Late last year, I wrote about how the incoming administration needs to address three factors in order to maximize the possibility of avoiding a second wave of authoritarianism in the soon-to-be post-Trump world. I have already considered how important it will be for Biden to be adept at crisis management and attentive to institutional repair. The third critical factor is accountability:
When the Biden justice department begins turning over rocks we may finally learn the extent of the criminal activity perpetrated by the outgoing administration against the people of the United States. What we already know about illegalities large and small — from disregard of emoluments and the Hatch Act to the vast criminal activity detailed in the Mueller report — is enough to justify establishing a Presidential Crimes Commission, although Biden has telegraphed his desire to downplay investigations of Trump and his cronies and will leave the matter in the hands of his Attorney General. This is entirely appropriate — the president should never be in the business of prosecuting his political opponents — as long as investigations are not sidestepped or whitewashed. Accountability is a necessary step in the healing process and essential to elevating the cost of enabling Trump or a future demagogue. It will also be seen as vengeance by the millions already primed to believe the 2020 election was stolen from them, so it has to be managed with care.
Since I wrote this passage, Georgia Secretary of State Brad Raffensperger, a Republican, has overturned a sizable rock in the form of the audio tape released this past weekend featuring Trump’s attempt to strong-arm Raffensperger to “find 11,780 votes” in order to steal Georgia’s electors. That Trump sounds like a crime boss should be unsurprising to anyone who’s been paying attention. With Trump, the rot is as deep as the anti-democratic impulse is strong.
Unlike crisis management and institutional repair, which require executive skill and some degree of support from the political class, accountability can be achieved with a competent attorney general and a revitalized Justice Department, along with a big assist from prosecutors in the state and city of New York (and now, perhaps Fulton County, Georgia). But the politics of investigating the outgoing administration needs to be handled delicately. Tens of millions stand to take delight in the demise of Trump and his coterie, and tens of millions are primed to see any attempt to investigate or prosecute the soon-to-be ex-president as retaliation by his political enemies. If the process of seeking accountability is guided by retribution it will plunge the country further into chaos. But avoiding the effort in an appeal for unity only maintains the conditions that made Trump possible, inviting another round of authoritarianism in the not too distant future.
For this reason, it is imperative that the search for accountability moves forward, guided by the twin objectives of transparency and justice. Transparency can be accomplished through investigations that are conducted in public view. The success of the effort should be measured in our ability to gauge the full breadth of illegality and corruption committed by Trump, his associates, and members of the Republican Party both in and out of government. Justice can be achieved by prosecuting to the fullest extent possible those who broke the law. Pardons designed to protect co-conspirators, including potentially Trump himself, should be challenged. Violations of state law, from which the president, his family and his enablers cannot be protected, should be pursued vigorously in the relevant jurisdictions.
These steps would telegraph the resolve of those who believe in the rule of law to begin repairing a badly damaged political system and could serve as a down payment on restoring faith in the political process. They would represent a dramatic break with what has been done in the past. For nearly a half century, excutive-level crimes have been forgiven and sanitized by those with an interest in moving on — which, as history tells us, was just about everyone. Gerald Ford pardoned Richard Nixon because he felt the country couldn’t handle the prosecution of a former president, and because he didn’t want Watergate hanging over his administration. In so doing he robbed the country of a full and transparent airing of Nixon’s crimes and the cathartic exercise of adjudicating those crimes in court. We had already been denied the constitutional remedy of impeachment and removal through Nixon’s resignation. Letting the judicial system have the final word would have provided closure on an episode that tore up the country.
Instead, sidestepping the issue elevated the president above the law at the same time that elected leaders were congratulating themselves for how well the system worked. This set the table for Reagan to avoid responsibility for the Iran-Contra affair, for George H. W. Bush to pardon his accomplices, and for George W. Bush’s minions to sidestep accountability for launching a war on questionable pretenses. We are now coming to the end of an administration whose malfeasance is so blatant that to move on without investigating it would be to condone it and give permission to a future president to pick up where Trump is leaving off. Like new presidents before him, Biden will want to move forward so as not to be defined by Donald Trump, but it is long past time to recognize that you cannot build a sturdy future on a rotten foundation. We have reached this harrowing moment precisely because high-level criminal behavior has been overlooked to protect the powerful at the expense of democracy.
If a transparent and just process of investigation and prosecution might begin to rebuild faith in the political system, punishing the purveyors of crime will recalibrate the costs of corruption. As long as anyone who misuses power to commit violence against their constitutional oath can expect to be forgiven after the fact, what will hold them in check? Worse still, if they are more likely to land on K Street or cable news than in prison, then abuse of power becomes a normal part of how the system works. There will of course always be honest actors amidst the grifters and crooks, but if the Trump administration has taught us anything, it’s that we can’t rely on people of good faith to prevent people of bad faith from pursuing self-interest at all costs.
This country is strong enough to see a former president investigated, stand trial, mount a defense and — if convicted — fined or imprisoned according to the sentencing guidelines that would apply to anyone else. Whether to do this should not be in question. Investigating the corruption of the outgoing administration is essential to building back the federal government. Prosecuting those who are responsible, in the words of the incoming administration, is to build back better.