The Biden administration has promised to promote unity when it takes office later this month. That’s an excellent message after four years of deliberate provocation and polarization coming from the Trump administration.
But the incoming administration must also draw a clear line between what is and is not acceptable political behavior. And the best way to draw that line is to kick out Trump’s obviously incompetent political appointees, prosecute Trump administration officials for any and all illegalities, and boycott elected officials who have subverted the democratic process.
This is not revenge. It is a necessary action to isolate those who have assaulted not the Democratic Party – for instance, during the Supreme Court confirmation battles – but the U.S. constitution.
Nor is this a partisan action. Some of the most courageous politicians over the last several months have been Republicans, like Arizona Governor Doug Ducey and Georgia Secretary of State Brad Raffensperger, who have defied the autocratic efforts of their president. They must be held up as the counter-examples to operatives like Rudy Giuliani, administration officials like Peter Navarro, elected representatives like Ted Cruz (R-TX), and most of all the delusional president himself.
Trump and his high-level supporters collectively crossed a line during and after the election. If they are not penalized for their conduct, if they are not treated as the outlaws that they are, if there are no substantial consequences for their actions, then it will only encourage them – or the next band of transgressors – to launch a fresh assault on American democracy.
By all means, the Biden administration must reach out to the 74 million Americans who voted for Donald Trump by crafting policies that address their concerns over economic insecurity and unresponsive government. And yes, the administration will have to woo key Republican legislators in order to push through bills in a closely divided Congress.
But this isn’t about normal politics. The United States hasn’t faced a crisis of legitimacy like this since the Civil War. What has happened since November 3 is an attempted coup, and the perpetrators, including the president, cannot be allowed to get away with treason.
It’s O.K. Corral time in the nation’s capital. With their efforts to overturn the results of the Electoral College, gunslingers like Josh Hawley (R-MO) are targeting not only the incoming Democratic administration but the very foundations of the American political system.
The Biden team will make a big mistake if it brings nothing but a butter knife to this fight.
Donald Trump has been doing everything he can to shield his cronies from prosecution by giving them pardons. He may well attempt the same for his family. And, though it would certainly not be a good look, he might try an auto-pardon as well or arrange in the final days of his presidency for Mike Pence to do the dishonors.
None of this means that prosecution is off the table.
Let’s start with the soon-to-be-ex-president. Donald Trump should have been removed from office over his dealings with Ukraine. He wasn’t. He engaged in myriad acts of corruption involving his own businesses such as violating the emoluments clause of the Constitution. So far, he has avoided any charges.
His latest offense was to break both federal and state statutes by pressuring the secretary of state in Georgia to tamper with the 2020 presidential election results. With only two weeks left in his term, he will not likely be impeached again. A conviction in the courts, meanwhile, would require a prosecutor to prove that Trump understood that he lost the election and intentionally committed election fraud.
But Trump may well believe his own surrealistic statements about the election. In other words, the president would be innocent only by reason of insanity. That should be cold comfort to the Republicans who continue to line up behind him.
There are other opportunities to prosecute Trump once he loses his Oval Office privileges. Manhattan Attorney General Cyrus Vance Jr. has launched a broad-spectrum criminal investigation into Trump’s business dealings and possible insurance, tax, and bank fraud. To that end, Vance has subpoenaed Trump’s tax returns, is digging into his dealings with Deutsche Bank, and has also investigated the hush money payments Trump provided women during the 2016 campaign, though this last issue is no longer the focus of the inquiry.
Trump might be hoping that the statute of limitations lapses on the charges Vance is considering. For most tax fraud, for instance, the statute of limitations is either three or six years.
Or the president is thinking that he can pardon himself out of this corner. But even if a president can issue such a self-serving pardon, it would only apply to federal crimes. As Charlie Savage explains in The New York Times:
Some types of offense — like tax evasion and financial fraud — are offenses under both federal and state law. Mr. Trump does not have the authority to prevent state prosecutors from pursuing charges over such a matter. State prosecutors in New York are investigating various matters related to Mr. Trump’s financial dealings.
These considerations apply as well to the civil case that New York Attorney General Letitia James has been mounting against Trump to complement Vance’s criminal inquiry.
Then there’s the possibility of prosecuting Trump for what he did as president. It would be fitting to put him in the dock for war crimes – including the assassination of a top Iranian official last January – as Jeremy Scahill argues at The Intercept. But the Democrats are not likely to pursue such an option for fear that it would be turned against them as well.
Still, Trump committed plenty of other prosecutable offenses while in office. Although he wasn’t impeached for it, Trump obstructed justice by refusing to cooperate with the Mueller investigation, blocking witness testimony and failing to provide requested documents. He might have committed perjury as well. The best option here is for the incoming administration to appoint a special prosecutor to look into these charges.
Trump may have committed further crimes with his pardons. In December, the Justice Department began in inquiry into the possibility that the administration’s pardons have been part of a bribery scheme. Since then, Trump has been even more liberal (or illiberal) with his pardon pen. If he used the pardon to shield himself from future prosecution, that’s a prosecutable offense as well.
Trump faces other legal challenges as he leaves office, including lawsuits around sexual misconduct and actions against the Trump Organization. He’ll also face a raft of creditors calling in his debts, which amount to more than a billion dollars. Suffice it to say that on January 20, Trump will go from a mob boss to a man pursued by a mob.
Other administration officials also face potential prosecution, including all the loyal lieutenants who worked to block the Mueller inquiry. At least 16 administration officials violated the Hatch Act more than 60 times by using taxpayer dollars to campaign for Trump this fall. Officials like Jared Kushner have used their office to ensure a soft, cushy landing after they leave DC and should be prosecuted for influence-peddling. Several also engaged in unethical financial investments.
This is just the tip of the garbage dump. Watchdogs, unleashed, will no doubt dig up a great deal more dirt once these dirtbags are out of office.
The first task of the Biden administration is to rid the federal government of Trump appointees and all the ridiculously incompetent loyalists Trump elevated in his final weeks in office. Let’s be clear: this is not a political blacklist. If you voted for Trump, you should not fear for your job in the federal bureaucracy. There should be no loyalty test.
I’m talking about the ordinary rotation of appointees that takes place with any turn in administration. In addition to that are the bombs that Trump has planted in Washington timed to go off after he has been dragged out of office.
Let’s start with the roughly 4,000 political appointees who customarily resign when their president leaves office. These are not normal circumstances, however, and Trump loyalists are partial to sabotage. So, Biden may have to play Trump and start getting used to saying, “You’re fired.” The list of dismissals, David Dayen writes in The American Prospect,
includes hundreds of U.S. attorneys and inspectors general, the leadership at the FBI and IRS, the general counsel of the National Labor Relations Board, the two top officials at the Social Security Administration, and the chairs of at least 12 multimember commissions. In particular, Biden could use this authority to completely transform the financial regulatory leadership, putting the deregulatory posture of the Trump years firmly in the past.
Some heads of commissions can’t be fired but can be demoted in favor of those with views more closely aligned with the new administration. How smoothly this process proceeds depends on how tenaciously the Trumpers cling to power.
The landmines that Trump planted, meanwhile, are divided into two categories. The first are the “burrowers.” That’s a technical term for appointees that are converted into well-paid civil service positions. It’s something that administration have done since the nineteenth century. Usually these appointees have a minimum degree of competency and relevant skills sets. Not so with Trump. He has typically chosen people whose personal philosophies are antithetical to the mission of the agencies they’re joining.
There’s Tracy Short, the chief immigration judge at the Department of Justice’s Executive Office for Immigration Review, who’s an anti-immigration hardliner. Prerak Shah, now the assistant U.S. attorney in the northern district of Texas, is a specialist in voter suppression. Brandon Middleton, now the chief counsel at the Department of Energy’s Environmental Management Consolidated Business Center, is an anti-environmentalist.
The National Security Council’s Michael Ellis was given the plum position of general counsel of the National Security Agency. Ellis made a name for himself as counsel to Devin Nunes, (R-CA), who did as much as anyone in Congress to impede investigations into Trump’s politicization of foreign affairs and intelligence.
It’s not so easy to get rid of paid civil servants. The irony, of course, is that Trump himself wanted to do just that. In an executive order on October 21, Trump attempted to strip federal employees of job protections. His loss at the polls means that the incoming Biden administration will likely reverse the October 21 decree. Which means that some of the manifestly inappropriate people that Trump has deposited in the bureaucracy can only be ousted for unacceptable performance or misconduct. On the positive side, maybe it’s just a matter of time before they sabotage themselves.
The second category are the appointment of lickspittle toadies to unpaid but potentially influential positions: Corey Lewandowski and David Bossie (Pentagon Defense Business Board), Kellyanne Conway (US Air Force Academy), Andrew Giuliani (U.S. Holocaust Memorial Museum Board), Matt Schlapp (Library of Congress Trust Fund Board), Stephanie Grisham (National Board for Education Sciences), Hope Hicks (Fulbright), and Pam Bondi (Kennedy Center). The Defense Policy Board nominees include not only the reliably incoherent Newt Gingrich but homophobic ex-politicians Randy Forbes and Robert Smith as well as Scott O’Grady, who called the November 3 election a “coup.”
Fortunately, it’s relatively easy to evict this second category of squatters.
Prosecuting the criminals and evicting the squatters: these are important first steps. But to drive a stake through the heart of Trump’s challenge to American democracy, a third step must be taken.
In some ways, Josh Hawley and Ted Cruz have done us all a favor by announcing their intention to challenge the Electoral College results in the Senate. Along with more than a hundred House Republicans, the 13 Senate members of the “No Surrender” caucus are challenging results in states where there has been no evidence of fraud, where judges have turned back numerous court challenges, where even the majority of Republican state legislators have acceded to the electoral results.
Of course, these politicians have the right to challenge the Electoral College result, whatever their ridiculous reasons, no matter what their party leadership says, and despite the harm their actions will have on the democratic system. They won’t be prosecuted for their political grandstanding or even censured. Nor can they be summarily removed from office simply for declaring their undying devotion to President-for-Life Donald Trump.
They can, however, be isolated. The new administration and the Democratic leadership in Congress should enforce a policy of non-engagement with these politicians. If they refused to recognize the Biden administration, they should go unrecognized in turn as democratic representatives. Instead, the administration should not mention them, meet with them, or otherwise acknowledge that they exist as political actors.
Some might argue that the line should be drawn elsewhere. Perhaps you think that all Republicans, with a few exceptions, should be in quarantine for allowing Trump to run roughshod over the republic. Or you might think that hatchets should be buried and politics as normal should proceed. By all means, let’s have a discussion of what constitutes acceptable and unacceptable political behavior.
But Hawley, Cruz, and the other members of the “No Surrender” caucus have decided to tie their political futures to a criminal psychopath. Bully for them. Now, let’s make sure that they have no political future.
The boycott shouldn’t stop there. I side with the coalition of immigrant rights groups that called on the business community in April 2019 to blacklist every member of the Trump administration involved in the family separation policy. The list of 30 officials included John Kelly, the former White House chief of staff, Homeland Security Secretary Kirstjen Nielsen, and Trump spokeswoman Sarah Huckabee Sanders.
But why stop at family separations? How about everyone that was involved in environmental deregulation? Everyone involved in gutting public education, undermining national health care, destroying the Iran nuclear deal? It’s infuriating to see members of the criminal enterprise known as the Trump administration get lucrative corporate jobs, prestigious university appointments, and talking head slots in the media. If the court system fails to throw them in jail, the least we can do as a society is deprive them of status by other means.
This last task falls not to the Biden administration, which should be scrupulously non-partisan in this regard. Rather, it must be society as a whole that turns these alumni into a class of untouchables. #MeToo did it for sexual predators. What about #UsToo to shame the Trump predators?
Hard-line conservatives like to say that strong-arm leaders and their followers in other countries don’t respect engagement and reconciliation and only respond to power. Generally, I don’t agree with that contention.
But hey, I’m an open-minded fellow. I’m willing to test their hypothesis – on Trump and his malign band of ForeverTrumpers.
Let’s see how they like a taste of their own medicine.
World Beat, Foreign Policy In Focus, January 6, 2021