ACCOUNTABILITY AND REFORM AS AND AFTER THE TRUMP ADMINISTRATION COLLAPSES

     To follow the Democratic, liberal, or Progressive independent media is to know their commentators’ eagerness to hold Trump administration officials, especially higher-ranking ones, and Trump-hired employees accountable for their misdeeds.  They want them investigated, prosecuted, and, if warranted, convicted and sentenced to prison for whatever federal crimes for which Trump has not pardoned them and for whatever state crimes for which he cannot pardon them.  They want DOJ lawyers, pardoned or not, who served Trump as their client, disbarred, disbarment being a state prerogative beyond the reach of a presidential pardon.  They want to replace Trump’s non-criminal political hacks and hires in order to reconstitute departments, agencies, and boards with competent, dedicated people.  These leftist commentators can thank the Supreme Court for presidential authority to clean up the Executive Branch.  Ironically, such practices to render accountability will be in full accord with the theory of the unitary executive which SCOTUS has implemented in many of its worst decisions.  Yet they might be a problem.

Reformers are rightly passionate about effecting reforms, but proposed reforms face difficult obstacles, both legislative and Constitutional, in the near term, before 2028, and hardly less difficult ones in the years thereafter.  These obstacles will likely be accompanied by internal disagreements about what reforms they should undertake, what priorities they should assign them, how incremental or radical they should make them, how they can implement them, and how they can secure support for them.  Until reformers can decide on an agreed-upon an agenda addressing these areas of potential disagreement, they risk discord, diffusion of energies, and defeat.  And, of course, opponents of reforms will exploit these disagreements to hinder them.

 

Reformers want to address many areas corrupted by the Trump administration, but they should give priority to restoring the rule of law in the Supreme Court and the Department of Justice.  Otherwise, a new Democratic administration will face obstacles to holding Trump administration officials and hires accountable under the law and to effecting other reforms.

 

Part of restoring the rule of law is reforming the Supreme Court.  One proposed reform is enlarging the court, which requires no Constitutional amendment, only legislation.  Democrats should avoid or oppose this reform until they win the presidency and win or hold the Senate in 2028.  Although presently most unlikely, this Republican president and Republican Congress could pass such legislation, which would enable Trump to nominate and Senate Republicans to confirm additional reactionary justices to the Court, thereby compounding the problem of a Court already gone rogue.

 

The primary motive for this reform is to overcome the disastrous reign of six conservative judges, all Republican appointees.  They have embraced the unitary executive theory and thereby enhanced the power of the presidency, to include immunity from misconduct in office, and have undermined both the ability of citizens to seek judicial redress of grievances and, more generally, democracy itself, as its rulings on gerrymandering and the Civil Rights Act, among others, prove.

 

There would be little need to expand the Court only to counter the baleful influence of the six conservative Republican justices if they were impeached.  Every one of them merit impeachment because each one of them has committed “high crimes and misdemeanors.”  They have perjured themselves by lying to the Senate during their confirmation hearings about their allegiance to precedent or settled law; all testified that they believed in stare decisis, the judicial principle which honors precedent.  The evidence is their many votes overturning previous court decisions.  They have been corrupt; several have accepted benefits from outsiders and, contrary to the law, failed to report these benefits.  Evidence for these charges is already part of the public record.  If any of them resigns to forestall or avoid impeachment proceedings, proceedings should continue to ensure their public disgrace by official repudiation and their permanent disqualification from any public office in the future.  Impeachment would have the benefit not only of punishing them, but also of setting a standard for future nominees and confirmed justices.  However, Republican opposition in Congress would preclude impeachment before 2028 and would make it only remotely possible thereafter.

 

The secondary motive for this proposal is that the workload of the Court has increased so much in the past several decades.  The need for this proposal can be reduced by Congressional legislation restricting the scope of the Court’s jurisdiction to only those items specifically mentioned in the Constitution—again, a difficult task in the face of Republican opposition.

 

Other proposed reforms are term limits—18 years is often suggested—and staggered tenures.  Since the Constitution stipulates lifetime appointments to the Supreme Court, this reform would require a Constitutional amendment, the Congressional passage of which would have little or no chance of success.  Some have suggested that legislation could reassign Supreme Court justices to appellate courts after 18 years.  But the Court would likely rule that the lifetime guarantee is to positions on the Supreme Court only, not also to alternative federal court positions.  However, a legislative work-around exists: an age requirement.  Congress could pass a law requiring that justices be at least 65 years old to sit on the court.  Mortality rates for those of that age is about 18 years.  However, the irregularity of deaths would deny the possibility of staggered tenures.  Still, there are advantages.  One is that nominees would have extensive records as judges or would appear unprepared for the position.  Another is that the regular rotation of justices might avoid entrenchment of judicial doctrines and outdated precedents.  Republicans occupying the presidency or controlling Congress would not likely support such a bill.

 

Other reforms of the Supreme Court might define precise limits on the use of the “shadow docket” and require published rationales for all Court decisions; and establish criteria for Senate confirmation, which the President would have to consider in making nominations, like years of experience and percentage of votes for decisions reversed by higher courts.  Reforms by judicial decisions are necessary to reverse the many perverse decisions rendered both in open court and in the “shadow docket,” but these reforms might be beyond the capability of Congress.

 

Restoring the Department of Justice, including the FBI, requires reforming their relationships with the Executive and Legislative Branches, best by making it an independent agency.  More, Congressional legislation should attempt to re-establish previously independent agencies and establish new ones deemed necessary by legislating that their independence alone is beyond the reach of Court jurisprudence—a proposal which might have enough support from Republicans to pass in Congress but would have no support in the Trump administration.  Simultaneously, all Trump officials and hires should be dismissed with prejudice from government service, and replacements hired from those previously employed by DOJ or the FBI and others whose objectivity in matters of legal practice can be established.  The same firing and hiring procedures should be applied to all Executive Branch departments and agencies.  In addition, all Inspectors General should be employees, not of their departments or agencies, but of DOJ, so that their work is independent of department secretaries or agency heads.

 

Two other reforms should target anti-democratic institutions or procedures.  One is eliminating or neutralizing the Electoral College.  Again, a Constitutional amendment is now out of the question.  But it might be possible for a Democratic administration to persuade enough additional states to subscribe to the National Popular Vote Interstate Compact, “an agreement among U.S. states and territories to award all their electoral votes to the presidential candidate who wins the overall national popular vote, regardless of individual state results” (Wikipedia).  Current signatories represent 232 electoral votes; with only 48 more required, a combination of a few large states like Arizona (11), Michigan (15), Ohio (17), Pennsylvania (19), and Wisconsin (10), and perhaps a few small states like Nevada (6) and New Hampshire (4) would be sufficient to make the compact effective.  In 2028, a Democratic administration and Congress might, with the consent of signatories, enact legislation making this compact virtually irreversible until a Constitutional Amendment becomes feasible.

 

Another is the end of the Senate filibuster.  This procedure is anti-democratic.  Ending it has the advantage of restoring majority rule.  Moreover, by assigning clear responsibility for party-line majority votes on legislation and confirmations, it might encourage cross-party collaboration as the majority party might want minority-party input on legislation to reduce, if not eliminate, adverse effects.  Its demise would not be dangerous; other democracies have done just fine without a nefarious device which enables minority rule.

 

However, there is a danger of going too far in seeking accountability.  The eagerness to hold administration personnel accountable must not replicate, thus perpetuate, the abuses of the Trump administration.  The methods of dealing with Trump officials and hires must adhere to the highest standards of justice to disarm charges of weaponization of the legal system.  Moreover, reformers must be aware of and work to avoid the danger not only of perpetuating presidential powers enlarged by Trump, but also of expanding them, as presidents have often done with the powers of their predecessors.  The next, presumably Democratic, president must not only eschew such enlarged powers, but also work with Congress to legislate their removal from the Executive Branch, with prompt, severe penalties for violations.  Otherwise, the threat to democracy which these enlarged powers pose will remain.  In short, accountability and reform, whatever the good intentions and intensity of these efforts, must be equally ethical and restrained.  Which means that the character of those seeking accountability and reform must be above reproach and demonstrate integrity, humility, and a commitment of public service which overrides personal ambition.