Jonathan P. Baird

The presidency of Donald Trump presents a daunting challenge to anyone who cares about the future of the rule of law. Never has a president so debased his position. Who calls a state Secretary of State and asks him to flip votes? Corruption may be the singular thread that runs through every aspect of this presidency.

Take your pick: pardons for war criminals and venal cronies, using public office for private gain, tax fraud, lying and manufacturing a steady stream of misinformation, putting children in cages, and trying to overturn a democratic election to install yourself as dictator. And that barely scratches the surface. The crimes run deep. The abuse of power has been relentless.

The question emerges: how can the Biden Administration check and constrain this overwhelming pattern of wrongdoing? So many are saying that addressing the Trump Administration’s misconduct would be too divisive and time-consuming. They counsel that the government should look forward rather than back. The concern is that a Biden Administration focused on prosecuting Trump would enrage Trump followers. It could also have a bad look, reducing Biden and making him look like a tinpot dictator himself.

I am struck by the long-term pattern of failure of accountability in American life. Over the last 50 years, the examples are numerous. President Ford’s pardon of Nixon, President George H. W. Bush’s pardons of Reagan officials for the Iran-Contra scandal, and President Obama’s failure to prosecute torturers who defiled the George W. Bush presidency all come to mind.

The thinking has been that accountability was too divisive. The problem though is that the absence of accountability is a license for repetition of the abuse of power. For example, Obama’s unwillingness to pursue those who committed torture greatly increases the likelihood that behavior will recur.

President-elect Biden has nominated Avril Haines as Director of National Intelligence. In an Open Letter, torture victims and their advocates have opposed Haines’ nomination because of her troubling record on torture. Whatever her competence, Haines both defended torture and suppressed evidence of it. She supported Trump’s nomination of Gina Haspel for CIA Director. Torture is illegal under international law and there is an unmistakeable bad message sent with the Haines’ nomination.

Stepping back to look at the broader sweep of American history, I think the failure of accountability goes back to our country’s origins. The narrative we have told about Native American history is an early example. The savage war fought against Native Americans pushed them back farther and farther west, across the continent. Law had nothing to do with this process although dishonored treaties by the U.S. government happened along the way. It was a “might makes right” history.

How has that been officially acknowledged and where is the accountability? Where is the United States Native American Genocide Memorial Museum? It hasn’t happened. Denial rules.

Similarly with slavery, where is the accountability on a national level? Americans have grown up with a rationalized view of that history and there has been an unwillingness to reconsider how the past events of slavery affect us still. Conventional thinking remains that these events happened long ago and have little bearing on now.

Post-Civil War history disappeared slavery-by-another-name. It is telling that the only memorial for lynching in the United States was created by a private Alabama non-profit law firm, the Equal Justice Initiative. We bury that history and as a result do not take the needed steps required to begin rectification.

I think the same pattern is true with the Vietnam War. Although many know it was a horrible mistake, there has been a collective refusal to admit that war was wrong and criminal. Instead of a self-critical look at our empire and our militarism, we blundered into Iraq where we repeated Vietnam-like mistakes, costing untold lives, American and Iraqi. The empire, recognized around the world, is not recognized by Americans who have been taught a sanitized history.

We are overdue in the United States for taking a hard look at ourselves. While elections may have changed those in power which is some kind of check, they have not promoted self-critical examination. When Trump vetoed the National Defense Authorization Act, one reason he provided for the veto was the provision that would require the military to rename bases that were named after figures from the Confederacy.

What better example of the failure of critical thinking than that? Are we still compelled to defend traitors committed to white supremacy who took up arms against the United States? To say that view is backwards does not express how odious it is.

It would be a huge mistake if no efforts are made to acknowledge and reckon with Trump crimes. Not to do so would make it much more likely that, at a later date, we could further devolve into some type of authoritarian state. The damage done by the last four years should not be understated. If Trump had won the election, we would be looking at a fascist consolidation of power. We barely escaped.

I have a couple thoughts on places to begin the accountability process. How the Trump Administration mis-handled the pandemic requires a national commission to study what happened with COVID-19. At the federal level, the commission should study the federal response so that we, as a nation, learn from the experience. We need to be better prepared for next time. Such a commission might be possible as a bi-partisan endeavor.

The second initiative would be centered on the family separation policy. Out of thousands of cases where family reunification was achieved, 545 migrant children are still separated and their families cannot be located. Every effort should be made to reunify these families. It was Trump’s zero tolerance policy that led to the separation of thousands of families. This has been government-sponsored child abuse and there is a moral imperative to do everything to try and make this right.

There are other Trump misdeeds that stand out. I suppose there is subjectivity in sorting these but I will hit on some I think are worst. Possibly state prosecutors will look at taxes. No presidential candidate should ever be able to run who has not disclosed the last 5 or 10 years of his or her income taxes.

The politicization of law enforcement and the Department of Justice, abuse of the Hatch Act, and mis-use of the pardon power jump out. Dangling the prospect of a pardon in exchange for non-cooperation with federal investigations is the definition of corruption.

Ignoring presidential crimes is the same as saying the President is above the law, a position essentially argued by Nixon and Trump. That position must be repudiated. Presidents are not kings and it is not a viable option for a Biden Administration determined to reassert the rule of law.

More generally, America has been crippled by the propaganda message of our exceptional goodness. That message has never squared with the facts. Now more than ever, we need honesty and a willingness to look at the dark side. Failure of accountability could lead to the next Trump or Trump-equivalent successfully consolidating fascism.