On Friday, the senator from Massachusetts announced that if she’s elected president, she wants to open herself and her successors to the possibility of prosecution. Warren said:
Congress should make it clear that Presidents can be indicted for criminal activity, including obstruction of justice. And when I’m President, I’ll appoint Justice Department officials who will reverse flawed policies so no President is shielded from criminal accountability.
If Warren were to succeed in getting Justice Department policy changed, it’s the kind of thing that might not make any difference for a long time — it’s not as though the department is suddenly going to be eager to indict the president, particularly when it is run by his appointees.
Nevertheless, the fact that this is something a potential future president is even suggesting shows how Trump has transformed our ideas about what kind of new constraints we may need to impose on the person in the Oval Office — including new laws.
Trump has shown that norms are simply not enough. It was once normal for presidents to show transparency by releasing his tax returns, to divest himself of any business interests and to generally act with great care to assure the public that he wasn’t milking the office for personal gain.
But if Trump understands anything, it’s that norms only dictate your behavior if you abide by them. So he kept his tax returns secret and, while he did pass operational control of his businesses to his sons, he continues to reap the profits himself. He has also found multiple other ways to profit from the presidency itself.
While it is possible that once Trump leaves office the old norm-based order can be restored, we might also decide — as Warren suggests — that we need new laws to keep some future Trump-like president in check. Here are some areas that could be covered:
- A law allowing the president to be prosecuted for crimes committed before or during their time in office.
- A law requiring the president to put assets in a blind trust and limiting the kinds of outside income they can receive while in office.
- A law requiring the president to make public their tax returns for years before they were president and while they are in office.
- A law barring the president from appointing members of his family to White House positions, which we might call Jared’s Law. (There already was such a law, but Trump’s Justice Department proclaimed that it didn’t apply to the White House so Jared Kushner and Ivanka Trump could work there.)
- A law that allows for more congressional oversight of the pardon power, if a president exercises it in what appears to be a corrupt way.
That’s just a few examples; if we were writing an Omnibus Post-Trump Presidential Reform Act, we could probably come up with others.
Some ideas such as those above are currently being weighed by Congress. House Democrats have passed legislation requiring future major-party presidential candidates to release 10 years of tax returns. Rep. Adam B. Schiff (D-Calif.) has introduced a bill that would require that Congress be informed of investigative evidence against someone who has been pardoned by the president in connection with an investigation into him or his family members.
Warren herself has introduced a Senate bill that would require the president, vice president and close family members to divest themselves of all financial interests that create conflicts of interest and place them in a blind trust.
None of these are going anywhere because of the Republican-controlled Senate. But the point is that, even if they are hopeless right now, it’s not too early to start talking about institutional reforms in response to Trump’s corruption. Hopefully, we’ll be hearing more from the Democratic candidates.
To be clear, the possibility of Trump facing prosecution is remote. But it’s something presidential hopefuls will have to address as part of the broader discussion of what this profoundly corrupt president requires of us going forward.
Back in February, Warren did just that. If elected, Warren said, there will be “no pardons or commutations for any other person implicated as part of a federal criminal investigation into illegal activity related to Donald Trump. And no pardon or commutation for Donald Trump himself.”
All this is another way, then, that Warren is setting the bar high for the other candidates.