A would-be reformer says if Donald Trump was prosecuted "we wouldn't want anyone to have the impression that this was victor's justice". Photo / AP
After the twin traumas of the Vietnam War and the Watergate scandal came a period of change in America's capital. The system set about reinventing itself to realign the balance of power, establish new guardrails for those in high office and try to enforce greater accountability.
Two weeks before an election that will determine whether President Donald Trump wins another term, some in both parties are already looking beyond him to map out a similar rewriting of the rules.
After four years in which the post-Watergate norms have been shattered, the would-be reformers anticipate a counterreaction to establish new ones.
"It's pretty obvious that Trump has, through his actions and words, exposed a number of weaknesses in the normative and legal restraints on the presidency," said Jack L. Goldsmith, a Harvard Law School professor.
"He has revealed there are a lot of gaps in presidential accountability, and norms are not as solid as we thought. He has revealed the presidency is due for an overhaul for accountability akin to the 1974 reforms."
Goldsmith, an assistant attorney general under George W. Bush, has teamed with Robert F. Bauer, a White House counsel under Barack Obama, to produce what could be a bipartisan blueprint for what such an overhaul would look like. Among their ideas are empowering future special counsels; restricting a president's pardon power and private business interests; and protecting journalists from government intimidation.
They are not the only ones looking ahead. House Democrats led by Adam Schiff of California, the chief House manager in this year's Senate impeachment trial of Trump, have assembled a legislative package of similar ideas, including limits on a president's authority to use declarations of national emergencies to take unilateral action; more protections for inspectors general and whistleblowers; and an accelerated process to resolve disputes over congressional subpoenas.
The flurry of proposals reflects the pent-up frustration on the part of Trump's critics in both parties over his success at flouting traditions that have bound other presidents in the nearly half-century since Watergate.
Trump has overtly pressured the Justice Department to go easy on his allies and prosecute his enemies while purging the government of inspectors general who exposed improprieties within his administration. He has kept his business, hidden his tax returns and defied congressional inquiries.
"He definitely underscored that a president who's committed to challenging these norms can do it," Bauer said. "We shouldn't assume it won't happen again. We shouldn't assume it's a one-off."
Bauer and Goldsmith developed more than 50 proposed legislative and executive changes in After Trump: Reconstructing the Presidency, the first book published by Lawfare Press, an imprint of Lawfare, a nonpartisan website that focuses on issues of national security and executive power.
Their collaboration was meant to bring together veterans of Republican and Democratic administrations, although Goldsmith said he became an independent after his party nominated Trump in 2016.
Bauer's involvement may be telling because he is a senior adviser to the campaign of former Vice-President Joe Biden, the Democratic nominee, and would be in position to promote these ideas with a new administration should Trump lose.
Among their ideas:
• Provide more authority and protection for future special counsels investigating presidents or other high-level officials and have them report their findings to Congress and the public rather than to the Justice Department.
• Prohibit presidents from pardoning themselves and amend the bribery statute to make it illegal to use the pardon power to bribe witnesses or obstruct justice.
• Bar presidents from managing or supervising private businesses or establishing blind trusts for their financial assets and require any business in which they have an interest to file public reports.
• Authorise inspectors general to investigate and report on reprisals or intimidation of journalists.
• Revise the authorisation of force passed after September 11, 2001, to prohibit humanitarian military intervention without additional votes by Congress and limit the use of nuclear weapons to self-defence in extreme circumstances.
• Ensure that the attorney general makes decisions on prosecutions involving the president or presidential campaigns, not the FBI director, as happened during the Hillary Clinton email case.
Bauer and Goldsmith are an unlikely tandem. They got to know each other when Bauer invited Goldsmith to speak to his class at New York University School of Law and they debated the merits of the Obama and Bush administrations.
They found that they shared a common concern for what they see as the consequences of the Trump presidency, prompting development of these proposals.
The historical precedent traces back to the 1970s when Congress responded to Vietnam, Watergate and CIA revelations with a raft of legislation, including the War Powers Act, the Independent Counsel Act, the Foreign Intelligence Surveillance Act, the Privacy Act, the Inspector General Act, the Civil Service Reform Act, the Presidential Records Act, the Ethics in Government Act that provided for independent counsels, and updated versions of the Federal Election Campaign Act and Freedom of Information Act.
The intent was to curb abuses like those under President Richard Nixon and make government and political campaigns more accountable. Not all of them worked as hoped; the campaign finance system created at the time has been warped by court rulings, creative legal interpretations and the collapse of public financing, while the Independent Counsel Act lapsed after Iran-Contra and Whitewater investigations soured Republicans and Democrats alike.
One area where Bauer and Goldsmith disagreed might presage a larger debate if Trump loses — whether he should be prosecuted. In that, too, there is a 1970s precedent in President Gerald Ford's decision to pardon Nixon rather than have a former president stand trial, an act that may have cost Ford the 1976 election but has since won him praise as an act of courage in the national interest.
Goldsmith argued that investigations of any actions by Trump that occurred before he became president should be allowed to continue but warned against criminal prosecution of acts that he took while in office.
"I just think it's going to make everything worse for everyone, on balance," he said. "It will continue to be a spectacle. It will consume the next administration. It will not be easy to pull off. It will look politicised." And it would set "a terrible precedent for the country" by encouraging the expectation that a new administration would routinely investigate its predecessor.
Bauer acknowledged the point. "We wouldn't want anyone to have the impression that this was victor's justice or vigilante justice or anything like that," he said. But he argued that any investigation of Trump should be allowed to work its way toward a conclusion and only then, after the facts had been established, should the next president consider a pardon or commutation.
Otherwise, Bauer said, presidents would be shielded from prosecution while in office by Justice Department policy and then shielded from prosecution after leaving office by the political desire to avoid a spectacle.
"We have to signal that there is going to be some accountability for presidential misconduct," he said.
Written by: Peter Baker
© 2020 THE NEW YORK TIMES
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