How to Hold Trump Accountable
The extent of the former president’s corruption may be too great for Americans to fathom.
A torrent of new revelations is filling in the picture of how Donald Trump used, and abused, his authority as president. But the disclosures may serve only to underscore how little remains known about all the ways in which Trump barreled through traditional limits on the exercise of presidential power—and highlight the urgency of developing a more comprehensive accounting before the 2024 election, when he may seek to regain those powers.
The steady flow of discoveries over the past few weeks has been damning. Emails show how both Trump and his White House Chief of Staff Mark Meadows pressured the Justice Department to support the former president’s baseless claims of widespread voter fraud in 2020. A previously unheard tape captures how Rudolph Giuliani, as Trump’s attorney, explicitly pressured Ukraine to manufacture an investigation against Joe Biden—the issue that prompted the former president’s first impeachment. Even more ominous has been the disclosure that the Justice Department under Trump subpoenaed communications records of journalists, Democratic members and staffers in the House of Representatives, and even Trump’s own White House counsel, all without their knowledge.
The revelation of that sweeping surveillance, in particular, has triggered a uniform reaction among many who have most closely tracked Trump’s ethical and legal record: If a program that consequential and potentially egregious is surfacing only after he left office, there is likely much more that remains undiscovered.
“When the news broke about the congressional revelations, I was actually on television shortly thereafter … and I told the host, ‘This is just the tip of the iceberg; there will be more,’” Norm Eisen, who served as a special counsel to the House Judiciary Committee during Trump’s first impeachment, told me recently. “Certainly, someone who would target the news organizations and target Congress would do much more.”
John Dean, a pivotal figure in shattering the Watergate cover-up as Richard Nixon’s White House counsel, agreed. “He is such a harsh taskmaster and is so vicious about leakers and disloyalty that I think his inner circle is terrified of him and remains that way, and for that reason we know very little,” Dean told me this week. “Is there more? You bet.”
Trump’s behavior remains the subject of multiple investigations in both chambers of Congress, as well as by the Manhattan district attorney and the New York State attorney general’s office (which is examining financial manipulation at his company), and by the district attorney’s office in Fulton County, Georgia, which is probing his pressure on state officials there to overturn the 2020 election results. Federal investigators are examining whether Giuliani violated lobbying laws in his dealings with Ukrainian officials.
The House Judiciary Committee announced this week that it would hold hearings on the administration’s acquisition, during a leak investigation, of communications records of journalists and members of Congress. (The Justice Department’s inspector general is also investigating.) And after Senate Republicans blocked a bipartisan commission to investigate the January 6 insurrection, House Democrats appear likely to launch their own inquiry into the attack.
But it’s an open question whether these disparate investigations, proceeding on multiple tracks and operating under divergent rules, will provide a comprehensive picture of all the ways in which Trump used, and potentially misused, his authority during his four years in office.
Noah Bookbinder, the president of Citizens for Responsibility and Ethics in Washington, a left-leaning nonprofit group that studies ethical abuses, says that a more systematic approach is needed to understand the breadth of Trump’s impact on the federal government. “As best as we can tell, this was a co-opting of the entire federal government for the political and personal advancement of one person and those around him,” he told me.
To Bookbinder, the common thread in all of the scandals—from Trump’s pressuring of Ukraine to the new revelations about his DOJ obtaining communications data—is a consistent effort to enlist every element of federal power for his personal and political benefit (a dynamic I’ve examined before). Trump, Bookbinder noted, did much of that in full public view. He pardoned Roger Stone and Paul Manafort, political allies who refused to cooperate with Special Counsel Robert Mueller’s investigation. Trump companies also famously billed the government for costs associated with stays at properties he owned.
The evidence already available, Bookbinder said, shows that Trump’s determination to use federal power to benefit him and his allies was felt in every corner of government. That demands a more systematic investigation, he argued, of how the full range of government agencies made decisions that helped political allies, well-connected lobbyists, or businesses associated with Trump himself.
Dean took a similar view. “The Nixon presidency is unique in that you had, first of all, the Senate Watergate committee, then the House impeachment inquiry; you had a Watergate special prosecutor and his taping system—that’s a remarkable record of a presidency in finding out what they did was wrong,” he told me. By comparison, “there’s not a fraction of that kind of knowledge” on Trump, he believes.
It’s not easy, though, to identify an investigative approach that could effectively fill in that picture.
One option, Bookbinder told me, would be for the Biden administration to create some kind of independent, blue-ribbon commission to examine abuses at each federal agency—or to assign each agency’s inspector general with responsibility for documenting conflicts of interest or other problems. But he and other experts note that the administration is highly unlikely to pursue such a course, because Biden wants to be seen as looking forward, rather than retrying the behavior of his predecessor. If anything, Biden’s Justice Department has frustrated some congressional Democrats and liberal activists by arguing, on institutional grounds, against releasing Trump’s tax returns and former Attorney General Bill Barr’s memo justifying the decision not to indict the former president for obstruction of justice in the Russia probe.
Still, even some stern Trump critics support the Biden administration’s caution. Eisen, now a senior fellow at the Brookings Institution, told me that the need for “a full and fair accounting” must be balanced against “the long-standing norm of not using the Department of Justice as a tool for perceived retaliation against a vanquished presidential candidate.” For at least the next few months, Eisen said, the best course is to see what “emerges organically” from the assorted state, IG, and congressional investigations already under way. “Let’s give it another few months to unfold,” he said. “Then it will be time for a gut check when we are about a year in [to the Biden presidency]: Do we feel that the truth is naturally emerging, or do there need to be additional efforts to accelerate [those disclosures]?”
For those who want a more coordinated approach, Congress might provide another option. But winning approval for a far-reaching congressional investigation seems impossible now that Senate Republicans have filibustered even an independent investigation of the January 6 attack on the Capitol; if they won’t authorize an investigation of an attack in which they were the targets, they’re not likely to green-light one that ranges more broadly over Trump’s record.
A third model sometimes discussed is a “truth commission” or other “commission of inquiry” like the ones that more than 40 countries have established in recent decades. But the model applies imperfectly to the Trump situation. Usually created in countries emerging from authoritarian governments, these commissions have “typically been focused on gross violations of human rights, killings, disappearances, torture, and the like,” notes Neil Kritz, a senior scholar at the U.S. Institute of Peace, which maintains a comprehensive database of such efforts. (The most famous examples of such “truth” commissions have included South Africa, Argentina, Chile, and Peru.) Only rarely, Kritz adds, have countries also examined corruption and the misuse of government resources in prior regimes.
But while the structure and focus of such commissions don’t exactly apply to the Trump example, their underlying motivation may be relevant. “They are all based on an assumption that for society to be able to heal, it needs to deal with its demons, it needs to confront its past, and to simply sweep it under the rug will result in long-term, ongoing problems,” Kritz told me. “In a best-case scenario, a truth commission forces society to take a look in the mirror.”
That closely parallels the argument from those who want a more aggressive examination of Trump’s behavior. Republicans have dismissed calls for new investigations of Trump’s actions as unnecessarily relitigating the past; Senate Minority Leader Mitch McConnell, for instance, used that argument to oppose not only a January 6 commission, but even the calls for Barr to testify about the surveillance revelations. But Bookbinder, Eisen, and others argue that far from looking back, a more comprehensive accounting of Trump’s behavior is required to diminish the odds that the abuses will recur, whether Trump runs again or not. “Ultimately, it’s not about relitigating the past,” Bookbinder said. “If you are going to protect your democracy in the future from being abused and ultimately being chipped away at, you have to understand the abuses that have happened before, you have to make that public, and you have to take concrete steps to protect against the same kind of abuses in the future. But you can’t do that if you don’t know what they were.”
If an official “truth commission” is off the table, another option might be an informal citizens’ commission of prominent figures to catalog the record, notes Susan Stokes, a political-science professor and the director of the Chicago Center on Democracy at the University of Chicago. Although such a commission would not have investigative power, it could pull together the continuing flow of revelations into one revealing document, she says. “There’s a lot we don’t know yet, and we are learning more every day,” she told me. “But there is a lot we do know. A broad-ranging report, written by people who are private individuals and widely admired and weighty and bipartisan … to say, ‘Here is what happened,’ that is something that may attract a fair amount of interest.”
In the meantime, the most likely venue for a comprehensive debate over Trump’s use, and abuse, of executive power might come through sweeping legislation, called the Protecting Our Democracy Act, that House Intelligence Committee Chairman Adam Schiff (one of the members whose records the Justice Department targeted) introduced in the previous Congress. The bill, which he’s expected to reintroduce shortly, looks to plug a series of holes that Trump exploited (or expanded) in ethics laws. Through 12 titles, it seeks to address abuses of presidential pardon power; bar payments from foreign governments to a president or his business interests; strengthen Congress’s ability to enforce subpoenas against the executive branch; record a president’s contacts with the Justice Department; protect the independence of departmental inspectors general; and extend the statute of limitations for postpresidential prosecution of misdeeds while in office, among other things.
Although Trump “no longer sits in the White House, we cannot ignore or simply move past those abuses without addressing the vulnerabilities in the system that he exploited,” Schiff said in an emailed statement yesterday. “And that means enacting many of the guardrails we thought were sacrosanct into law. The failure to do so would leave the justice system once again prey to an unscrupulous executive.”
The legislation is a panoramic attempt to respond to the many ways Trump shredded constraints on the exercise of presidential authority. But, by definition, it can respond only to the actions that are known. The big lesson of the DOJ-surveillance revelations is that more questionable Trump behaviors we don’t know about almost certainly exist—that, as former Defense Secretary Donald Rumsfeld once put it, there are “known unknowns” about how Trump utilized power. Creating a more complete record of those abuses would be the first step toward preventing their recurrence.