If the November 3 general election turns out the way 51 percent of Americans (according to a recent Quinnipiac University poll) would prefer, Joseph Robinette Biden Junior will become America’s 46th president at noon on January 20, 2021.
And as Donald Trump boards a “white top” Marine helicopter (sans the “Marine One” call sign) to begin his life as a former president, many of his countrymen will be asking themselves one question: Who will be held accountable for four years of scandals, dysfunction, and often flagrant violations of law?
America has found her way back from dark places before. Twelve years ago, attendees at Barack Obama’s inauguration sang Bananarama’s “Na Na Hey Hey (Kiss Him Goodbye)" to George W Bush as he prepared to depart from Capitol Hill after a weary eight years of war, including systematic violations of human rights that some critics described as war crimes. Bush left office with only a 22 percent approval rating among Americans.
If Trump leaves office in January 2021, he, too, will do so under a cloud. But unlike the last Republican president, the list of those facing potential criminal charges includes Trump himself. Not only could a future attorney general conceivably charge an ex-President Donald Trump for any of the multiple instances of obstruction of justice found by former Special Counsel Robert Mueller, he could also find himself in the dock for financial crimes if New York County District Attorney Cyrus Vance finds anything untoward in the tax records he is seeking from Trump and the Trump family business empire.
Biden has already pledged to not follow in the footsteps of Gerald Ford by issuing his predecessor a blanket pardon, and has promised to do “whatever is determined by the attorney general” with respect to any investigation into Trump himself. He has also offered up “an ambitious proposal to ensure that our government works for the people” as evidence of his commitment to restoring trust in government and rebuilding guardrails that have all but eroded under Trump.
But good government advocates, legal experts, and some prominent Democrats say the broad range of alleged violations of law by Trump administration officials and allies, ranging from misuse of government resources for personal gain; to the abuse and mistreatment of persons — including minors — in immigration detention; to obstruction of justice and making false statements to Congress; means a Biden administration effort to simply “turn the page” on the Trump years would be a dangerous concession to lawlessness.
Remarkably, not a single Biden campaign official or adviser contacted by your intrepid correspondent would respond to questions about whether a Biden administration would undertake any effort to look back at the Trump years — either to merely document for posterity any violations of law, or to identify and prosecute administration officials and other government employees who committed illegal acts.
And while Biden’s forward-looking agenda of reforms has generally been well-received in Democratic circles, the lack of a similar plan to look back on the previous four years has set off alarm bells among those some Biden backers who are still smarting over Obama’s “let bygones be bygones” approach to Bush-era abuses.
“It took me a long time to stop being angry about people who committed torture in America’s name walking around free, but I understand why it was a tough call to make at the time,” said one prominent Democratic activist, who requested anonymity so they could speak candidly. “Not having a real, transparent investigation of the abuses that Trump and his cronies have committed would be even worse, because it would tell future presidents and their future appointees that it doesn’t matter how bad they let things get because the next president will just drop it.”
Another prominent Democrat, whose activism centers around immigration policy, suggested the only way for the country to truly put Trump’s “racist and inhumane” immigration enforcement actions behind it is to seek out each and every person involved — from Trump to rank-and-file ICE and Border Patrol agents — and bring them to justice.
“After World War Two, we made Germany go through de-Nazification. We need to put our entire government through ‘de-Trumpification’ and punish every single person who followed Stephen Miller’s illegal orders,” they said.
But Frederick Taylor, author of Exorcising Hitler: The Occupation and De-Nazification of Germany, cautioned that the effort to purge Germany of Nazi influences and bring human rights abusers to justice was one that was imposed on Germans from the outside by a military occupation. Even if a Biden-era Justice Department were to put some Trump administration officials on trial, he suggested that doing so with too heavy a hand could backfire by inspiring resentment among those asked to sit in judgment of their peers.
“That was really, really hard in postwar Germany because the Allies — even the Russians — wanted to involve some locals at some point to give it some legitimacy and give the Germans some sense of agency. But the trouble was, when you did that, a lot of them — even if they didn't necessarily sympathize with the politics of the people they were asked to stand in judgment of — tended to resent Allied dictation,” he explained.
Any process used to shed light on Trump-era abuses or punish lawbreakers “should not feel imposed, even if it's a convincing win for Biden and the Democrats control both houses of Congress,” he warned, especially given the potential for a Biden win to energize far-right extremist groups: “You’re going to have to be very careful with how you handle it. If the Democrats have a convincing win on all fronts in November, they will have the power to do these things. But the question is, how do you do it?”
“Even if you bring the evidence in, you do have to legitimize it,” he continued. “The general attitude among many Germans — not just fanatical Nazis, but many Germans — towards the international tribunal in Nuremberg was pretty cynical, ‘victors’ justice’ and all that.”
Taylor added that even in the event that there are no criminal prosecutions of those who may have committed abuses under Trump, there will still need to be a full airing of all the dirty laundry that America has accumulated during his presidency.
“You’ll have to talk about these things. Some people will not want to talk — they'll just want to yell — but talking is essential, and not necessarily in an absolutely vengeful way,” he said, adding that if Democrats end up controlling Congress in 2021, they may need to enact special legislation to waive many of the provisions in the Presidential Records Act that would allow Trump to block access to his presidential papers.
Democrats, he added, would be “crazy” to not be preparing for the possibility that Trump will attempt to destroy records on his way out of office.
While Taylor cautioned against employing an accountability process that could foment resentment or resistance from Trump’s supporters, George Washington University lecturer and ex-federal prosecutor Glenn Kirschner is already trying to thread that needle.
For some time now, Kirschner has been speaking and writing of the need for a “Trump Crimes Commission” to fully examine the conduct of the previous administration.
Such a commission, Kirschner said, would be a mashup of sorts which combines aspects of the de-Nazification process, and of South Africa’s post-apartheid Truth and Reconciliation Commission.
“It would be a uniquely American response to our uniquely American atrocity,” said Kirshner, who spent three decades prosecuting homicides and racketeering trials in the office of the United States Attorney for the District of Columbia.
Unlike Taylor, Kirschner said worrying about complaints that any attempt to hold Trump administration figures accountable will be political retribution or victor’s justice is a waste of time.
“The criticism will come, and it will be argued that anything that's done to address the crimes committed during the Trump years is somehow politically motivated revenge or retribution, and that’s absolute horses**t,” he said. “If crimes were going unaddressed because of political reasons, you can't possibly argue that if you address them in the future, honestly, ethically, and in a nonpartisan way, that somehow you're doing the wrong thing.”
Kirshner argued that the Biden administration and the next Congress should “stand up a truly independent, nonpartisan or bipartisan commission,” with members and staff drawn from across all three branches of government.
Such a commission, he said, should have broad investigatory powers along the lines of the old Office of Independent Counsel, which was established under the post-Watergate Ethics in Government Act but was allowed to expire after Congress failed to renew the provision in law authorizing it in the wake of Bill Clinton’s impeachment trial.
Former Michigan Representative Bob Carr, who was elected to Congress in 1974 as part of a post-Watergate landslide, agreed that there needs to be a full accounting of the Trump administration’s actions, if not for justice, then for the benefit of history.
“The new administration and the new Congress really should take it very seriously to do an audit of the last four years,” he said. “Of course, the Republicans will scream and holler that this is just political retribution and blah, blah, blah, but if it's done by the right types of leaders in the Congress and the right kind of people inside the executive branch… in a methodical, professional, relatively low-key kind of way, it could provide … historians … with important facts.”
And while Kirshner would ideally have such an entity undertake a top-to-bottom review of agencies like Immigration and Customs enforcement to find out to what degree rank-and-file employees have been complicit in carrying out unlawful policies, he recognized that civil service laws and the limits of political capital could make that too heavy a lift.
“When it comes to civil servants, how do you go through the agencies that have potentially been complicit in Trump's crimes… and try to figure out who actively did something that was criminal or that was that punishable by losing your job, versus who just kept their head down and just kept trying to do the honest work of government?” he asked. “I think in a perfect world, we tackle that, but in our world, I think we can probably only hope to hold the most obviously criminal government employees, cabinet members and administration officials accountable for the sort of big-ticket violations of law by investigating fully and figuring out if we have enough evidence to charge them.”
Kirshner agreed with Taylor’s assessment that the usual secrecy afforded to former presidents’ records should be off-limits to Trump and suggested that legislation is needed to open things up.
“I would argue that we need to pass legislation that amends whatever it is that has that has built secrecy into the system, because we used to build secrecy into the system for the right reasons, whether that's grand jury secrecy or protecting Presidential Records, and now we see how that's been taken advantage of, and we need to fix it,” he said. “I think where we are as a country, I don't care about the chaos that might result by opening up the presidential archives on matters that will not impact national security so that the public can see what the heck is going on.”
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