Outlook

The reckoning

The country can’t recover from Trump’s presidency unless he’s held accountable
Nicolás Ortega for The Washington Post
By

Some Americans entertain a fantasy that goes like this: President Trump is voted out of office, finally faces justice for his serial misconduct and shuffles off to prison. A wearier, probably larger population looks forward to scrubbing the nation’s memory of these past four years and returning to pre-Trump life. A third sizable group shows unwavering loyalty to Trump.

Sam Tanenhaus is writing a biography of William F. Buckley Jr. He is a former editor of the New York Times Book Review.

One lesson of American history is that the country’s worst injuries are those we’ve caused ourselves. This history is not uplifting, but it is edifying, and it haunts. Failing to perform the necessary diagnostic surgery after a time of collective wrongdoing has costs. The steepest is this: Subsequent generations inherit a weakened democracy. Today it is imperative to confront the facts of the Trump era. We elected as president a homegrown insurrectionist. He rose to the highest position in our democracy and damaged it. Even now, he continues to assault our laws and institutions, our independent judiciary, our national security, our health, and our constitutional system of checks and balances. It’s unimaginable, ludicrous even, to contemplate doing nothing about Donald Trump.

No single course for a post-Trump reckoning will satisfy, let alone reconcile, the country’s divergent constituencies. And some damage can’t easily be undone — harm to America’s standing in the world, for example, and the fatally negligent response to the coronavirus pandemic. But in the search for accountability there are middle-path options that fall between prosecuting this singular president and prosecuting his broader legacy. One is to begin with a problem that Americans across the ideological spectrum agree needs fixing: our elections.

Elections are the place to start because so much of Trump’s misconduct relates to them. Special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 election resulted in three dozen indictments or guilty pleas and five prison sentences, all related to Trump campaign actions during that election and afterward, when the president and others tried to cover up what they had done. Trump’s former campaign chairman, Paul Manafort, and his longtime lawyer, Michael Cohen, have both done time. The Senate Intelligence Committee — led by Republicans — produced a nearly 1,000-page report detailing the Trump team’s misdeeds, most pertaining to the 2016 election. Prosecutors in New York, meanwhile, are digging further into Trump’s payment of hush money to a porn star ahead of the vote. And of course, in his impeachment, Trump was charged with misusing his office to try to get help from Ukraine in his reelection campaign — in violation of election law and of the framers’ fear that a president might, in James Madison’s words, “betray his trust to foreign powers.”

Former vice president Joe Biden speaks to reporters before boarding his presidential campaign plane in Erie, Pa., last Saturday. (Demetrius Freeman/The Washington Post)

In at least one thing Trump has been proved right. Joe Biden is a strong opponent. If he is elected (increasingly likely), and if Democrats hold on to their majority in the House (it seems probable) and achieve one in the Senate (distinctly possible), they will be in a position to mount the kind of full-scale investigation they have been kept from doing while Trump is president.

But will the next administration hold the Trump crew truly accountable for past crimes, such as those uncovered by Mueller, the House impeachment committees and the Senate, to say nothing of the Trump family’s financial dealings? Should it? Yes, some will say, because of Trump’s long trail of malfeasance and mis-governance, which also involves top administration figures such as Attorney General William Barr. But the price of such an inquiry would be considerable. It could rebound against Democrats and undermine public confidence in their fairness and sense of proportion.

We are a fiercely divided country. As the historian Garry Wills remarked to me recently, the true crisis of our moment consists “of Trump showing us not about Trump but about us.” Republicans continue to support Trump as faithfully as any president in modern memory. It is true that he lost the popular vote to Hillary Clinton in 2016, but he won 30 states. No matter the result in November, the tribal feelings that now define American politics will not change. They might intensify.

This is partly an outgrowth of Trump’s approach to the presidency — his unapologetic conception of the office as explicitly serving him and those on his side, even as he wages war against those who oppose or even question him. The formula, as Jonathan Chait wrote in New York magazine, is blunt and direct: “If Trump’s opponents are doing something, it’s a crime; if Trump and his allies are doing it, it isn’t.”

The president’s supporters have a grievance of their own. They can say that Trump’s enemies tried to delegitimize him from the moment he took office. His detractors spoke early and excitedly about impeachment, as though the removal of a president was sport. This was why cooler heads, like Speaker Nancy Pelosi, urged caution after Democrats regained a majority in the House.

With Ukraine, everything changed. The facts were clear. Trump’s plea to the Ukrainian president that he “do us a favor” by announcing that he would investigate Biden was a textbook case of abuse of power. It hardly mattered. Republicans mounted a counteroffensive, echoing Trump’s cry of “witch hunt.” The rest was an elaborate performance in which the only verdict that seemed to matter was public opinion. Yet the most significant poll showed that two-thirds of Americans, regardless of the outcome, would not change their minds.

Attacks on Trump, no matter how justified, have dependably aroused his base. There is no reason to think his post-presidency will be different. What’s to stop Citizen Trump from continuing to operate at the margins of the law, but without the cover of the White House and in the knowledge that there would be a reluctance to prosecute a former president? A fresh investigation, broadcast over the “lying” media, could play right into Trump’s program of self-glorification.

And yet, America is not just a political carnival with gladiators in the arena and spectators in the stands. It is also a democratic republic — a nation of laws, procedures, history and tradition. A good, or rather ghastly, example of history failing to hold its chief actors accountable is the first president to be impeached, Andrew Johnson, in 1868. For many years schoolchildren were taught, with the aid of the book “Profiles in Courage” by John F. Kennedy, that Johnson’s escape from removal was an act of high statesmanship. Supposedly Sen. Edmund Ross of Kansas, a Republican who went against his party and voted to acquit, “may well have preserved for ourselves and posterity constitutional government in the United States.” The real villains, in Kennedy’s view (shared by many at the time), were the “Radical Republicans,” who arrogantly treated the defeated Confederate states as “conquered provinces” and wanted to “crush their despised foe” and voted to convict.

President Trump departs the White House on Sept. 26 after nominating Judge Amy Coney Barrett to the Supreme Court. (Jabin Botsford/The Washington Post)

Today the episode is judged very differently. Johnson, most agree, was one of the worst presidents in history and a danger to the republic. Taking office after the assassination of Abraham Lincoln, he flagrantly violated the principles of post-Civil War Reconstruction. He sided with “all-white Southern state governments full of ex-Confederates, stood by when they enacted ‘black codes’ that oppressed ex-slaves, and took no action when racist mobs began to murder black Southerners,” according to a history in The Washington Post. Johnson’s removal would have sent a powerful message about the nation’s new, post-slavery course; his acquittal instead reinforced pro-Confederate sympathies, which have lingered for generations.

So, too, with the case of the next president to face impeachment, Richard Nixon. He resigned in 1974 when it became clear that he faced removal for his Watergate crimes. His successor, Gerald Ford, pardoned him. For years, the thinking was that Ford’s action was statesmanlike, and the nation gratefully heard his soothing assurances that “our long national nightmare is over.” But the pardon helped plant the seeds of a counter-history of Watergate, promulgated by Nixon and his defenders, that Nixon was not the perpetrator but the victim, hounded by the liberal media, and that the investigations and impeachment were an example of “the criminalization of politics.”

What happened afterward may suggest a sensible approach to holding Trump accountable. In 1975, after the New York Times published a sensational report by Seymour Hersh under the headline “Huge C.I.A. operation reported in U.S. against antiwar forces, other dissidents in Nixon years,” the Senate organized a committee to examine the long history of Cold War intelligence. The chairman was Sen. Frank Church of Idaho. Respected legislators from both parties, giants of the period, also were on the panel. Their inquest looked hard at the Nixon administration but also pressed further and turned up patterns of wrongdoing by three predecessors, Presidents Dwight Eisenhower, Kennedy and Lyndon Johnson. Not everyone was happy with the result. The intelligence community felt under siege. But no one could accuse the committee of being partisan.

Here is a possible road map, then, for a public accounting of the Trump years. Instead of mounting an investigation of all his excesses and corruptions, the Biden administration could reach out to Trump’s supporters with a statement acknowledging their concerns, and Trump’s, that our elections are “rigged.” Why not take him at his word? To some extent, many are — in both parties. Each has assembled teams of lawyers and operatives for state-by-state legal battles, in the expectation that if Trump loses, he will challenge the results.

At that point, rightly or wrongly, a substantial portion of the country will question the validity of our elections. This has happened before, in 2000. Biden, as president, might address these concerns, respectfully announcing that he will set up an Election Commission, a formal investigation on the scale of the Warren Commission, which tried to uncover the facts of the Kennedy assassination, or the commission formed after the terrorist attacks of Sept. 11, 2001.

A more immediate example is the panel convened after the 2000 election. Chaired by former presidents Ford and Jimmy Carter, it presented recommendations. One was that there be a ceiling of 2 percent on the share of votes thrown out because of errors. Another was to have a federal agency create national standards for voting machines. A third was to restore voting rights in all 50 states to felons who had served their sentences. President George W. Bush supported the “key principles” stated by the panel and urged Congress to act on them. But the operative word was “recommendations.” The report did not say the government should require these changes. And so almost 20 years later, the defects remain.

But the circumstances are different now; the crisis has grown. Trump has sown doubts about our elections for the whole of his presidency. As soon as he took office, he declared that the 2016 election was “rigged” because the popular vote had gone against him. He organized a “commission” of his own on voter fraud, with Vice President Pence in charge. It quietly disbanded eight months later, having met a total of two times and without filing a report. The material it did produce was “glaringly empty,” in the words of one member. A commission set up by Biden could take up the work of Trump’s panel, only push much further.

And this is where the Church Committee could be a good model. Just as it pursued the trail of intelligence wrongdoing back to the early years of the Cold War, so Biden’s blue-ribbon panel would start with the 2000 election and the recommendations made afterward, this time pointing out what was lost because those recommendations were not adopted. From this premise, the commission could range widely and hear testimony on many important matters — for instance, efforts to suppress African American and Hispanic votes in battleground states. Every Republican who has affirmed or suggested that the 2020 elections are rigged, beginning with Trump himself, would be given a chance to testify with immunity and in a closed session, their words recorded. The findings would be released with ample transcripts.

Such a proceeding will be vulnerable to accusations of bias. But the facts would be on the record, and perhaps we would learn more about how democracy works, and doesn’t work, and what we can do to repair it.

Michael Cohen, President Trump's former lawyer, at the Capitol on March 6, 2019, to testify before the House Intelligence Committee. (Jahi Chikwendiu/The Washington Post)

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