Want Americans to feel like the country is fair? Think the rule of law is important? Prosecute powerful people when they commit crimes. Even people who worked for a president. Even a former president.
The story of 21st-century America is complex, but the narrative of powerful people behaving terribly and getting away with it is arguably the common thread. Consider the illegal torture operations of George W. Bush, Dick Cheney and John Yoo. Reflect on the financial frauds perpetrated by Wall Street bankers and foreclosure mills last decade (they’re not exactly complying with the law this decade, either). Contemplate the big lies of fossil fuel executives like Exxon chair turned Secretary of State Rex Tillerson. Think about the violations of consent decrees, tax laws and antitrust statutes by the likes of Mark Zuckerberg, Sheryl Sandberg and the rest of Silicon Valley. Reckon with the horrifying conduct brought front and center by #MeToo. And then come to terms with the number of the aforementioned elites whose potential criminal liability has been taken seriously by prosecutors ― approximately zero.
This is all the evidence you need to see how things are likely to go whenever the Trump administration meets its demise.
There will be the inevitable establishment calls to “look forward and not behind.” Elites of all stripes will argue for the president’s successor to allow Trump and his accomplices to avoid legal accountability for everything from the Trump Foundation scam to conspiring with Russian agents.
The story of 21st-century America is complex, but the narrative of powerful people behaving terribly and getting away with it is arguably the common thread.
One can already imagine the Washington Post editorial board’s calls to “remember how Gerald Ford pardoned Richard Nixon and healed the country,” setting aside the fact that failing to prosecute Nixon for a wide swath of violations far beyond “merely” covering up political espionage undoubtedly encouraged future presidents to think they are above the law.
Indeed, few of the generally hagiographic obituaries of George H.W. Bush mentioned his lame-duck pardons of senior Reagan and Bush administration officials to foil the special counsel’s investigation into serious criminality (including potentially Bush’s own) in the Iran-Contra affair.
Trump, who has spent a lifetime stretching (and seemingly bursting) the legal limits on tax avoidance, money laundering, housing discrimination, deceptive consumer practices and sexual assault, ran a presidential campaign that represents the apotheosis of elites breaking laws to achieve massive gains. Since taking office, Trump has plausibly been implicated in a broad array of crimes, including breaking campaign finance rules, violating state and national tax laws, conspiring to violate the Computer Fraud and Abuse Act, and of course, obstructing justice.
Should Trump’s successor, be it Mike Pence or a Democrat, pardon Trump? How should New York Gov. Andrew Cuomo (D) and other state and local officials treat Trump as well as his children and cronies who seem exceedingly likely to have acted in a manner that warrants prosecution?
That Americans no longer trust their institutions or elites should not be a source of wonderment ― it should be seen as a rational response to the declining trustworthiness of the people with the most power in this country. If “with great power comes great responsibility,” then why is our criminal justice system so focused on jailing poor people for being unable to pay fines for modest offenses or nonviolent drug possession?
A just America would seek, first and foremost, to hold the most powerful Americans to account.
There is a reason that “Equal Justice Under Law” is carved into the physical architecture of the Supreme Court above its primary west entrance. Far, far too often, America has not been a society where we are all actually subject to law equally. And yet the notion that politicians and billionaires are supposed to be the same under the law as the poor and the oppressed is a powerful principle. This aspiration is necessary for the development of a sense of community and has served as a powerful impetus for America becoming generally less unfair over time.
When the idea of equality under the law is breached serially and nearly irrevocably, that sense of commonality fractures. We won’t be able to address our many challenges ― for instance, a Green New Deal ― as an actually *united* United States unless we can create a sense that the rule of law applies to all equally.
In 2009, then president-elect Obama expressed “a belief that we need to look forward as opposed to looking backwards” in previewing his administration’s free pass to George W. Bush alumni. That view was at odds with a commitment to justice, since, by its very nature, justice is always retrospective ― crimes are committed, criminals are charged, juries or judges weigh the evidence and proceed to punish (or not) accordingly.
The view was also a political calamity ― Obama’s governance strategy of burying the broadly accepted failures of the Bush presidency created a path for Bush’s enablers in Congress to secure historic victories in the 2010 midterms. And the Obama administration’s failure to prosecute bankers and other elites responsible for economic cataclysm added fuel to the fire of resentment that led so many Americans to the tea party, and ultimately, Trumpism.
But an argument for accountability is not principally about politics. If Pence or a Democratic successor follows in the footsteps of presidents Ford or Obama, they will be continuing a cycle of nonaccountability for the powerful. They will be helping cynicism flower anew.
Democrats and their candidates should resolve now to end the cycle of injustice that allows the powerful to shield themselves from the consequences of their actions. It should be a litmus test for any aspiring Trump opponent to commit to governing under the principle of “equal justice for all” and to empowering prosecutors to go where the evidence takes them.
The end of Trumpism will not be when Trump is defeated at the polls or even when he is impeached. It will be when America comes together as a nation and acts to ensure that elites like Trump who transgress against our shared laws suffer consequences proportionate to their actions.
Jeff Hauser is the executive director of the Revolving Door Project at the Center for Economic Policy and Research.