As we look forward to months of a hard-fought Democratic primary campaign accompanied by escalating authoritarianism from the president and his compromised party — including, crucially, attempts by Trump and his lackeys to undermine both the Democratic primary and subvert the 2020 election — it might feel premature to talk too much about what stance Democrats should take towards the legacy of corruption, crime, and treason they would inherit should they win back the White House. But this question is far more than an abstract intellectual exercise, since how Democrats answer it will shape the nature of the campaign and their prospects for victory. Beyond this, it will give form to an equally crucial struggle: how to govern in a way that rebuilds our collective faith in democracy while also working to disrupt, degrade, and destroy the Trumpist movement that has brought us so close to the brink of an American-style authoritarianism.
Trump’s post-acquittal behavior has demonstrated the centrality of undermining the impartial administration of justice to his authoritarian aims. Since the Senate vote, the president’s highest priority has been to seek to punish those whom he considers his enemies; he has fired witnesses who responded to subpoenas (Lt. Col. Alexander Vindman, sad-sack EU Ambassador Sondland), called for investigations of opponents, and supercharged efforts to protects his allies from ongoing legal actions (Roger Stone, Michael Flynn). Punishing enemies and protecting friends by abusing the law is deeply corrupt, as it turns the law into a tool of partisan power rather than an instrument of justice. For a strongman-type like Trump, though, using the law in this manner is simply common sense — if you can do this to your advantage and no one can stop you, it’s irresistible to try to exact vengeance and consolidate power.
Turning the Department of Justice into an enforcer of presidential vendettas and mercies will inevitably corrode any broad public sense that the legal system can be trusted. If government officials can drum up false charges against some of the most powerful people in America, then how would we ever know whether lesser cases didn’t involve similar corruption or bias? Why wouldn’t U.S. attorneys around the nation learn the lesson that to get ahead, the path lies in targeting local Democratic politicians on false charges, and deciding not to pursue allegations against Republican allies of the president?
So Trump’s attempts to make the Department of Justice into a partisan weapon are the tip of the spear in destroying the rule of law in our country. But it’s not just in terms of directly subverting the administration of justice, via self-serving decisions to investigate or prosecute; it also destroys the rule of law by undermining public faith that it can ever trust its government to administer justice fairly and impartially more generally. In a corrosive and depressing fashion, the logical conclusion most people would reach after a sustained period of such abuses is one sadly identical to that of the president: that the law is merely a tool that the powerful use to abuse their enemies and the less powerful.
Meanwhile, alongside this politicized attempt to hollow out the idea of who is guilty and who is innocent, there are countless pieces of evidence that the president and his cabinet have engaged in all manner of corrupt, illegal behavior, from the president’s endless grifting of taxpayers to the more mundane money-making of lesser lights like Rick Perry and Elaine Chao. This behavior of course intersects with the president’s efforts to corrupt justice in a crucial way, in that he and his cronies are able to break the law in plain sight without fear of a politicized Justice Department taking any legal action.
All the major Democratic presidential candidates appear committed to following the rule of law should they be elected; we would expect them not to use the Justice Department as a political weapon and to respect the idea that the law applies to all equally, and to preside over administrations that aim to act in a non-criminal manner. Yet a commitment to follow the rule of law is not the same as the need to restore the rule of law following the corruptions of the Trump administration. A strong case can be made that it will in fact not be possible to follow the rule of law without a proper accounting and undoing of the damage the Trump administration has inflicted on it. For example, if the Trump administration has corruptly instigated or subverted investigations, a Democratic administration could not simply pick up the threads and continue as before, since this would mean becoming complicit in and sustaining the very corruption they had pledged to end. Likewise, allowing Trump and his minions to evade consequences for their rampant criminality would perpetuate the current administration’s contempt for the law. Allowing crimes to go unpunished means that they would be repeated; for Republicans, and even Democrats, would have learned the lesson that any presidential crimes are permitted, since they will always be forgiven in the name of moving on.
Given all this, you will not be surprised when I say that it’s essential that a Democratic president act decisively both to clean up the Department of Justice and ensure that Trump administration crimes face proper scrutiny and punishment. You may be surprised, though, when I also say that in practice this will likely be much, much harder than it sounds in theory.
As a real-world reference, let’s start with the criticism Senator Elizabeth Warren has received in the last week for reiterating, in the context of Bill Barr’s interference in Justice Department investigations and sentencing decisions, that as president she would “propose an independent DOJ task force to investigate crimes by Trump administration officials.” Warren made this point in the course of identifying the president’s abuse of Justice Department investigations as an authoritarian threat that needs to be rolled back not just in the next administration, but in the here and now, via congressional action. The general critique of her position is that this sort of task force would resume the same illicit practices as the Trump administration, using the Department of Justice to wage war on partisan enemies.
Lawfare’s Susan Hennessy tweeted a brief but nuanced critique of Warren’s proposal, writing that “Presidential candidates should NOT be pledging to investigate Trump, or any political opponent or any other specific person, if elected. We need to restore norms of DOJ independence. This erodes them further.” Hennessy also, importantly, notes that it is acceptable for Warren to call on Congress to investigate Trump, suggesting that Democrats in Congress would be fine to do so in a Warren presidency as well; her concern is with abuse of the administration of justice by the executive branch. While agreeing with Warren’s anti-corruption focus in general, she sees Warren’s pledge of a specific investigation as a red flag, and suggests (in the funhouse way of Twitter, in response to a question from NPR’s “Wait Wait. . . Don’t Tell Me” Host Peter Sagal) an alternate approach for Warren to take:
I think the right answer is "I will appoint a qualified Attorney General who upholds the rule of law and the impartial administration of justice. I will trust his or her judgment regarding appropriate investigative and prosecutorial decisions. As president I would set enforcement priorities, including addressing political corruption and white collar crime. That said, it is inappropriate for any candidate to comment on individual investigations and shameful President Trump doesn't share this core commitment."
I agree 100% with Hennessy’s wish to avoid a politicized justice process, and have come around to thinking that her critique of Warren’s task force idea is warranted; yet the practical and political reality is that a Democratic president would play a decisive role in what approach to take to the Trump’s administration’s criminality, no matter the distance the new president tries to establish. If a president set political corruption as a priority, and the AG proceeded to undo Trump’s corrupt practices, would there be any doubt that this is what the president also wanted? Similarly, if a new president set political corruption as a priority, and the Justice Department proceeded to indict members of the Trump administration for their crimes, there would unavoidably be a sense that the president had set this course by his or her prioritization of political corruption.
Of course, I’m being a bit loose with my language when I say “there will inevitably be a sense” of this politicization. Who, after all, will be doing this sensing? On the one hand, millions of Americans who despise Trump would cheer such cleaning of house, inevitably seeing it as a sort of payback against Trump, no matter how justified the investigations or charges. Simultaneously, Republicans would waste no time claiming that any investigations or charges against Trump officials were politically motivated — after all, why not make lemonades out of lemons and argue that Democrats are now no better than Trump?
Re-establishing a government that enforces the law impartially in the name of justice for all Americans may be the single greatest challenge for a new administration. This encompasses everything from protecting our elections from foreign interference to making sure the president doesn’t use DOJ investigations to kneecap political rivals. But just as the option of simply turning the page on Trump administration lawlessness means to condone and perpetuate it, what might seem like the righteous option of righting Trump’s perversion of the law and punishing his criminality carries inevitable risks of appearing as corrupt as he was, even if this fictional bias is cheered by partisan Democrats and hypocritically hyped by the GOP.
In other words, even as the Democrats need to do the right thing for the country and undo Trump administration corruption, this very corruption has created a presumption of biased or politically motivated behavior that a Democratic president will not be able to entirely evade. There is no getting around the fact that widespread criminality on the part of Trump, supported by the congressional GOP, means that the Democrats face a fairly treacherous path forward. Indeed, I’ve come to believe that there is no good path forward, only less bad ones. Many Republicans and others will inevitably view a Democratic commitment to the rule of law as a naked partisan play, their capacity to believe the words of the other party undermined by how thoroughly Donald Trump has poisoned our collective assumptions about the motives of a president, and the vast capacity for abuse of power he has displayed. The irony is depressing: when following the rule of law leads to indictments of criminal members of the Trump administration, the Republicans will attempt to cast this very adherence to justice as corruption, even when they know better. Cleaning up corruption will itself be accused of being corrupt.
In light of this compromised terrain, it seems that in addition to foregrounding an unswerving commitment to the rule of law, the Democratic presidential candidate should publicly articulate the contradictions and dangers involved in cleaning up the mess Trump leaves behind, as a way of defusing some of the inevitable gaslighting by the GOP, and of signaling to Democrats that the order of the day is justice, not payback. He or she should clearly state why it’s important to undo the corruption and punish the criminality of the Trump administration, but also clearly acknowledge the dangers of this situation, and pledge a commitment to non-partisan justice. Even if this doesn’t stop Republican officials from bad faith accusations of bias, such transparency will help the public reach their own conclusions.
At the same time, both the new president and Democrats in Congress would do well to pair investigations and charges against members of the Trump administration with new laws that would help prevent such corruption in the future, such as around increased transparency on the part of the White House and cabinet members. Legislation that requires greater openness by the new administration would demonstrate that the Democrats are serious about preventing a recurrence of the abuses of the Trump administration, even if it constrains their own power. In other words, rhetoric and action must work toward a corruption-free future, which will help defuse accusations that everything is just a matter of partisan payback. Faced with the wreckage of the most corrupt administration in U.S. history, Democrats need to do everything they can to undo the damage without being contaminated by it.