CREW Draws a Roadmap for Presidential Accountability in the Post-Trump Era

by Nomad

The Lessons Trump Taught Us

The Trump era is finally over and the Biden era has begun. It is perhaps human nature not to want to look back over the previous four years. It was too horrible, too shameful, and too humiliating a period for America. We are exhausted and we need time to forget what happened.

  

And yet, it would be an enormous mistake not to review the failure to hold the executive branch accountable. It was, after all, not merely the criminality of one man, or one administration, or one party. It was a systemic failure of the entire oversight process.

 

For those four long years, the American people went from "Oh, he can't do that" to "How could he do that?" to "Won't somebody stop him?"

 

We- at least, some of us- have learned the hard way that our naive faith in the rule of law was misplaced, that the Constitution was not the all-powerful protector of the system. 

For a person like Trump, the Constitutional definition "high crimes and misdemeanors" was much too vague. The impeachment process, as we have seen, was too dependent on partisan politics. 

As Frank O. Bowman III , Professor at the University of Missouri School of Law, writes:

“High crimes and misdemeanors” is surely the most troublesome, misleading phrase in the U.S. Constitution. Taken at face value, the words seem to say that impeachable conduct is limited to “crimes”—offenses defined by criminal statutes and punishable in criminal courts... But this is not, in fact, what the Constitution requires. “High crimes and misdemeanors” is not, and has never been, limited to indictable criminality.

Is breaking one's oath to uphold and defend the Constitution from enemies foreign and domestic a high crime or a misdemeanor"? Obviously not in Trump's view or in the view of the Republican party. Presidents like Nixon and Reagan felt that the executive branch was above the law, and therefore, the whole idea of a "high crime" is moot. The Supreme Court has never been quite as forgiving as that. 

The argument goes way back. At the time the Constitution was being drawn up, the disgruntled Founding Father, George Mason, was skeptical about the vagueness of the term. He wanted a much broader definition and suggested the addition of the word “maladministration.” That old-fashioned word is described as "inefficient or dishonest administration; mismanagement." In the end, Mason compromised but then refused to sign the final draft. 

So where do we begin to reform the system?  And more importantly, how do we possibly ensure that such a catastrophe doesn't happen again?

The Thirteen Starting Points

As the non-profit 501 and nonpartisan watchdog organization, Citizens for Responsibility and Ethics in Washington (CREW) points out:

The executive branch has grown more powerful and less accountable than ever before. President Trump’s refusal to release his tax returns or divest from his business, and the challenges to expeditious enforcement of the Emoluments Clauses show that our democracy urgently needs more robust methods for holding the president accountable to the people.

The group has compiled a list of thirteen barriers to holding presidents accountable. These issues could form a roadmap for reform of the executive branch. (Click on the links for a thorough analysis of each issue.)

    1.     Non-disclosure of financial interests and tax returns

    2.    Failures to divest financial interests that create conflicts of interest

    3.    Inability to enforce the Emoluments Clauses

    4.    Corrupt attempts to influence federal law enforcement

    5.    Department of Justice Participation in the president’s personal legal cases

    6.    Nepotism in the White House

    7.    Security vulnerabilities of incoming officials

    8.    Weakness of the Department of Justice’s special counsel regulations

    9.    A sitting president’s immunity from prosecution under Department of Justice policy

    10.    Successful obstruction of criminal investigations

    11.    Abuses of the pardon power

    12.    Misuse of legal expense funds

    13.    Gift loopholes for inaugural committees and presidential libraries

Reform or Repeat

Of course, knowing what the problems are is simply not enough to bring about the kind of reform that's necessary to prevent another Trump scenario. 

We acknowledge that these changes alone are not sufficient; other branches must have the capability to act as a check, and the reforms described here alone will not ensure that.

Overhauling the system will, however, take ethical politicians in Congress who dedicated to a kind of government that inspires public confidence- not public shame. Perhaps, in our time, an era of extreme partisanship, that may be asking for too much. 

 

However, if we do not examine these points and consider reform, there may come a time in the near future when we find ourselves facing a scoundrel in the White House, a bit less clownish, a bit more devious, and a bit more convincing to a larger minority. 

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