I agree with the essence of the report: However we do so, and whatever the downsides (e.g., further polarization), the risks of not undertaking a review and accounting are too high. (“Implicated officials often maintain or regain positions of power and influence, repeating past offenses; a sense of impunity takes hold that encourages others to follow suit; institutional vulnerabilities that permitted or facilitated the wrongdoings compound; and the rule of law and public trust therein erodes,” the report says.) Moreover:
Unearthing a full and truthful record of wrongdoing, rebuilding robust social norms governing acceptable political behavior, and constructing a shared narrative may be just as important as enforcing consequences for transgressions. Thus, mechanisms ranging from commissions of inquiry to public apologies and professional sanctioning of dangerous behavior should be considered as part of broader accountability schemes working towards non-recurrence. These mechanisms should be viewed as self-reinforcing rather than competing.
In other words, a criminal investigation into possible lawbreaking by a member of the Justice Department does not mean a criminal prosecution is appropriate for other misconduct that amounts to norm-breaking, failure to uphold professional obligations and/or everyday lying. We also should not forget that civil society has a role to play: In some cases, for example, when recognizable harm has been done to an individual or group of individuals, civil action may help make victims whole.
The bottom line, however, is that a complete record of the past four years (not necessarily undertaken by the same body) is a precondition to determine what criminal prosecutions, civil actions, professional discipline and employment decisions should follow. Let me suggest some guidelines to help us traverse accountability.
First, private institutions (publications, think tanks, universities, bar associations, businesses) should begin their own internal reviews without delay. A think tank may find its scholars succumbed to partisan cheerleading and lapsed into intellectual dishonesty; the result might be everything from severing ties with such individuals to setting up a peer review system to maintain scholarly standards to a public apology. State bar associations should undertake a comprehensive review of the conduct of scores of Justice Department and private attorneys to determine if professional standards were violated. They might begin with the roster of attorneys who brought frivolous claims seeking to undermine our democracy and/or making false representations to courts and/or the public. The result might be anything from a new professional standard regarding democratic elections to disbarment.
Publications that cheered for and rationalized anti-democratic conduct should reflect on their own output and consider a public mea culpa. Mainstream publications should review their own coverage over the past four years and produce some “lessons learned” from the experience of covering a congenitally dishonest administration and a party that no longer believes in objective truth.
Second, as I have argued, the Justice Department at a bare minimum should investigate its own conduct to determine whether any DOJ lawyer broke laws, violated department policy or contravened professional responsibilities. Internal discipline up to and including termination of employment must be on the table.
A full accounting is especially critical to formulating reforms. Jack Goldsmith and Bob Bauer suggest:
Reforms should include sharpening Justice Department regulations against political bias in law enforcement; extending to the attorney general the department norms against interfering in investigations; clarifying the rules for investigations of presidents and presidential campaigns to protect against the political impact of investigative steps or announcements, like actions taken close to an election; and changing the regulations so that a special counsel possesses enhanced independence from the attorney general and can report to Congress and [the] American people the facts of any credible allegations of criminal conduct against a president or senior executive branch official.
That’s a good start, but until a full review of the conduct of the Justice Department over four years is completed, we will not know the full scope of the problem or the appropriate fixes.
Third, private and public employers on a case-by-case basis will need to go through the records of former administration officials seeking employment or currently employed to determine what if any wrongdoing they were involved in. Has this person behaved in ways that would reflect poorly on the integrity of the organization considering him or her for employment? Did the person fail to come forward or quit when wrongdoing was occurring in their midst?
Fourth, the public should hold all executive branch officials and lawmakers who enabled impeachable, anti-democratic, norm-breaking or illegal conduct responsible by refusing to reelect them to any position of public trust. Good-government groups should identify before every election any of the 126 House members who signed onto a brief seeking to overthrow the election. Bar associations should make clear that the public at large knows which public officials have been subject to discipline.
Fifth, we need a series of inspectors general to review policy debacles within government departments and agencies such as the child separation horror; the abusive use of unmarked law enforcement and excessive use of force in responding to the Black Lives Matter protests; and the mishandling of the covid-19 pandemic to make recommendations for reforms and to identify employee wrongdoing.
Sixth, considering the unprecedented violations of laws, norms and democratic values, Congress needs to consider its own members’ conduct (entailing ethics sanctions and recommendations for new rules for Congress) and legislation to implement required reforms (e.g., enforcement of subpoena power). On top of specific fixes, Congress needs to revisit overarching issues such as qualified immunity for public officials and a new ethics code for all federal employees with enforceable sanctions.
The myriad ways in which accountability can be pursued and the array of people whose actions should be reviewed seems overwhelming. That is no reason to avoid acting. The huge undertaking ahead exists because the actions of so many over the past four years were so disgraceful. It is up to state and federal prosecutors as well as all branches of government and civil society to undertake their own accountability projects so as to safeguard our democracy and public square. And it is up to all Americans to decide how to treat wrongdoers next time they seek office or show up looking for a job.