It
is hard not to think that the Trump administration represents a major
inflection point in American history. If he is reelected, will
anything ever be the same, either the specific policies (health,
environment, immigration, tax, etc,), or the ability of government to
act competently (COVID 19 being only the latest and most blatant
example), or our very mode of government (liberal democracy vs.
populist authoritarianism)? On the other hand, if he should be
rejected, what steps will be necessary and possible to take us back
from the brink?
Should
Trump be defeated for reelection, it's not clear what steps the new
administration would take. It would depend on the situation –
what's happening with COVID-19 and the economy, for one thing; how
the Democratic coalition shakes out, for another; and how big the
Democratic victory is, for a third. But no matter what the
unknowable future holds, it will be a good idea to be ready for it
with plans to achieve reform.
Certainly,
many, many substantive policies will need to be reversed, revised,
rethought, and reestablished, and many new ones instituted. But as
hugely important as that will be, I want to concentrate instead on
what might be done to reestablish and solidify American liberal
democracy and our system of checks and balances. Trump checks every
box to qualify as a would-be populist authoritarian, so it is no
exaggeration to say that what he has done is a threat to our system.
(see Levitsky
and Ziblatt).
We
know, of course, that the constitution is really an outline, and that
the functioning of our government evolved with laws and norms adopted
through the years, as our people and conditions and understanding
have changed. So as singular as this time feels, it's one of a
series – think Civil War, Depression, Watergate. Maybe this time
the adjustment won't be as big as those were, but it will quite
possibly be significant.
One
more point before we launch into examination of the Trump innovations
and possible responses. If reforms are to be effected, it's a good
idea to remember what tools are in the toolbox. I think these are
the major ones:
Constitutional
amendment
New
Legislation
Presidential
executive action
New
interpretation or resuscitation of existing congressional powers
Reassertion
of norms or declaration of new norms
Efforts
to affect public opinion
Trump
Transgressions and Possible Solutions
Problem:
Trump's attacks on oversight, by congress, Inspectors General, ethics
units, and other bodies, has been devastating. He has ignored
requirements to supply documents, has blocked testimony from
employees and former employees, has retaliated against those who do
testify, has dangled pardons for those who are non-compliant with law
enforcement, has sought to publicly identify whistleblowers, has
fired officials not compliant with his demand for loyalty to the
person of the President, and has claimed immunity not only from
indictment, but even from investigation. Congress has been hamstrung
in enforcing its rights,
partially because of Republican connivance, but more decisively
because disputes between congress and the White House have been tied
up in lengthy court proceedings, showing graphically that justice
delayed is justice denied. Just the most recent incidence of
escaping oversight has been his dismissal of legislative oversight on
the corona virus rescue package, both by declaring he has no
intention of abiding by the law, and then dismissing monitors who
might be independent and replacing them with loyalists.
Possible
Solutions: There are already laws on the books for
disclosure of materials and witness testimony that Trump is
flagrantly disregarding and contesting. These laws should be made
even stronger, with time limits given along with concrete examples of
what materials and witnesses congress is empowered to command,
including grand jury testimony. Should there be a dispute, there
should be mandatory rapid review of disputes by the Supreme Court.
Congress could also declare its intention to use its power to compel
directly, specifically including using its Sergeant at Arms to jail
subpoena resisters.
Problem:
Trump has notoriously attacked the electoral process itself by
allowing and soliciting foreign interference. A longer standing
problem not directly attributable to Trump has been actions in the
states to suppress the Democratic vote, such as purging voter rolls,
gerrymandering, and limiting time and place for voting.
Possible
Solutions:
Legislation
should supply clarifying and precise language for the constitutional
prohibition on foreign interference, and sanctions other than
impeachment should be prescribed for violation, including fines and
jail for perpetrators, rewards for whistle-blowers, and possibly even
including decertification of the election. Stronger laws and
probably a constitutional amendment are needed for the federal
government to intercede on state-run elections and set standards.
New evidence and arguments need to be brought to the Supreme Court to
reinstate pre-clearance established by the Voting Rights Act.
The Federal Elections Commission needs to be resuscitated, with
steps taken for appointment of commissioners with long terms, high
ethics, and a new process of appointment. Sanctions for election law
violations by officials or those associated with officials need to be
increased, including jail terms.
Problem:
Trump's concept of presidential powers is so extreme, even in the
era of the
Imperial Presidency, as to constitute a qualitative change that
many have rightly judged to bring the powers of the office close to
those of a king. Typical has been his misuse of the pardon; his use
of demotions, transfers or dismissals of Inspectors General and those
who testify against his will; transfer of monies illegally from one
intended use to another (from defense to the wall); overuse of the
“acting” status; tolerance of violations of the Hatch Act; not to
mention blatant nepotism. These are just examples.
Possible
Solutions:
Many individual acts of reform, bolstering the clear intent of the
constitution, are possible. For instance, reforming the presidential
pardon by requiring a cosignature from the Speaker of the House is an
attractive option.
Requiring that demotions, transfers, or dismissals for IG and other
posts to be “for cause” would be protective, as well as giving
fired IG's a private right of action to sue for reinstatement, which
would force the President to show cause for the action in court.
Putting a time limit on officials serving with “acting status”
should be considered. Legislation on Presidential intimidation of
judges and suborning defiance of judicial decisions should provide a
basis for indictment. Forbidding federal employment of relatives of
the President and high officials unless they were in place beforehand
could be enacted. The Hatch Act should be strengthened with
significant penalties prescribed. Adding prohibition of crimes
against humanity (children in cages, defying international law on
asylum) and genocide, and making that a basis for both impeachment
and indictment in the United States and in the International Court of
Justice, would be an admirable constitutional amendment.
More
generally, it seems that we need to invent penalties for presidential
infractions north of censure but south of impeachment in an era when
“name and shame” cannot deter the shameless. An example might be
that, should a president be found culpable of a significant deviation
from law, but one that did not reach to the level of meriting removal
from office, that a monitor be appointed who would have real time
access to the actions in question and real time ability to transmit
this information to congress, which would then have the ability to
suspend the President's authority in that field. This would be an
extreme change from the present, and might not work out, but
something has to be invented to provide something more forceful than
shaming and less extreme than impeachment. We don't know now what
that something might be.
This
issue of abuse of power, however, is one where extensive individual
repairs and bolsters might not be enough. Beyond individual fixes
lies the more general issue of the gestalt of the Presidency and the
gestalt of the interactions of the branches of government. Maybe a
commission is needed to highlight how things should work, to make the
norms very clear. A high-level commission with a report to the
nation, then endorsement by both houses of congress and the
President, might have a lasting effect. Commentaries on basic
documents and prescriptions for action based on those documents has
precedent in many religions.
Problem:
The Department of Justice has become a political arm of the President
to excess. Especially since the appointment of William Barr, it has
misrepresented the Mueller Report and discredited its findings, it
has dismissed long time high career employees for fabricated reasons,
and it has opposed and ignored House of Representatives notices and
requests in a most political way. It has acted increasingly and
startlingly as a personal arm of the President, and indeed both Trump
and Barr have expressed sentiments indicating that that is the way it
should be.
Possible
solutions:
Although it is a relatively modern
innovation
for DOJ to be regarded as non-political, the new post-Watergate norm
of DOJ's working for the constitution and the people rather than the
President should be institutionalized, maybe even by establishing it
as a quasi-independent body. Legislation rejecting the 1973 DOJ
finding that the sitting President cannot be indicted would be an
essential step. This matter of the norms of DOJ attitudes and
actions is so important that it, too, could well be the subject of a
special commission, which would then produce a document that would
guide actions in the future, although not by specific rules.
Problem:
Out and out conflicts of interest and corruption are rife in the
Trump administration, many of them abetted by nepotism. Financial
documents such as tax returns have not been submitted as is
customary, financial statements have been so lax as to have
necessitated innumerable filing of additions (with no penalties for
the “incompleteness”), relationships with foreign entities with
extensive prior and current relationships with the President and his
family and other officials have been extensive and secret.
Presidential properties have benefited from US government payments,
and staying at Trump properties has apparently been de rigueur
for those who would do business with the government. Ethics
violations have been rife, and ethics officials have been summarily
replaced by loyalists. The Department of Justice has been inactive
in this sphere.
Possible
Solutions:
Tax returns and detailed financial statements need to be required on
an ongoing basis of all top officials, and then be available
publicly. High public officials in all branches should be forbidden
from trading in individual stocks. Other activities need to be
specifically delineated as prohibited, with illustrative examples,
many of which would be available from this administration. Stronger
investigative efforts independent of the President need to be
institutionalized. Ethics officials are now spread
out
among agencies, many can be dismissed at the President’s pleasure,
and the President is insulated by having a White House ethics
operation that, if staffed by loyalists, insulates the President from
true investigation. Legislation might instead establish two separate
Commissions on Ethics, one in the Department of Justice and the other
in Congress, with a strong liaison between them, and with connections
to the IG’s and independent means of enforcement.
Independence and transparency would be key.
No
doubt investigations will find illegal activities in the Trump
administration. But just as important are those activities that are
legal but shouldn’t be. This would be a perfect time to attack
this issue head-on, and to pass very specific laws making illegal
specific acts and practices, and prescribing financial and
incarceration penalties. It would
seem that many younger members of the House might be perfect members
of a committee with this mission.
Problem:
Beyond disagreeing with prior objectives of governmental officials,
the Trump administration has often simply declined to do its duty in
operating them (see The Fifth Risk by Michael
Lewis).
The simple ability and will to operate the functions of government
has been deficient as never before.
Possible
solutions: Transparency might help with this: all cabinet
departments report their activities to Congress each year. Congress
might be compelled to issue a responding document where they must go
on the record as accepting some and rejecting other contentions, and
the documents would be public property. Furthermore, the departments
dealing with science might be required to have professional panels of
senior respected officials who would sit in scientific judgement on
the department and be able to accept information from internal
personal on an anonymous basis, with public disclosure of their
findings, and powers of inquiry.
Problem:
The coarse demeanor, unbridled mendacity, elevation of thuggish
behavior, racism and support of white supremacy, and preference for
dictators as friends and preferred allies is informal, not illegal,
but very destructive. The moral ideals of a nation are important,
even when we know that hypocrisy is a frequent companion. Cynicism
is the enemy of good government and a progressive future. The
problem here is that the Trump base often thrills to this rebellious
quality of Trump, and many of them feel that his posturing embodies
many of their own resentments of their life’s frustrations.
Possible
solution: It would be a mistake to bless the election and
move on without examining this phenomenon. It should be taken as a
learning and educational opportunity, rather than simply a chance to
condemn and boast that “we won.” Finding a way to examine and
meet the grievances directly, finding a way to respond to those who
represent these issues in a less-threatening and more decorous way,
and strengthening laws that prevent intimidating and hateful
behaviors and supporting them with fines and arrests, would be an
admirable pincer movement.
Problem:
Large parts of the public are either ignorant of the basics of civics
education, or are inattentive. Democracy requires that voters have
information on which to base their votes, and that they be educated
to know how to judge this information. They need to know what a
President is required to do and how he or she might be prepared to do
that, and they need to know how our liberal democracy works in theory
and practice. They need to know how a democracy differs from an
autocracy, and the definition of a demagogue.
Possible
solution:
In a country where perhaps a majority of citizens cannot name the
three branches of government, and where civics education has
drastically
declined,
nothing short of a major effort at civics education is necessary.
This effort might include a requirement of civics and American
history classes for three years in middle school and high school,
with the Department of Education leading the efforts to produce the
necessary materials and supplying generous funding, national awards
for excellence, and special teacher stipends..
There are a myriad of programs that can be imagined. The project
needs to be made a high priority and acted upon.
The
Realities of Reform
These
are just ideas of what might be the elements of a Post-Trump reform.
Who knows what will be possible and which items will receive the
highest priority when conditions change? Reforms will be dependent
on the will of the people as expressed in the November election, and
events as yet unforeseen.
It’s
always a good idea to visit “the last time this happened.” The
most obvious analogy to our present situation might be Watergate.
There are obvious similarities in both the flouting of laws and
norms, as well as Presidents with deeply flawed and aggressive
personalities. In both cases, the Republican party stuck with their
chief, until the endgame in Watergate, and we don’t know the
endgame yet with Trump.
Trump’s
deviations from a “normal” President, however, are more extreme
than with Nixon, both in the extent of the official violations and
the extremity of the personal qualities. Whereas Nixon was highly
capable and experienced, and accepted the game as it was generally
played, Trump has no basic abilities beyond that of a showman, and is
acquisitive to the extreme, as Nixon was not.
In
addition, the times are different. In Nixon's time the United States
was much stronger internationally than now, still rising in power and
wealth, and the palpable sense of decline of preeminence was not
present. In Nixon's time children could still expect to do better
than their parents as a matter of course. In Nixon's time the
Republican party was more moderate, dark money was not so much of a
factor then, and Nixon's world didn't have a rise of authoritarians
who celebrate their form of government as superior to the stodgy old
liberal democracy of the United States and the West. And in Nixon's
time, white people were still a strong majority in virtually all
parts of the country.
Despite
these differences, Watergate is probably the most useful guide our
thinking. The effort to reform after Watergate was profound.
“
(The
Watergate reforms) sought
to restore faith in the U.S. political system by combating the
corrupting influence of money in politics; promoting ethics and
transparency in government; protecting people against abuses of
government power; and limiting certain extraordinary exercises of
presidential authority.”
Berger
In
addition to the strength of these reforms – which included the
establishment of the IG system, by the way – the imprisonment of so
many of the Nixon officials was shocking and impressive, even though
the course of justice for Nixon personally was diverted by President
Ford's pardon. Nothing says “wrong” like jail. The image of
Watergate still reverberates, the headlines are still striking, the
stench is still in the air. And the reforms, by and large, have
stuck.
A
cautionary object lesson in the opposite might be how Iran-Contra was
resolved when George H. W. Bush accepted the suggestion of Attorney
General William Barr and preemptively pardoned the conspirators, thus
also exculpating himself. The shame and the lesson were lost as an
example to the public, and the illegal usurpation was not even
mentioned when President Bush died. The difference in how Watergate
and Iran-Contra were handled and what their impact was, is striking
and informative.
Will
there be active reforms that contradict the trends of the Trump era?
Will there be a V-bottom, and will liberal democracy rebound even
more robustly? Will active investigations and pursuit of miscreants
of the Trump era resemble those of Watergate, if not for prison
sentences, then at least for claw-backs of ill-gotten gains? While
some say we don’t want to be a Banana Republic where political
opposition is jailed, immunity for miscreants would be a worse
message. Given the extent of the Trump depredations, this is likely
to be a full employment program for investigators and lawyers, but it
is hard to think of a just alternative to intense discovery,
reparative actions, and very active reform.
Or,
possibly, will a new coalition in power decide that they like the
system Trump has instituted, and find the new executive freedom to
act congenial? In that case they might concentrate on reversing
policies, instituting new ones, and going easy on reverting to checks
and balances. It seems unlikely, but it's possible.
They
say that history doesn’t repeat itself, but it rhymes. Or, as Marx
said about the 18th
Brumaire of Louis Bonaparte in perhaps his most cited quotation:
“History repeats itself, the first time as tragedy, the second time
as farce.” Farce may be funny and ironic, but it can also be very,
very sad.
We
shall see.
Budd
Shenkin
With
the help, corrections, and suggestions of David Levine, who is not
responsible for deficiencies, of course.
