2020 has been a disaster for the Trump administration, mostly due to its poor handling of the COVID-19 pandemic, tone-deaf response to the murder of George Floyd by police, and excessive use of force against peaceful protesters in Lafayette Park to provide the President with a photo opportunity. Their poll numbers against former VP Biden have been falling, and his first rally since early March was a poorly attended dud. As a result, many progressives are cautiously letting themselves imagine what priorities we should have, as a country, if Trump leaves office in 2021.
Late Friday night on June 19, Trump and Attorney General William Barr signaled what priority they are most afraid of, by attempting to sack the man responsible for investigating Trump, his family, and the Trump Organization. First, Barr announced Manhattan U.S. Attorney Geoffrey Berman had resigned. Then Berman announced he wasn’t resigning, and only the President could fire him. Trump fired off that he wasn’t involved, leaving Barr holding the bag. While David Frum wryly noted that this display of incompetence was, “like the Saturday Night Massacre, only nobody checked whether the intended murder weapons were in fact loaded,” the intent was far more worrying.
Fortunately, it appears that Trump and Barr’s hand-picked (read: loyal and having no experience as a prosecutor) replacement is unlikely to be confirmed by the Senate. This particular guardrail of democracy is holding, if just barely. If Berman was in a red state, his replacement would likely be confirmed by the Senate due to the arcane “blue slip” process, which is a tradition, and not an actual law.
The message is clear, however: the Trump administration is absolutely terrified of being prosecuted after leaving office, to the point of attempting to commit a second Saturday Night Massacre. Between the Mueller Report, the impeachment and dodging the release of tax returns, there is ample evidence to suggest criminal activity has taken place. Already, eight Trump associates have been found guilty of crimes, and 29 foreign entities indicted as a result of the Mueller investigation. Former Trump White House National Security Advisor John Bolton’s book claims that Trump also solicited help from China in his 2020 reelection campaign.
Given the lengths to which the administration has gone to ensure that Trump, his family, cabinet members, and advisors are not prosecuted when he leaves office, the question remains if this should be a priority to pursue criminal investigations of this set of people.
Such a priority might seem hypocritical at first glance, though. Chants of, “Lock her up,” about Hillary Clinton are a staple at Trump rallies (still), and he has been obsessed with having her prosecuted. These were widely derided by both the left, and moderate Republicans, as disturbing. Prosecuting and jailing previous administrations, and political opponents, is the sort of thing one expects of autocratic regimes and corrupt developing-world governments.
The analogy falls apart quickly though. Clinton was investigated thoroughly twice by the FBI, which declined to press charges. The White House pushed hard to have her investigated again, but a 2018 internal review by the Department of Justice found that any irregularities in the investigation were insufficient to reopen the case.
Trump, however, has continued to call for prosecution of Clinton, and pushed Barr to indict President Obama and Vice President (and presumed nominee) Joe Biden. This attempted abuse of Presidential power is nothing new: Indeed, the impeachment revolved around attempting to leverage a manufactured foreign investigation into Biden for political advantage in the 2020 election.
What is forgotten, because it happened before many Americans today were born, is that prosecuting members of a previous administration that attempted to destroy democratic norms has happened before and is the correct response to autocratic attempts. The Obama administration was remarkably corruption-free by modern standards.
The fate of the Nixon administration provides a far more apt analogy, though. It is easy to forget that 69 government officials were charged as part of Watergate, and 48 convicted. It is also worth noting that Nixon’s Attorney General Richard Kleindienst, and former Attorney General John Mitchell, both did time in jail for their roles in Watergate.
While Gerald Ford pardoned Nixon in the name of “healing,” it was a deeply unpopular move, and Ford lost the 1976 election to Jimmy Carter in great part due to this decision. Indeed, Carter ran on the tag line, “I will never lie to you,” along with the promise of a transparent, ethical administration. America wanted previous administrations to be held accountable, because they instinctively realized that unaccountable, imperial presidencies breed corruption that is inherently corrosive to the kind of government we want.
It is also worth noting that the situation for American democracy today is far more dire than it was under Nixon. In 1974, the guardrails of democracy held firm. Senate Republicans were going to vote to convict Nixon, and it was ultra-conservative stalwart Barry Goldwater, along with republicans John Rhodes and Hugh Scott, who delivered the news.
Today, the guardrails of democracy are almost completely down. Trump has repeatedly done far worse than Nixon’s “third rate burglary” by soliciting aid from foreign powers, including adversaries Russia and reportedly China, as well as Ukraine. His administration has repeatedly attempted to obstruct justice by pushing law enforcement agencies to drop investigations of his people, attempting to replace the people responsible for such investigations with cronies, and pushing the legal concept of a unitary executive branch immune from any sort of oversight or investigation, even by Congress. Yet, Senate Republicans have made it clear they will never hold the administration accountable regardless of the crime or the evidence.
This doesn’t even begin to cover the appearances of corruption and conflicts of interest. The Saudi Arabian government rented huge blocks of the Trump Hotel in Washington, D.C. in what appears to be an attempt to curry favor with the administration. Ivanka Trump was granted numerous trademarks in China, just days before Trump reversed U.S. sanctions on the Chinese telecom company ZTE. The administration has put a staggering number of lobbyists in the federal government, many of whom are now in positions to grant favors to industries and companies for which they recently lobbied. One public citizens group has documented more than 2000 conflicts of interest. The appearances of rampant, uninvestigated corruption have led observers to question whether the Constitution can handle an administration so dedicated to tearing down the systems meant to prevent it.
Which is why, if evidence warrants it, thorough criminal investigations of the Trump administration are necessary to the survival of our country in 2021. For democratic governments to function, they require legitimacy and the trust of the public. The Trump administration has eroded that trust, and the George Floyd protests are a symptom of the lack of trust that the government will actually move against entrenched conservative interests, such as the police, no matter how egregious their actions are. The appearance of unfettered corruption, conflicts of interest, and complete immunity from legal consequences degrade the institutions necessary to a functioning society.
The administration, and the Republican Party, have been systematically tearing down checks and balances, while immunizing themselves from prosecution by tearing down the judicial system, and attempting to create a unitary executive branch via rulings by courts they have systematically packed. The guardrails of democratic norms by Republicans in the Senate have failed completely. Others are following, and when they do it becomes nearly impossible to put them back in place. If this administration is let off the hook, it essentially guarantees that future administrations will further break the system.
Ensuring that administrations are not exempt from the rule of law, including the president, should not be a partisan issue. When you leave the door open to kleptocracy and autocratic impulses of a supremely powerful executive branch, it can just as easily give us a Hugo Chavez as a Vladimir Putin or Victor Orban.
The danger of someone worse than Trump is real: the primary reason why this administration has not been even more effective at destroying any checks and balances has been the sheer incompetence of the administration itself. The next authoritarian-leaning administration will do so far more quickly and effectively. That is, as long as they’re certain that there isn’t an 8’ x 8’ room waiting for them if they get caught, and they’ll have to fight Paul Manafort for the bottom bunk when they get there.
Other countries watching the United States can clearly see what’s happening as well. If the administration escapes scrutiny, and it becomes apparent that the Biden administration is just the eye of the hurricane before another corrupt regime takes over again, who will want to work with us? The U.S. has already lost the trust of the world, and without taking criminal investigative measures to ensure this doesn’t happen again, it will be even more difficult to begin winning it back. Thus, if Biden becomes president, most of his foreign policy work will be contingent on rooting out and prosecuting the illegal acts of the previous administration.
Letting members of this administration who have committed real crimes walk will not heal the country. We let the Confederacy walk, and we’re still paying for it. Investigations should not be done out of animus, but to ensure that the law is applied equally and fairly. We cannot allow controlling the executive branch to become an infinite pile of “get out of jail free” cards. If we do not use our legal system as it was intended, we will be right back at this moment in a few years. A democratic administration has a duty to the republic to take the measures necessary to avoid this.
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