Read the story in The Atlantic here.
I. A Crimes Commission?
As he prepares to occupy the White House, President-elect Joe Biden faces a decision rare in American history: what to do about the man who has just left office, whose personal corruption, disdain for the Constitution, and destructive mismanagement of the federal government are without precedent.
Human beings crave reckoning, even the saintliest among us. Institutions based on rules and laws need systems of accountability. People inside and outside politics have argued forcefully that Biden should take, or at least condone, a maximalist approach to exposing and prosecuting the many transgressions by Donald Trump and his circle—that Biden can’t talk about where America is going without clearly addressing where it has been. In 2019, two professors at Princeton, Julian E. Zelizer and Kevin M. Kruse, argued that the most harmful response to Trump’s offenses would be for Democrats and Republicans to agree to look past them, in hopes of avoiding further partisan division. Eric Swalwell, a Democratic congressman from California, has proposed the creation of a Presidential Crimes Commission, made up of independent prosecutors. In the summer of 2020, Sam Berger of the Center for American Progress, an influential think tank with roots in the Clinton administration, released a detailed blueprint for conducting investigations and possibly prosecutions. It laid out the case this way:
Whenever the Trump administration ends, there may be good-faith concerns that addressing the administration’s misconduct will be too divisive, set a bad precedent, or lead to political pushback from the administration’s supporters. But the lesson from the past four years is clear: The absence of accountability is treated as license to escalate abuses of power.
Joe Biden, who improbably (or impressively) has lived through exactly one-third of America’s history as a republic, is well aware of this line of argument, and of the risks of papering over the sins of the past. He was in the Senate during the Watergate investigations and, later, when the Church Committee investigated Cold War–era crimes and excesses by the CIA. Modern history is replete with instances of societies that were hampered and distorted by their refusal to face difficult truths.
“Your most important decisions at the start are what to exclude,” Jack Watson told me recently. In 1976, Watson was in charge of Jimmy Carter’s transition-planning staff as Carter prepared to take over from Gerald Ford, and four years later, as White House chief of staff, he was Carter’s coordinator for the transition to Ronald Reagan. He went on: “You have to separate what must be done, soon, from all the other things you might want to do later in the administration.”
II. Time for Triage
Let’s survey the rubble of the moment’s landscape, imagining the way it will look to future historians. Joe Biden takes office in a strong position, and a weak one. The strength is his nationwide vote total, which as a share of the electorate is larger than Reagan’s in what was considered a landslide win over Carter in 1980. The Democratic Party, usually fractious, minimized its disagreements while Biden was running. He will serve with the first woman, the first Black woman, and the first person of South Asian heritage ever to become vice president. Incoming presidents typically get at least a temporary boost in their favorability ratings when they officially begin the job. Even before being sworn in, Biden had higher popularity ratings than Donald Trump ever enjoyed.
Through the final months of the campaign, I asked historians, lawyers, and veterans of Republican and Democratic administrations how they would answer those two questions. The conversations, many of them lengthy, touched on a wide range of issues—vastly wider than I can encompass here. But the responses boiled down to an argument for triage.
For Biden personally, as president, the best thing he can do for most of the needed inquiries is simply get out of the way. He has too many other things to contend with. Criminal proceedings require neither his instigation nor his help. There are two tasks, however, where his involvement is essential. One is stemming, and then beginning to reverse, the corrosion of the executive branch. The methodical destruction of the government’s competence and integrity has been nearly invisible but is one of Trump’s most consequential legacies. The second task is launching—but not running or controlling—independent investigations into three national catastrophes: the mismanagement of the coronavirus pandemic, whose toll continues to rise; border policies under which U.S. officials intentionally separated children from their parents, and in more than 600 cases have not been able to reunite them; and purposeful or negligent destruction of the norms of government, the most important being the electoral process, pushing a diverse democracy close to the breaking point.
III. Corruption vs. Corrosion
For purposes of answering the What must be done? and Who should do it? questions, two realms of Trump offenses should be considered. The first is the category “corrupt and possibly criminal.” This realm is potentially boundless, covers matters great and small, and extends not only throughout the four years of the Trump administration but to the transition period beforehand and even to Donald Trump’s activities prior to entering the White House. Trump will likely be consumed by criminal and civil litigation for the rest of his life. That is his problem; it should not be Joe Biden’s.
Before the end of Trump’s fourth year, seven prominent campaign or administration figures had been indicted, tried, convicted, jailed, or all of the above, more than in any other modern administration in its first term. They included Trump’s former personal lawyer, his former national security adviser, his former campaign chairman, and his former chief strategist. More indictments and convictions could well lie ahead. To take just one example: Tampering with the U.S. mail is a federal offense, and Trump’s postmaster general Louis DeJoy might face charges for doing so on a grand scale, because of allegations that he intentionally sought to delay election-related mail (which he has denied).
All presidents and major-party nominees since Richard Nixon have released their tax returns. Trump promised to do so when his were no longer “under audit,” but that time has never come. The authoritative New York Times accounting of his personal taxes found that he had paid little or nothing in most of the years for which the paper obtained documentation; on two occasions, his annual federal-income-tax payment was $750. (For the record, a lawyer for the Trump Organization disputed the reporting.) Trump declared that he would separate himself from his business holdings when he took office. He did not. Instead he announced after being elected that he, as president, by definition could not have a conflict of interest. It was a counterpart to Nixon’s saying, “When the president does it, that means it’s not illegal.” Nixon’s claim did not stand up, and Trump’s probably won’t either. What secrets lie in Trump’s financial records? Why did he claim that certain properties were far more valuable when using them as collateral for loans than when valuing them for tax purposes? Was he paying himself and his family members from what were supposed to be campaign funds or official government accounts? Were his Scottish golf resorts essentially elaborate money-laundering ventures?
Possible violations of federal rather than state law are trickier, because a new administration would by definition be involved. These might include the alleged mismanagement of the Postal Service, to cite one hypothetical, or the politicization of the Justice Department by Attorney General William Barr. But Biden should view such cases as opportunities to emphasize dispassionate accountability and rule of law. Trump undermined legal standards through a willing-accomplice attorney general and through the systematic removal of inspectors general, whose common fault was that they initiated investigations of Trump himself or of Trump appointees inside their departments. Biden’s response should be to repair the structure of checks and balances, and then let it do its work. His most important appointment may be a new attorney general, chosen to embody the very principles that Barr, who served in essence as Trump’s personal lawyer and adjunct campaign manager, traduced.
Everyone knows about the Michael Lewis books that have been turned into movies: The Blind Side, about football; Moneyball, about baseball; and The Big Short, about the 2008 financial crash. But in this moment the book for which he should be known is The Fifth Risk, published in 2018, about the arcane details of managing the federal government, and why Trump’s indifference to them mattered. Questions of operational competence make headlines when an airliner crashes or the electric grid fails. The deficiencies don’t make headlines when they occur deep inside the federal bureaucracy. But they represent a quiet, daily, systemwide calamity—one that a new president can begin to control.
The shift from competence to cronyism is widespread across the government. Trump’s son-in-law, Jared Kushner, and the radiologist Scott Atlas—neither with training in epidemiology—had the president’s ear on pandemic control, as opposed to experts like National Institute of Allergy and Infectious Diseases Director Anthony Fauci and National Institutes of Health Director Francis Collins. Career intelligence officers were kicked out, and loyalists such as Richard Grenell and John Ratcliffe put in their place. Ten days into his administration, Trump fired Sally Yates, the acting attorney general, and then in short order fired the U.S. attorney in Manhattan, Preet Bharara, and the FBI director, James Comey—all three of whom were reportedly investigating the president or his appointees. Trump fired or drove out officials with professional standing that predated their political support—H. R. McMaster, James Mattis, Dan Coats—and installed more pliant replacements. He undermined the independence of the military in a variety of ways. He signed an executive order that effectively made many professional civil servants subject to political dismissal.
IV. The Catastrophes
Halting the corrosion is the very least that needs to be done—equivalent to stabilizing the patient. Just as important, investigations should be conducted into three catastrophes during the Trump years that have undermined our health as individuals, our morality as a people, and our character as a democracy.
The coronavirus pandemic may represent the greatest failure of governance in U.S. history, and responsibility for the extent of its ravages falls squarely on Donald Trump. The pandemic has killed hundreds of thousands of Americans, triggered a business collapse, and worsened every racial and economic injustice in our society. Here was a case where warnings came at an early stage, and where detailed plans to meet the threat were at hand. Trump was made aware of the imminent danger and chose first to ignore it and then to downplay it. Ultimately he resorted to outright mockery of containment and treatment efforts.
What can a new president do to this end? The answer, which is more powerful than it may sound, is to establish a commission. True, that’s not a word for bumper stickers or rally speeches. But commissions have played a role in shifting public awareness of major issues. And compared with other, ever more siloed forms of public narrative, from cable TV to food-fight congressional hearings to anything online, they start out with less of a handicap. They are as useful a tool as we now possess for confronting complex issues without immediately being shunted into talking-point posturing. “This would be like the 9/11 Commission,” a person who has worked for presidents of both parties on emergency management told me, “about a disaster unfolding slowly before our eyes. It is a massive failure of leadership, and we’ve got to make sure that this doesn’t happen again.”
The third investigation (and third commission) would probe the Trump administration’s attacks on democracy itself. American democracy depends on rules, and it depends on norms. The rules largely involve setting the balance between majority power and minority rights. The norms involve the informal cushioning that keeps disagreements from becoming civil wars. There is no law spelling out the duty of the loser of an election to concede graciously to the winner. But that is what Richard Nixon did after his hair’s-breadth loss to John F. Kennedy in 1960, and what Al Gore did after his even narrower (and more controversial) loss to George W. Bush in 2000. Democracy depends on the “consent of the losers,” as political scientists have put it.
Over the past generation, rules and norms have eroded. There is a reason books on guarding against autocracy—for instance, On Tyranny, by Timothy Snyder, and Twilight of Democracy, by Anne Applebaum—have become popular. The erosion was transformed into deliberate policy during the Trump years. Even before he was installed in office, and with no evidence, Trump called into question the popular vote in the 2016 election, alleging that millions of ballots had been cast fraudulently. Trump created a task force to look into the matter, which generated headlines (but quietly disbanded when it found no fraud). Elections are in the hands of the individual states. Now emboldened, many state legislatures have used fraud as an excuse to erect new barriers to voting by the poor, by members of minority groups, and by immigrants—reversing the gains of half a century. When the pandemic hit, prompting a shift away from voting in person, the Trump administration falsely equated mail-in ballots with fraudulent votes. When Biden won a decisive victory in both the popular vote and the Electoral College, the president refused to concede and launched a war of attrition against the legitimacy of the electoral process itself.
V. The American Story
There is one further thing Biden can do: frame all of the above in terms of the larger American narrative. The specific steps he should take are not about payback, whatever some will say. They are not even about Donald Trump as an individual. They are about the never-ending mission of forming a more perfect union. As Philip Zelikow has observed, every part of the national experience, tragic or triumphant, lives on most powerfully in story. And stories have consequences. Presidents are often most powerful as storytellers, giving citizens a way to think about themselves, their neighbors, their country, and their times. Barack Obama, who came to national attention before holding any national office, did so with his “red states and blue states” speech at the Democratic National Convention in 2004. Donald Trump told a very different story—of us versus them; of a hostile and cheating world beyond our borders; and of treacherous, devious interests here among us at home—in his “American carnage” inaugural address.
Biden likes to say, of the American-carnage era, “We’re better than that.” In practice, we haven’t been. In theory, we could be. Biden has a chance to tell a different story—a story about our potential—with the first words he utters after taking the oath of office.