
Courts have sometimes checked the Trump presidency, but not always. But court decisions take years to decide and longer to enforce. In July, the Supreme Court ruled that Congress and New York State prosecutors could legally subpoena Trump’s accountants and bankers for his financial records—a ruling that was followed by yet more Trump litigation seeking to challenge, or at least delay, the subpoenas. Even impeachment did not restrain Trump. His strong grip on his party—and on a sufficient minority of the American public—protected him from the Constitution’s ultimate remedy.
The Trump presidency has exposed the degree to which presidential compliance with law is voluntary. The American system relies heavily on the president’s own sense of honor and integrity, on the president’s own wish to do what is right. The Trump presidency demonstrated how inadequate are custom and tradition to restrain a president determined to do wrong.
Half a century ago, Congress and many states enacted ambitious reforms in response to Watergate and other abuses of government power. The dominant theme of those 1970s reforms was disclosure. Politicians would disclose more of their personal finances. Parties and campaigns would disclose more of their donations. Executive-branch agencies would disclose more to Congress. Congress would open more of its committee meetings to public view, and the sessions of the House and Senate to television cameras.
“Sunlight is said to be the best of disinfectants,” Louis Brandeis wrote in 1913, and the reformers of the 1970s adopted that motto as their own.
Over the past half century, some of those disclosure mechanisms have deteriorated. The fog of dark money has considerably obscured election finance, for example.
But sunlight disinfects only when the general public and elite stakeholders care about what is disclosed. In the Trump years, that assumption of the reformist creed of the 1970s has repeatedly proved false. Scandal after scandal has come to light, without Trump suffering political consequences severe enough to deter or correct corrupt behavior
Trump has done his best to defeat disclosure, notably by refusing to release his tax returns. Still, the main elements of Trump’s behavior in office have become visible. There is no exact count of the public money that has flowed into Trump businesses, but at a minimum it exceeds $1.1 million. There is no count at all of the money Trump has collected from foreign governments, but it has been disclosed that representatives of 22 foreign nations have stayed at his properties. It became a public scandal that he tried to score a massive international payday for himself by holding the 2020 G7 summit at a golf resort he owns in Florida. There has been some disclosure of the flow of Republican Party funds to Trump businesses: at least $17 million since 2016. It’s murkier how much Trump pocketed from his 2017 inauguration committee, but court documents suggest that the figure might be substantial.
Likewise, the defiance of congressional subpoenas happened in plain sight. Trump brought that fight to the Supreme Court and lost—but bought himself enough time to postpone any response until after the 2020 election. Many of the worst outrages of the Trump years were blurted by the president himself on live television: Yes, he fired FBI Director James Comey in order to thwart an investigation of Trump’s Russia connections; yes, he asked China and Ukraine to deliver dirt on his most likely presidential election opponent; yes, he wants to cram through a last-minute Supreme Court appointment to help him in the legal battles he expects after the 2020 vote. Americans saw and heard all this. Many cared. But not all. And not enough.
Post-Watergate America was a country characterized by a strong center and weak partisanship. During the Watergate scandal, a president elected by almost 60 percent of the vote lost office when proof of his personal involvement in criminal activity turned the leaders of his own party against him.
That’s a vanished world. The America of the 2020s is more polarized and partisan than at any time since the aftermath of the Civil War. Trump was elected by 46 percent of the vote, and nothing—good or bad—has much moved the dial ever since. In 2017, 2018, and the first half of 2019, Trump presided over the best economy since the late 1990s. His average approval rating never reached even 50 percent. In 2020, Trump presided over the worst sequence of disasters since the early 1930s. His poll numbers never dipped below 40 percent. When he was caught dead to rights in the Ukraine scandal, his party stayed loyal to him, with the exception of only a single senator. When he brazenly violated the law and delivered his nomination acceptance speech from the South Lawn of the White House, his party leadership all joined him there. When he was recorded admitting that he had knowingly underplayed the worst pandemic in a century, there was hardly a murmur of reproach from his own side.
Disclosure assumes a political system that cares about the things disclosed. And that is not the political system the United States has in 2020.
That insight is the basis for a new sequence of political reforms proposed by House Democrats September 23, the Protecting Our Democracy Act of 2020. The bill proposes more than a dozen measures to address specific abuses of the Trump years. And for the most part, disclosure alone is not considered a sufficient remedy.
The first measure would restrict the presidential pardon power. It would prohibit self-pardon by the president, clarify that it is indeed illegal for a president to sell pardons, and require release to Congress of information about any pardon from which the president or his family might personally benefit.
The second measure would stop the clock on statutes of limitations for any federal crime committed by the president or vice president. Because current rules forbid prosecuting the president for federal crimes, it’s unfair that he can use his period in office to outrun federal crimes he might have committed before or during his tenure.
The third measure would codify the emoluments clause of the U.S. Constitution into statute. Trump brazenly and nakedly violated the clause. But the clause is not self-executing. The Constitution insists that the president should not accept payments from foreign governments. It offers no guidance as to what should happen if a president goes ahead and does it anyway. The third measure also restricts the president’s ability to pocket money from domestic interests, such as a party committee or party candidates.
The fourth puts teeth into congressional subpoena powers. As things stand, it’s up to the executive branch to enforce subpoenas—which has proved quite a problem when it is the executive branch that decides to ignore them. The new proposal would allow Congress to bypass the executive and ask courts to impose fines on defiant officeholders.
The fifth would reduce the president’s scope to redirect money that Congress voted to spend on one purpose and to instead spend it on a different purpose.
The sixth would curtail the vast agglomeration of emergency powers horrifyingly detailed in The Atlantic back in 2019.
The seventh—this one does rest on disclosure—would require the attorney general to keep a log of his or her contacts with the White House and provide that log to the Department of Justice’s inspector general twice a year.
The eighth would clarify that inspectors general may be removed only for cause. It would require the president to provide documentation of that cause to Congress before the removal went into effect.
The ninth would protect whistleblowers and clarify that it is indeed legal for whistleblowers to provide information directly to the relevant committee of Congress.
The 10th would limit the maximum tenure of acting Cabinet officials to 120 days.
The 11th would eliminate the courtesy that leaves enforcement of the Hatch Act to the president when White House personnel are involved. Trump abused this courtesy to free his staff to do political work at taxpayer expense. This measure also raises the maximum fine under the Hatch Act to $50,000 and expedites collection of those fines.
The 12th and 13th measures impose new requirements on campaigns, candidates, and their families to report foreign contacts—and clarifies that it is, yes, illegal for a U.S. campaign to accept dirt on political adversaries from foreign persons and governments.
You probably imagined that many of these proposals were law already. Arguably, many of them were. But a lot of existing anti-corruption law was informative or indicative, rather than punitive.
In a lecture delivered in 1897, the future Supreme Court Justice Oliver Wendell Holmes Jr. said that to truly understand the law, “you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”
Until now, however, the law around the presidency did not work that way. “Thou shalt not take foreign emoluments” may impress the honest and patriotic president. But what if the president is not honest or patriotic? What happens if that president accepts a foreign emolument? The answer turned out to be: nothing much. As a result, a dishonest and unpatriotic president grabbed with both hands, and corrupted one of the two great political parties to acquiesce.
The House Democrats’ reform bill obviously will not be enacted as long as Donald Trump can wield a veto. But if Trump is ejected in this year’s election and the Senate Republicans who protected him lose their majority, the reform bill—or much of it—may become law.
I’ve gone into some detail about the House Democrats’ bill to underscore how moderate it is, how respectful it is of the important prerogatives of a legitimate presidency. The bill does not, to cite just one example, forbid the president to talk to the attorney general about particular cases (although in almost every case, the president should refrain from doing that). It does not require the attorney general to inform Congress about such conversations. That would compromise the cohesion of the executive branch. It requires only that a record be kept, that it be shared at intervals with the Department of Justice’s own preexisting watchdog, the inspector general—and that it be available for later inspection by Congress if needed.
The bill does not, to cite another example, empower Congress to enforce its own subpoenas by inherent authority, as 19th-century Congresses sometimes did. That could easily lead to abuses of individual rights. Congressional subpoenas will be enforced in court, and the penalties for defying subpoenas imposed only by courts.
The bill does not, to take a third example, blur the status of inspectors general as executive-branch employees. It changes their status to make them more like civil servants, less like political appointees—but still chosen by, and answerable to, the executive, not Congress.
Much of the bill deals with things that most of us had supposed were already rules: the president should not sell pardons, for example, or use them as part of a cover-up scheme. But it turned out that rules against corrupt pardoning had been voluntarily adopted by past presidents. If a president did not want to comply, the rule could not readily be enforced against him.
In a way, you could read the bill as the Yes, Donald Trump Was a Criminal Act of 2021.
And that suggests two of the bill’s maybe inevitable but still poignant unintended consequences.
First, most of the Protecting Our Democracy Act is mind-crushingly morally obvious: Don’t accept clandestine political information from foreign governments. Don’t use the White House for your convention speech. The act of writing such basics into law in 2021 would lend some credibility to the future arguments of Trump’s enablers: Yes, much of what President Trump did was distasteful, but it was not strictly illegal. That’s why the country had to write new laws in 2021. I was as appalled as anybody else, but there was nothing to do—the president was acting within his rights as those rights existed at the time.
That argument is mostly false. Donald Trump did violate existing law. It was not in fact legal for him to use his official powers to extort foreign governments to fabricate political dirt on his political opponents—that was already prohibited by many laws. The problem was that the enforcement of those laws depended on mechanisms that had rusted out. It will be important to underscore that point in the future. What went wrong in the Trump era was not that the president delicately tiptoed around the law. What went wrong in the Trump era was that the cops in charge of the law were asleep, or senile, or in cahoots with the president.
Second, the Protecting Our Democracy Act amounts to a confession that the impeachment power is a dead letter. The House imposed the severest sanction a Congress can impose against an errant president. At trial, however, the president’s co-partisans protected him from removal—and after the trial, the president resumed his lawbreaking.
There have now been four serious presidential impeachment processes in U.S. history: Andrew Johnson, Richard Nixon, Bill Clinton, and Donald Trump. In retrospect, it’s clear that the important variable in the outcome was the state of party politics at the time of the impeachment.
The Nixon-Trump contrast is starkest. If Congress worked in the 2020s as it had in the 1970s, important Republicans would have broken ranks with Trump, and forced his resignation. If Congress worked in the 1970s as it does in the 2020s, Nixon would have served out his term. We have fully arrived at the predicament that Laurence Tribe and Joshua Matz warned of in their book on the impeachment process: When impeachment is most needed, it is least likely to be effective; when it is most likely to be effective, it is least needed.
And so, the House Democrats are making do with a fallback remedy, a second-best or third-best.
These reforms are all welcome and necessary. It’s a sad reflection on the state of U.S. politics that they are needed at all. The Founders imagined that Congress could set aside political partialities to act as a court of law upon an unfit president. That hope has proved one of their less workable ideas. Americans need to accept some sad realities about the state of their law and politics. That means new legislation that works around the defects of the impeachment remedy—and takes into account the grim fact of 21st-century hyper-partisanship.
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