Last week, NPR’s Lulu Garcia-Navarro asked Joe Biden whether, if elected, he could envision Donald Trump being prosecuted. Biden replied that the prosecution of a former president would be a “very, very unusual thing” and probably “not very good for democracy.” The former vice president said he would not stand in the way if the Justice Department wanted to bring a case, but when Garcia-Navarro pressed him, he suggested she was trying to bait him into a version of Trump’s threat against his 2016 opponent: “Lock her up.”
Biden’s reticence is understandable, because a president who runs the White House as a criminal syndicate creates a conundrum for liberal democracy. In a functioning democracy, losing an election should not create legal liability; there was a reason Trump’s “Lock her up” chant was so shocking.
But you can’t reinforce the rule of law by allowing it to be broken without repercussion. After four years of ever-escalating corruption and abuses of power, the United States cannot simply snap back to being the country it once was if Trump is forced to vacate the White House in January. If Biden is elected, Democrats must force a reckoning over what Trump has done to America.
Of course, a Biden victory is far from assured, and if he loses, there may be no stopping this country’s slide into a permanent state of oligarchic misrule. But right now, while there’s still hope of cauterizing Trumpism, ideas about post-Trump accountability are percolating in Democratic and activist circles.
Last year Biden’s running mate, Sen. Kamala Harris, of California, said that she believed the Justice Department would have no choice but to pursue criminal charges against Trump for the instances of apparent obstruction of justice outlined in the Mueller report. In January, Sen. Elizabeth Warren, D-Mass., called for a Justice Department task force “to investigate violations by Trump administration officials of federal bribery laws, insider trading laws and other anti-corruption and public integrity laws.” The House is discussing post-Trump reforms on issues including abuse of the pardon power, foreign election interference and the independence of inspectors general.
The Center for American progress, a liberal think tank with close ties to the Democratic Party, recently released a report titled, “How a Future President Can Hold the Trump Administration Accountable.” Protect Democracy, a legal group founded by Ian Bassin, Obama’s former associate White House counsel, also has started to think about what accountability processes should look like, drawing on the experience of countries around the world that have transitioned to democracy from authoritarianism.
“We have just been through a colossal test case in how you corrupt and incapacitate a great democracy,” said Sen. Sheldon Whitehouse, D-R.I. “And failing to learn those lessons is a disservice to that democracy.”
Whitehouse was one of the Democrats who, in 2009, called for some sort of Truth Commission to examine the legacy of the last Republican to wreck the country. George W. Bush’s presidency left America “deeply in debt, bleeding jobs overseas, our financial institutions rotten and weakened, an economy in free fall,” Whitehouse said then. His administration took the country to war based on lies and authorized torture. There was a “systematic effort to twist policy to suit political ends; to substitute ideology for science, fact, and law; and to misuse instruments of power.”
“Disclosure and discussion,” the senator said in 2009, would be the difference between this history serving as an instructive lesson or “a blueprint for those darker forces to return and someday do it all over again.”
But once President Barack Obama came into office, his team didn’t want to look back. Ben Rhodes, formerly a senior Obama adviser, told me that the team feared it would have been “incredibly disruptive,” amid an all-consuming financial meltdown, “to launch investigations and prosecutions of your predecessor.” There was the problem of precedent: It can be a sign of democratic breakdown when a new government goes after officials from the old one. Further, said Rhodes, “high-ranking people who were very busy with two wars and a financial crisis” didn’t have the bandwidth to navigate the political complexities of a process that would look, to Republicans, like partisan vengeance.
The Obama administration’s logic then — like Biden’s today — made a certain amount of sense. But it’s clear, 11 years later, that those decisions had a cost. The “lack of accountability that people felt around the financial crisis and around torture didn’t go away,” said Rhodes. “It metastasized.” A generation of Republicans learned that there was no price for flouting the rules.
This time, Rhodes believes some sort of commission is warranted. “If you look at other countries, it’s important that the process be constructed in a way that doesn’t feel politically motivated, that doesn’t feel like revenge,” he said. It should be, he said, a “safe space for people to come forward and share what they know about what happened.”
As Rhodes suggests, any post-Trump rebuilding requires learning as much as possible about the president’s many misdeeds. Right now, we don’t know what we don’t know — for every scandal that a whistleblower or journalist has brought to the public’s attention, there are likely many more that are still secret.
The administration’s failure to contain the coronavirus — exacerbated, according to reporting in Vanity Fair, by Trump’s hostile indifference to hard-hit blue states — deserves something akin to a 9/11 commission. So does the wholesale corruption of American diplomacy, only a small part of which was addressed by impeachment. Just last month, The New York Times reported that Trump instructed America’s ambassador to Britain to press the British government to hold the British Open golf tournament at Trump Turnberry, the president’s money-losing golf resort in Scotland. But we have little visibility into how fully U.S. foreign policy has been perverted to serve Trump’s personal interests.
But simply airing this regime’s transgressions will not be enough. Sam Berger, who wrote the accountability report for the Center for American Progress, points out that Trump and his enablers can’t be shamed. To reveal all they’ve done without imposing consequences could only underline what they’ve gotten away with, a terrible message to future administrations. “There’s not a confusion as to whether or not Trump is acting corruptly,” Berger said. “It’s not that we suffer from a deficit of instances we can point to and say, ‘That was wrong and you should be embarrassed.’ They’re not embarrassed!”
So where there’s been malfeasance, we need legal sanctions. Prosecutions that likely would have happened had Trump not had presidential immunity — like the campaign finance case that helped land his former attorney, Michael Cohen, in prison — should go forward when he’s out of office. The CAP report calls for every government agency to “conduct an immediate internal review to identify corruption during the Trump administration and publicly report on the steps it will take to address it. Where appropriate, information obtained during these reviews must be shared with law enforcement, inspectors general, and congressional committees.”
In order to avoid repeating Trump’s politicization of law enforcement, a President Biden would need to give maximum autonomy to those in charge of Trump probes, which he’s already inclined to do. Bassin, from Protect Democracy, goes so far as to argue that if elected, Biden should choose an attorney general who hasn’t been involved in Democratic Party politics in order to make the post-Trump cleanup look as fair as possible.
“If America’s lucky enough to be wrestling with the very difficult questions of accountability that countries face after an abusive autocratic regime, it’s going to be essential that the attorney general be seen as independent and not as an arm of the White House or Democratic Party,” Bassin said.
Should Trump officials face prosecution, Bassin worries about even the appearance of a political vendetta. “If they are seen as political retribution, and look in any way like President Trump’s own claims to ‘lock her up,’ that can actually be more destructive than restorative,” he said. “It risks sending us down a downward spiral where each side, when winning power, seeks to prosecute its opponents.”
Given that Trump has convinced large swaths of the country that the FBI is a hotbed of leftist subversion, it’s hard to see how any prosecution would seem legitimate to most Republicans. But Bassin holds out hope that a President Biden could restore, among a majority of the country, “an understanding that there is a role for an independent Department of Justice.”
“I don’t underestimate the challenge here, but he’s got to do all the things that are possible to get us back on that path,” Bassin said. “Otherwise we are going to be fighting over the very foundational institutions of our democracy endlessly.”
This might be our fate regardless. But he’s right about the challenge for Democrats, should they take power. They must extirpate Trumpism, without ever seeming to imitate it.
Michelle Goldberg is an Op-Ed columnist for The New York Times.