Donald Trump will leave office on January 20 under the biggest cloud of corruption and scandal of any president since 1974, when Richard Nixon waived dual victory signs after resigning in disgrace.
If President-elect Joe Biden was inclined to prosecute Trump, his only dilemma would be where to start. Trump’s own Department of Justice refused to indict him for alleged crimes uncovered related to hush-money payments to his extra-marital lovers, and for obstruction of justice alleged in the Russia investigation. He faces multiple state-level criminal inquiries stemming from his personal business practices, civil suits related to his alleged sexual assaults and his 2017 inauguration.
But Biden is reportedly wary of launching investigations into his predecessor — and has made clear he won’t tell federal law enforcement what to do. “I will not do what {Trump] does and use the Justice Department as my vehicle to insist that something happened,” Biden told NBC News on November 24.
While Biden admirably does not intend on echoing Trump’s undemocratic “lock them all up” chants, his administration can simply allow independent prosecutors to make their own decisions by opening the books on the Trump administration to expose wrongdoing, self-dealing and unlawful activity.
This will require the adoption of an affirmative policy to release and disclose information both in response to requests from Congress, oversight entities, journalists and the public — something the Trump administration did not do almost as a matter of policy. But in other respects it will involve the proactive implementation of policies through executive order or agency directive that would allow for the release of documents suppressed by the Trump administration. Much of the evidence of the Trump administration’s malfeasance is not yet in the public sphere, and by simply disclosing it Biden could begin the process of holding the soon-to-be ex-president accountable for his misdeeds.
Radical Disclosure
While some of Trump’s potential crimes have already been outlined by prosecutors or special counsels — like in the Mueller report, or the indictment that sent Michael Cohen to prison for paying hush money to porn star Stormy Daniels — not every crime or improper act has been recorded. Many are simply suspected based on public reporting and allegations made by former officials.
“There is a ton of information about the Trump administration that can come out pretty easily with the Biden administration just restoring normal practices,” said Jordan Libowitz, spokesman for the liberal watchdog group Citizens for Responsibility and Ethics in Washington.
CREW has released a report on how a Biden administration can create a more open government while also exposing the misdeeds of his predecessor, as has a coalition of transparency and watchdog groups under the banner of Accountability 2021. These reports contain a litany of recommendations that Biden could adopt immediately upon taking office.
His administration could, for example, issue an executive order re-establishing a presumption of openness for Freedom of Information Act requests and eliminate the political reviews that the Trump administration required for such requests. No administration has a great record on filling FOIA requests, but the Trump administration was significantly worse than previous ones, with records set for the extent of secrecy and the number of documents withheld from the public.
As part of becoming the least transparent presidential administration in recent history, the Trump administration also adopted a novel legal viewpoint on compliance with congressional oversight. Its theory was simple ― the executive branch did not have to comply with congressional requests for documents or testimony even during an impeachment inquiry. For this reason, the Trump administration rarely delivered the documents requested by congressional committees, specifically those led by Democrats.
Just because the Trump administration will be gone on Jan. 20 does not mean those requests need to languish. Biden could order all agencies and governmental bodies to review all record requests made by Congress or other oversight bodies, including the Government Accountability Office, during the Trump administration and to fill them. Additionally, congressional investigators could resubmit their requests to the new agency heads to provide the Trump era documents.
An order for agencies to review and respond to congressional document requests regarding Trump administration actions could also involve reviewing and overruling the administration’s assertions of executive privilege.
“There needs to be a radical mind shift towards automatic disclosure”
- Lauren Harper, National Security Archive director of public policy
“There’s been disputes before about broad assertions of privilege where documents haven’t been turned over,” Katherine Hawkins, legal analyst with the nonprofit watchdog Project on Government Oversight, said. “It used to be for categories of certain documents but now it’s just everything.”
Potential investigations might not involve direct lawbreaking by the president ― they could include acts ranging from human rights abuses arising from the child separation policy, lying to Congress, and the politicization of the Department of Justice and other agencies, including blatant Hatch Act violations by nearly every high-ranking Trump official.
There’s also the ongoing debacle that is his administration’s failed response to the Covid-19 pandemic that has cost the lives of hundreds of thousands of Americans.
And it is not as though the policies of the Trump administration end when he leaves office. There are still migrant children separated from their parents by the US government who need to be reunited. Any investigation into this policy would need to review documents from the Trump administration to determine how the policy was implemented and whether anyone could be held to account for human rights violations.
Congress may request documents next year regarding executive branch malfeasance under Trump as it seeks to enact legislation like the For the People Act that aims to expand voting rights and limit partisan gerrymandering. Similarly, members of Congress could seek documents related to Trump’s relationship with particular countries to investigate whether U.S. foreign policy was corrupted in favour of his private, personal interests.
For example, Sen. Ron Wyden (D-Ore.) requested documents from the Department of Justice, the FBI, the Department of Homeland Security and the Department of Education on Dec. 2 related to alleged interference by Trump in the agencies’ activities regarding Turkish-U.S. government relations. Trump is alleged to have requested an investigation into self-exiled Turkish cleric Fethullah Gülen and pressured the agencies to favour the Turkish government, including in a criminal investigation into Halkbank, the large Turkish state-owned financial institution.
Also, Trump owns a commercial property in downtown Istanbul that is connected to Turkish elites, and former Trump national security adviser John Bolton has repeatedly suggested that the president was engaged in corrupt acts to protect his personal financial interest in Turkey. Such a request could be filled by a new administration.
Biden’s attorney general could also mandate the disclosure of secret memos drafted by the Office of Legal Counsel. While the Trump administration has released some OLC memos to justify some of its most outrageous policies, including refusing to comply with congressional oversight, it has pointedly not released others, most notably a justification for why the Department of Justice did not indict Trump for obstruction of justice as recommended in the Mueller Report.
A move to disclose secret OLC memos would not be unprecedented. In early 2009, Barack Obama’s administration released some of the Bush administration’s secret OLC memos justifying its torture policy. But Biden could go further and simply order all OLC memos to be made public and put online.
“There is nothing stopping the next president from just saying all these things are now public, go to our website,” Libowitz said.
A Biden White House could direct the Office of Management and Budget to order agency reviews of all previous spending during the Trump administration to determine contracts or expenditures that may have been awarded due to improper political interference. Political interference in agency spending has been suggested in reports about Trump’s border wall, the Pentagon’s cloud computing contract and at the Centers for Disease Control and Prevention during the Covid-19 outbreak.
Trump was also accused of illegally abusing agency expenditures when he held up Pentagon aid to Ukraine as part of his quid-pro-quo scheme to foment an investigation into Biden.
The new administration could also target classified documents for review on whether they have been properly filed as classified. Trump’s impeachment revealed that the White House routinely placed calls he had with other heads of state on a classified server for no other reason than to avoid the president’s embarrassment.
“It’s appropriate for the Biden administration to review the Trump administration’s classification decisions to determine if any material was improperly classified,” said Erica Newland, counsel at Protect Democracy, a domestic pro-democracy nonprofit founded in response to Trump’s election.
And if Biden is worried that such actions are too backward-looking, the adoption of any open government and transparency orders and directives would also apply to his administration and future administrations. Trump’s ability to hide information and withhold disclosures from Congress, journalists and the public to cover up his corruption existed before he came to office. The idea is to prevent a future president from doing the same.
“There needs to be a radical mind shift toward automatic disclosure,” said Lauren Harper, director of public policy at the National Security Archive. “We have to have a fundamental shift not only in what should be classified but how we go about declassification. The loopholes were there. The precedents were set. We have to radically reconsider how we declassify information. It’s just not a sexy topic until you’ve got scandal involved.”
What Happens Next
The disclosure of information from the Trump era could lead the Department of Justice to appoint special counsels, initiate prosecutions or indict officials. The release of new information may alternatively result in congressional investigations detailing what happened. Or this information could inform ongoing criminal and civil probes.
There are already areas where prosecutors could simply decide to prosecute once Trump is out of the White House.
The most obvious one is that the president’s former fixer, Michael Cohen, named Trump as a party to the campaign finance crimes that he pleaded guilty to stemming from payouts to Daniels and another woman, Karen McDougal, during the 2016 campaign to keep hidden word of their alleged affairs with Trump. The U.S. attorney for the Southern District of New York could independently indict Trump for these crimes on Jan. 20 if prosecutors there were so inclined.
“It’s important for the sake of democracy for people who break campaign finance and other laws to be held accountable even if they’ve spent four years as president,” said Paul S. Ryan, a campaign finance litigator at the nonpartisan nonprofit Common Cause.
Current and separate criminal inquiries are underway in New York state led by Attorney General Tish James and Manhattan District Attorney Cy Vance into Trump’s businesses for a range of financial and tax crimes. These cases operate independently from any federal government probes.
“There are a number of investigations that I’ve read about that are at a state level,” Biden has said. “There’s nothing at all that I can or cannot do about that.”
Biden’s attorney general, however, could order the Department of Justice to comply with any such state and local investigations where requests to do so are made. This is something Trump administration Attorney General Bill Barr would not do.
Since Biden has promised to avoid the imposition of political pressure on the Justice Department, prosecutors could simply choose to pursue cases where the evidence is warranted.
A New Normal
A common perception persists of a norm that new presidential administrations should not investigate or prosecute their predecessors. This culprit for this perception is President Gerald Ford’s preemptive blanket pardon of Nixon for any potential crimes he committed during his administration.
In line with Biden’s comments today about seeking unity and looking forward, Ford justified his pardon of Nixon by expressing concern that “our people would again be polarized in their opinions,” and “ugly passions would be aroused again” by a lengthy trial that would dominate political discourse for years.
But whereas Ford pardoned Nixon, he did not do so for Nixon’s aides. Previous presidents may not have been prosecuted by their successors, but that does not mean that successive administrations halted all investigation into their predecessors.
In Nixon’s case, aides including former Attorney General John Mitchell, White House chief of staff H.R. Haldeman and domestic policy adviser John Ehrlichman, among many others, were subsequently prosecuted and convicted of crimes related to the Watergate break-in. Additionally, Nixon’s abuse of the nation’s intelligence agencies, along with revelations from whistleblowers, led Congress to host hearings for the duration of the 1970s on abuses by intelligence agencies dating back to their founding after World War II.
The independent counsel investigation into the Iran-Contra scandal, in which members of President Ronald Reagan’s national security council pursued an illegal and covert foreign policy, continued for four years after Reagan left office. It only ended when President George H.W. Bush pardoned all of the Iran-Contra figures shortly after he lost reelection in 1992 and just before indicted former Secretary of Defense Casper Weinberger was set to testify in court. (This was effectively a self-pardon as Weinberger’s diary reportedly showed Bush knew about the illegal foreign policy.)
After President Bill Clinton’s last-minute pardon of tax-evading commodities trader Marc Rich, whose wife made large contributions to the Democratic Party and Clinton’s presidential library, the newly confirmed attorney general in the George W. Bush administration, John Ashcroft, appointed a special counsel to investigate whether Clinton had traded an official act for campaign donations. Special counsel James Comey ultimately found no evidence of crimes committed.
When Obama took office, he faced massive pressure to investigate the illegal torture regime set in place by the George W. Bush administration as part of its global war on terror. Attorney General Eric Holder appointed John Durham as special counsel to investigate the CIA for authorizing and carrying out Bush’s torture policy. Durham ultimately did not issue any indictments.
Durham now serves as the special counsel appointed by Barr to investigate whether the FBI engaged in any wrongdoing during the Obama administration when it initiated the probe into whether Trump was personally involved with the Russian hacking of the Democratic National Committee.
That most everyone got off scot-free in these investigations ― where law-breaking could legitimately be found ― reinforces the fear of elite impunity that took hold with the Nixon pardon. Still, these investigations show that it is not out-of-the-ordinary or, in any way, unprecedented for an incoming administration, or a new Congress, to look backward at a prior administration’s wrongdoing. And the fact that previous offenders were not held accountable is all the more reason to hold Trump answerable now rather than continue to give the most powerful a pass.