American Democracy Did Not Survive Intact
The next demagogue to sit in the Oval Office can look to the Trump administration as a foundation on which to build.
|Paul Miller||Feb 10||59||41|
The Trump administration will be remembered chiefly for its impact on the institutions of American democracy, a legacy that started coming into focus even before the months-long campaign by the president, his legal team, and loyal aides to overturn the results of the 2020 election.
That has a prompted a debate over just how America’s institutions fared. Does the peaceful transfer of power mean they survived, or did that merely paper over significant damage? Last month, Andy Smarick of the Manhattan Institute argued here in The Dispatch that the institutions of American democracy proved up to the challenge. Reading his piece, I could hear the proverbial narrator speaking in my head: “No, they didn’t.”
The institutions of American democracy are weaker than they were four years ago. The Trump administration, and the lackluster response to its abuses, have set bad precedents, allowed irresponsible and criminal conduct to go unpunished, and proved that crucial accountability mechanisms in the Constitution are hollow and toothless.
The next demagogue to sit in the Oval Office can look to the Trump administration, not as a cautionary tale, but a foundation on which to build. Recognizing this fact is crucial to setting an agenda of reform. Congress must respond to the Trump era with an Executive Accountability Act to prevent the next demagogue from doing even more serious damage to American democracy.
Smarick argues that “nearly all of our leaders still think and talk in terms of our established institutions and their roles,” citing the Mueller investigation, the 25th Amendment, and the impeachment process as examples of ways our elites used the language of law and responsibility and sought to pursue accountability through established processes.
But, as the original Sophists proved, mere language can be twisted to any ends. We have the word “Orwellian” to describe the practice of using a word to mean its opposite: “War is Peace. Freedom is Slavery. Ignorance is Strength.” Slavery, Jim Crow, and segregation were entirely legal in their day. That they followed the form and appearance of lawfulness said nothing at all about whether they helped or hurt the underlying foundations of American democracy.
For example, when Attorney General Bill Barr said “Mueller investigation” he did not mean “accountability,” he meant “evasion thereof.” That Barr spoke the language of “investigation” does not mean he helped shore up the institutions of American democracy; it means he knew, through his deceptive and misleading cover memo to the Mueller report, how to manipulate the rhetoric of accountability to undermine efforts to hold the president accountable, a crucial norm of constitutionalism.
Similarly, Trump officials spent four years talking about the 25th Amendment and never invoked it, despite Trump’s behavior being the strongest case for impairment since the amendment was ratified in 1967. Their talk about the 25th was not a case of American democracy working; it was a case of holding meetings and talking about process as a stalling tactic to run out the clock.
The same holds for the impeachment process. Trump almost certainly should have been impeached and removed for obstruction of justice on the basis of the Mueller report; impeached and removed for abuse of power over the Ukraine scandal; and impeached and convicted again for his role in undermining the electoral process and inciting the January 6 Capitol riot.
That he was never impeached on the first count, acquitted of the second, and almost certainly will be acquitted of the third means that the impeachment mechanism is utterly meaningless. Trump faced no meaningful consequence for his criminality. Quite simply, he got away with it. If impeachment failed to constrain some of the most blatantly unlawful conduct by a president in American history (after Nixon), it is little more than words on paper.
The consequence for American democracy is profoundly dangerous. Future presidents will know that impeachment has no power to hold them accountable so long as they hold a majority in at least one chamber of Congress. Many future presidents will avoid impeachment simply out of a sense of shame, but it is precisely with regard to shameless presidents that the legal mechanisms of the Constitution must have teeth.
There were times during the Trump era that officials made the tough calls they had to. Jeff Sessions earned the president’s ire for recusing himself from the investigation into Russian influence on the 2016 election. James Mattis resigned over President Trump’s decision to withdraw American troops from Syria.
But all too often, some decision makers plainly made the wrong decisions—including Trump himself, of course, and Barr, but also including scores of Republican representatives and senators who obstructed efforts to investigate the president and who voted against impeachment and conviction.
Time and again throughout the Trump presidency, decisionmakers faced opportunity after opportunity to investigate, check, delay, prosecute, or remove the president. Time and again, enough of them chose not to. Their refusal to do so enabled Trump to take the next step, and then the next, until a violent mob stormed the floor of the United States Congress.
It’s true that the mob did not stop Congress from certifying Biden’s election and Biden was duly sworn in. But to view that as proof of the resilience of American democracy mistakes Trump’s incompetence for the government’s institutional strength. Just because Trump failed does not mean he might not have succeeded. Looking at the evidence of how many willingly collaborated with him—and how many continue to volunteer to excuse his behavior, give him cover, and how many senators will undoubtedly vote to acquit this month—it seems extraordinary that Trump did not come closer to his goal.
Trump leaves in his wake a litter of wrecked norms, weakened institutions, and constitutional processes that he proved feckless. It is not just the impeachment process, the 25th Amendment, and the independent investigatory power of the Justice Department. We should add at least two more: the Emoluments Clause and the pardon power.
The Emoluments Clause of the Constitution prohibits federal officials from receiving gifts from foreign governments. The clause had never been tested in federal court. Trump’s international business dealings—especially his solicitation of foreign governments to do business at his hotels, resorts, and golf clubs around the world and his acceptance of Chinese trademarks—led to several lawsuits against him under the theory that they constituted emoluments, or gifts, from foreign governments.
After four years of litigation, the Supreme Court dismissed the cases last month because Trump is no longer in office, leaving the clause untouched, untested, and irrelevant. The lesson for future presidents: They can ignore the Emoluments Clause and leverage their public position to solicit foreign business for personal profit for as long as they can stall in court.
Similarly, the pardon power is, in the Constitution, unlimited. Past presidents have abused the power to issue last-minute pardons for donors, friends, and associates in ways that almost certainly contravene the Founders’ intent. Trump went further than any, dangling pardons in front of his associates during the course of investigations in a transparent offer of clemency for their silence—essentially a form of witness tampering. Further, Trump issued pardons for his associates convicted of criminal activity directly related to his campaign and his administration, and for incidents for which Trump himself is still under investigation or is likely to face investigation now that he has left office. The pardon power has become a legalized pathway of official corruption.
Is it hopeless? No, but it is difficult. When norms collapse, laws must step in. Congress must act to shore up the laws that are supposed to rein in the executive. They did so in the aftermath of Watergate and a series of scandals surrounding federal law enforcement and the intelligence agencies in the 1970s. It is time for another round of reform. I suggested a year ago that Congress should pass an Executive Accountability Act (EAA) to prevent future presidents from exploiting or worsening Trump’s abuses of the Constitution. I now think the act should be even broader than what I first proposed.
The EAA should plug the gaps Trump exploited to evade financial accountability by mandating that presidents disclose tax returns, divest from international business interests, and refrain from conducting any international commerce in which they are personally invested. Trump promised to do all three and did the opposite.
The Act should explicitly subordinate the president to the rule of law. It should not have to be stated, but Trump has made it necessary to state in law that abuse of power is a prosecutable crime under federal law; to establish in law that presidents can be indicted and prosecuted for criminal conduct while in office (overturning the Justice Department’s current legal guidance); and to affirm Congress’ power of subpoena (which Trump resisted) and restate that refusal to comply with congressional subpoenas is a federal crime.
The act should define the impeachment threshold of “high crimes and misdemeanors” to include any state, local, or federal crime; violation of the presidential oath of office; abuse of power; violation of the Constitution; violation of the separation of powers; any attempt to do any of these things; and any conduct demonstrably unfit for and unbecoming of the office.
One of the articles of impeachment against President Andrew Johnson in 1868 was that he “did attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States,” that such language was “indecent and unbecoming in the Chief Magistrate of the United States,” such that Johnson had “brought the high office of the President of the United States into contempt, ridicule and disgrace.” He was impeached for threatening Congress and acting like a dictator and a bully. This is a standard of impeachment I can get behind. Nothing less will instill fear into future demagogues.
The EAA should draw boundaries around the pardon power by prohibiting presidents from pardoning themselves or their immediate families and requiring outside review for pardons of any executive appointee or campaign official. Finally, the act should also define boundaries circumscribing “executive privilege” and classification authority and curtail a president’s power to declare a state of emergency.
Critics may claim that some of these provisions would be unconstitutional, especially reform of the pardon power. I agree—but, much like the War Powers Act, merely passing the law makes a statement of congressional intent and will force presidents to either comply or expend energy fighting a battle. No president has ever accepted the constitutionality of the War Powers Act (because it infringes on the president’s authority as commander-in-chief), yet they have almost always obeyed it anyway as the path of least resistance.
The EAA, similarly, draws lines in the sand. If a president insists he has the constitutional right to pardon criminal campaign workers and family members, much less himself, he should have to prove it; the presumption should be against him.
Political scientists and historians have been warning about the growth of the imperial presidency for a century. With the brief exception of the post-Watergate reforms, Congress has never done anything about it. There are good reasons to have an energetic executive, and most modern presidents have refrained from abusing their power most of the time. But “most” is not good enough. There will almost certainly be another demagogue to run for president again in the future, possibly the near future. The Trump presidency makes clear that the time is ripe for another round of reform—because the fate of American democracy may depend on it.
Paul D. Miller is a professor of the practice of international affairs at Georgetown University, a senior fellow with the Atlantic Council, and a research fellow with the Ethics and Religious Liberty Commission.