What comes now that the "FDR 2.0" phase of Biden's Presidency is over?

Joe Biden as President is definitely Not As Bad As Donald Trump.

But I'm afraid Joe Manchin's segregationist alliance with the Republicans means that we're back in the position that Obama found himself: The Democrats control the Presidency and both Houses of Congress but can't pass their own legislation.

Obviously, there will be some things like the military budget that will gain Bipartisan support. But for major initiatives, the party that controls the Presidency and both Houses of Congress is restricted to using the "reconciliation" procedure that they used for the COVID Relief bill for infrastructure or longterm green economic programs.

And there are limitations on the reconciliation rule, also buried in genuinely arcane Senate procedures. There is a parliamentarian who works for Senate Majority Leader Chuck Schumer who gives nonbinding advice on what can be included in reconciliation and not. Schumer could fire the parliamentarian and hire a new one. Vice President Kamala Harris as the chair of the Senate could overrule the parliamentarian's recommendations. But they've so far chosen to hide behind the non-elected parliamentarian who given nonbinding recommendations.

That's not on Joe Orbán-Manchin. That's on Harris and Schumer.

And it's also on Joe Biden. The Democrats' constant invoking of bipartisanship muddles their own message in any case, particularly when the Republicans have spent decades showing their complete contempt for any "bipartisanship" that isn't Democrats completely surrendering to Republicans.

But Biden used his own experience in making deals with Republicans like Strom Thurmond a major element of his political pitch, both in the Democratic primaries, as a major selling point for his candidacy.

Promising successful bipartisanship is foolish in this environment. Because the opposition party controls whether you can fulfill that promise. And Mitch McConnell has been mocking Biden for not achieving bipartisanship as he openly declares his partisan objective is to block Biden's agenda.

Reporters and political junkies and partisan activists love immersing themselves in this stuff. But for most voters, even partisan voters, it means the Democrats are sounding a proverbial uncertain trumpet. What voters see, though is:

• The Democrats control the Presidency and both Houses of Congress but can't pass their own legislation.
• The Democrats control the Presidency and both Houses of Congress but can't pass their own legislation.
• The Democrats control the Presidency and both Houses of Congress but can't pass their own legislation.

And, yes, the Republicans will use the Democrats' ineffectiveness in controlling the Presidency and both Houses of Congress but can't pass their own legislation as evidence of their weakness.

What this means is that Biden's aggressive use of Executive power and his administration of the government to achieve important aims so far as that is possible.

But it also means that for at least the next year and a half, it will be a struggle for Democrats and people on the left who would like to see the Democrats' more progressive policies advanced to parse the constructive parts of the Biden-Harris Administration.

Here's an example of the challenge.

Attorney General Merrick Garland's Justice Department is required to uphold the rule of law. This is not an essentially partisan point, because that's its job in the American legal and Constitutional system. But in the era where democracies worldwide are facing authoritarian challenges, i.e., fascist-like challenges, undermining the rule of law is a major goal of the authoritarians. So, in that sense, defending the impartial rule of law becomes itself a partisan issue.

A critical failing of the Obama Justice Department was not prosecuting obvious crimes of the Cheney-Bush Administration, particularly the torture crimes. I haven't seen explicit reporting on this. But Obama even before he took office was using his infamous look-forward-not-backward slogan to justify giving effective impunity from prosecution for the previous President and his administration. So it's a circumstantial judgment. But given the well-publicized corruption (remember Halliburton?) and various abusive conduct in the Cheney-Bush Administration, and given Obama's explicit and repeated invocation of the look-forward-not-backward formula, it's very hard to believe that Obama's Justice Department was not acting on his direction to not enforce the rule of law in those very high-profile cases. (Related: Obama admits CIA 'tortured some folks' but stands by Brennan over spying Guardian 08/01/2014)

Garland's Justice Department is doing better. There have been hundreds of arrests of accused participants in the treasonous attack on the Capitol of January 6. (Although I don't believe anyone has literally been charged with treason yet.) Justice seems to be taking a normal course on those prosecutions.

And I've also seen no indication that the Justice Department is trying to impede the normal investigations of US Attorneys (who are part of the Department) from pursuing legitimate criminal investigations involving Trump's businesses.

Those are all good signs. Another is not directly related to the Justice Department, but is a very good sign: Zoë Richards, Biden Moves To Begin Closing Guantánamo Bay TPM 06/09/2021. Obama had also promised to end this blight on the rule of law by the US, and made a bid in 2009 to do so, but backed away in the face of Republican opposition. To be fair, it really was a bipartisan opposition, to the disgrace of all the Democrats who supported that, when Obama made a bid in 2009. The Senate voted 90-6 against Obama’s proposal. (Spencer Ackerman, ‘No one but himself to blame': how Obama's Guantánamo plans fell through Guardian 02/24/2016)

And just to be clear: the 90-6 vote in the Senate to limit Obama's ability to close out the Guantanamo disgrace is extremely unlikely to have happened if Obama wasn't sending strong signals to the Democrats that he wanted to see a strong vote against it, despite his official public position. Bipartisanship!

On the other hand, The Justice Department does have to make decisions about which cases to prioritize. And if the Department has been pursuing a dubious or even fraudulent case, they are also required to put a stop to it. In this case, Garland's Justice Department is making a disturbing call: Jeff Hauser and Max Moran, Why Is Merrick Garland Defending Donald Trump? New Republic 06/08/2021

Shaunna Thomas of Ultraviolet tweets:

Another important and detailed response for all of you persuaded by the defense of the @DOJPH's decision to protect Trump's right to slander a rape survivor.

The House Judiciary agrees and sent a letter to Merrick Garland urging him to stop acting as Trump's personal attorney. https://t.co/fkbpwjPrfO

— Shaunna Thomas (@SLThomas) June 9, 2021

And there's this: Olafimihan Oshin, DOJ says it can 'vigorously' defend exemption to anti-LGBT discrimination laws for religious schools The Hill 06/09/2021. I'm not familiar enough with the case to evaluation the following. But the Department claims they are doing this to defend LGBTQ rights! "The Justice Department is not only following its general obligation to defend federal laws; it’s also trying to prevent a Christian organization from taking over the defense and mounting extreme arguments that could lead to a devastating subversion of civil rights law." (Mark Joseph Stern, No, the Biden Administration Isn’t Betraying Its Support for LGBTQ Rights Slate 06/09/2021.

I sometimes find Rachel Maddow's chronically perky style annoying. But she addresses some of the relevant issues around the Biden-Garland Justice Department in Trump Corruption of DOJ Lingers Under Garland, Risks Precedent MSNBC 06/09/2021:

The brief "FDR 2.0" phase was nice while it lasted. Now we're into the Democrats-control-the-Presidency-and-both-Houses-of-Congress-but-can't-pass-their-own-legislation phase.

Biden-Harris Justice Department protecting former Secretary of Education Betsy DeVos from accountability for official misconduct?

There will be good and bad things about the Biden-Harris Administration. This is one of the bad ones: Michael Stratford, Biden administration backs DeVos in fight over testifying about loan forgiveness Politico 02/10/2021.

The case has to do with students who were defrauded by for-profit college who were stuck with student loans that the Obama-Biden Administration had decided should not be collected. DeVos refused to enforce the debt relief once she became Secretary of Education.

Danielle Douglas-Gabriel a year ago provided background information on the lawsuit involved (DeVos and Education Dept. could face new sanctions for violating a court order Washington Post 01/08/2020:

A federal judge is weighing higher fines for the Education Department after the federal agency disclosed that it pursued scores of additional borrowers for debt collection — violating a court order.

Magistrate Judge Sallie Kim of the U.S. District Court in San Francisco agreed this week to consider a request by former Corinthian Colleges students to increase the $100,000 fine she levied against the department in October. The judge imposed those sanctions and held Education Secretary Betsy DeVos in contempt for pursuing loans owed by 16,000 students from the defunct for-profit chain despite a May 2018 order halting collections.

Stratford piece from this week describes the current situation:

The Biden administration is backing former Education Secretary Betsy DeVos as she tries to avoid having to testify in a lawsuit challenging the Trump administration’s lengthy delays and sweeping denials of student loan forgiveness claims.

The Justice Department joined with DeVos on Monday to fight a subpoena seeking her deposition as part of a class-action lawsuit brought on behalf of some 160,000 former for-profit college students seeking loan forgiveness on the grounds that they were defrauded.

DeVos is no longer the defendant in the lawsuit since she resigned from office Jan. 7 in the wake of the Capitol riots. But lawyers for the student borrowers say they need her testimony to get to the bottom of why her agency for years slow-walked the loan forgiveness claims and then began churning out denial letters with little explanation.

Democrats for four years slammed DeVos’ handling of student loan forgiveness for defrauded borrowers under a program known as “borrower defense to repayment.” President Joe Biden has vowed to reverse DeVos’ approach and restore Obama-era policies that were designed to more easily relieve the debts of students who were misled or cheated by their college.

But the Justice Department under the Biden administration is now coming to DeVos’ defense in the lawsuit, teaming up with her personal attorney this week to fight the subpoena compelling her testimony.

This is bad in itself because DeVos shouldn't be protected from legitimate requests for testimony. If she is worried about incriminating herself, she can plead the Fifth Amendment. It's also bad because it indicates that Biden hasn't lost all of his fondness for draconian laws against debtors that resulted in his notorious support of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Seventeen other ConservaDem Senators joined Biden in supporting it. Two of them, Tom Carper of Delaware and Debbie Stabenow of Michigan, are still serving. Some of the better-known among the others were Evan Bayh of Indiana, Robert Byrd of West Virginia, Daniel Inouye of Michigan, Herb Kohl of Wisconsin, Bill Nelson of Florida, and even Harry Reid of Nevada.

More ominously, it may also be a signal that Biden's Justice Department may be sympathetic to de facto immunity of former Trump-Pence Administration officials from valid legal requirements. And that would be very bad.

Ana Kasparian and Cenk Uygur of TYT have a "salty" take on Biden's Justice Department siding with now-private citizen Betsy DeVos in this matter, Biden Protecting Betsy DeVos ... 02/11/2021 broadcast:

Processing the Trump era: justice vs. reconciliation?

Colleen Murphy, a specialist in transitional justice efforts, applies that framework to our post-Trump, post-Capitol-insurrection era in How Nations Heal Boston Review 01/21/2021.

A growing chorus of voices, for example, now insists that we hold Trump and members of his administration accountable for pressuring elected officials to change vote tallies, for political corruption, and for his child separation policy at the border. Likewise, calls to invoke the 25th Amendment and impeach Trump followed the mob violence at the Capitol. As so many have pointed out, however, too exclusive a focus on Trump risks treating his administration as an abnormality of U.S. history rather than as a product of conditions that preceded him and that will surely persist when he is no longer in office. Perhaps most familiar among the larger targets of reckoning is the long legacy of racial injustice. As was once again on display last summer, arguably the largest protest movement in U.S. history, Black Lives Matter, has long demanded accountability for police violence and for generations of racial injustice, from slavery to the present day. 

This impetus to dig deep into our past is one we should heed: as a society we need to look back first if we are to be able to move forward. This is not only a matter of political strategy in the quest for a just society. It is also a central insight of the ethical framework known as transitional justice, an overlooked but essential resource in the effort to secure the integrity and legitimacy of American democracy.

With special reference to Colombia, Murphy reviews some major relevant concepts like transitional justice, restorative justice, retributive justice, and truth-and-reconciliation processes. She also has an interesting discussion of psychologist Stanley Cohen's ideas on the various forms of denial of injustice.

With Trump leaving the White House in utter disgrace with an impeachment trial pending and the legal processes against the January 6 Capitol insurrectionists still in the early stages, I'll take the occasion to mention that it's critical for the President and all members of the government be held accountable for obeying the law. I'm not talking about jaywalking tickets or fines for letting their dog poop on the sidewalk, but serious crimes of corruption, miscarriage of justice, kidnapping the children of asylum-seekers, incitement to insurrection.

That means that even Presidents need to be held accountable, and not just by an essentially political process like impeachment and conviction. That doesn't mean that impeachment should be used in trivial partisan ways, but that the Constitution sets it up as a broadly political function of the Congress within the government's defined division of powers, not as a judicial process..

Despite the earnest efforts of the January 6 Republican lynch mob in the Capitol, we have not have had a change of the fundamental national government. We're not starting from scratch with a new Constitution. We haven't just had an actual civil war, even though hardcore Trumpists might like to put it that way. The Justice Department is still capable of conducting independent investigations and prosecutions, as are state attorneys general. The de facto impunity that members of the Executive Branch including the President have too often enjoyed is wrong. And it's destructive to the basic rule of law.

Part of what that means is that however many historians' commissions or special Congressional hearings on the Trump Presidency we may have, prosecution of actual serious crimes is essential. Otherwise, Republican officials will feel even more entitled to flout the law in their official positions.

I stress Republican officials there because the Democratic Obama-Biden Administration took a "look forward, not backwards" position toward crimes of the Cheney-Bush Administration, a policy that surely involved at least a dereliction of duty on the Justice Department's part. What crimes? Those committed in connection with the Iraw War and the deceptions used to justify it ton Congress and the public;, the torture crimes in Afghanistan, Iraq and Guantanamo; and massive corruption. On the later, I'm reminded of a protest song I heard once in the 2000s that included the line, "Halliburton, Halliburton, Halliburton/What else do I have to say?"

In terms of Constitutional issues, I would say this was the worst and most consequential failure of the Obama-Biden Administration. Even though their record on civil liberties was pretty terrible, too..

In that light, this is a particularly interesting observation from Murphy:

What is notable about the Colombian case is that its set of processes for dealing with wrongdoing jointly pursue the central pillars of transitional justice: truth, justice (in the form of accountability), reparations, and institutional reform. Rather than framing the choice between a truth commission and a criminal trial in oppositional terms, the processes are designed to be complementary. Transitional justice theory and practice no longer view the choice societies must face as one between truth and justice but as one that pursues truth and justice in tandem. It is important both to tell the truth—to document the pattern and extent of human rights violations and the conditions that enabled their occurrence, as the Colombian truth commission does—and to achieve justice: to hold perpetrators to some kind of account, as the JEP [the Colombian Special Jurisdiction for Peace] aims to achieve. {my emphasis in bold}

She also suggests that the experience of the Trump years including the storming of the Capitol on January 6 might (or at least should!) discourage the narrowly-nationalistic notion known as American Exceptionalism, another of the Republicans' favorite magical conjuring phrases:

To some extent, the 2020 elections and Trump era have blunted that sense of exceptionalism. Moreover, amidst widespread disagreement about just about everything, few Americans would dispute the claim that our society is characterized by deep, and deepening, political divisions. Our institutional fragility creates precisely the kind of serious existential uncertainty characteristic of transitional contexts.

Yet exceptionalism persists and was on display in many reactions to the storming of the Capitol, which emphasized that “this is not who we are” and characterized the violence as a feature of “banana republics” or the “Third World.” Of a piece with such reactions is a common conflation of our ideals with our practice, which is then used to discredit any proposed critique. To focus on where we have, in fact, done wrong or failed to live up to our ideals as a nation is not to reject those ideals; indeed, very often the ideals themselves provide the basis for explaining our failure. Pointing this out is not to reject our ideals, but rather to reject American acts that do not live up to them. [my emphasis]

The Republican Party owns Trump

Chris Hayes on his All In Show interviewed Congresswoman Ilhan Omar, who spoke about responsibility for the terrorist raid on the Capitol building Wednesday at the direct, immediate incitement of Republican President Donald Trump, Rep. Omar Says Republicans Who Enabled Trump ‘Have Blood On Their Hands’ MSNBC 01/07/2021:

Peter Wehner writes (Republicans Own This Insurrection The Atlantic 01/07/2021), "President Trump is the architect of this insurrection, but so are his acolytes."

Wehner rightly points to the Republican Party and the larger movement and the ways its authoritarian tendencies, though he doesn't use that phrase. But I actually think he casts his rhetorical net so wide that it tends to diffuse the responsibility far too much. I'm not inclined to give Trump voters any excuses. But there are millions of voters who are a long way from being political junkies. People learn pretty early on in life to give cautious and vague reasons for their political choices and opinions. But there are a wide range of factors affecting people's political opinions.

Including name recognition. So Trump in 2016 had the dual advantage of being a famous face with a vaguely defined political profile. A lot of people could project a variety of different expectations onto him. And his opponent Hillary Clinton was a well-known figure, which gave her both advantages and disadvantages. I would argue that Trump's genuinely irresponsible, chaotic behavior gave any voter strong reasons to vote against him. But it makes no sense to blur the level of responsibility an individual voter carries for the Trump nightmare with that of senior elected officials, Cabinet members, or senior advisors.

The Republican Party has been remolding itself into a more and more authoritarian party for years. And into a more and more lawless one. So looking at important figures in the Republican Party - and their alibis - is very necessary and important, as Wehner does here:

We will now hear a conga line of Republicans and people on the right—the very ones who in one way or another empowered this malicious president—condemn Trump, less than two weeks before he leaves office. They will act shocked—shocked!—that Trump incited the mob and then condoned what it did. Some of them will act as if no one could have seen this coming; others will tell us it was inevitable, even as they didn’t lift a finger to stop it. They will reach for words to express their horror, their sadness, their moral outrage.

“This is what you’ve gotten, guys,” Senator Mitt Romney of Utah said to his colleagues who were promoting the president’s conspiracy theories in Congress as the siege unfolded. “This is what the president has caused today, this insurrection,” he said later.

But here’s the thing. Mitt Romney stood almost alone among elected Republicans during the Trump presidency. He was viewed as a pariah, a troublemaker, a traitor, a RINO (“Republican in Name Only”). So were a few others who don’t serve in Congress but who have been part of the Republican Party for their entire adult lives, and who could not stay silent as Donald Trump took a blowtorch to our country and its ideals. [my emphasis]

Mitt Romney was the only Republicans Senator to vote for impeachment, so he distinguished himself as a Trump critic in that way. In terms of his politics and his class perspective, Romney is a plutocrat who believes in government of, by, and for plutocrats. But in Trump's case he was willing to stick with the rules of democracy and rule of law, however fine he may be with the way money distorts that system in practice.

But whether Republicans say the right words or not is not nearly so important as legal accountability for those members of the Trump Administration who committed serious crimes, and those connected to them. Without that, no amounts of pious statements from Republican politicians about the claimed principles will make much difference at all. The Republican Party of January 2021 is an anti-democracy party that is willing to allow Republican Administrations to operate as crimes syndicates.

No matter how unpleasant it may be for the Biden-Harris Administration, they and the Democratic Congress have a responsibility to see that the criminals of the Trump-Pence Administration face legal consequences, including not least for the Trump goon squad's storming of the US Capitol this past Wednesday.

Adam Klasfeld looks at legal impolications of the Capitol invasion in As Reports Say Trump Has Discussed Self-Pardon, Federal Prosecutor Doesn’t Rule Out Investigating Trump’s Role in Capitol Riot Law and Crime 01/07/2021:

Acting U.S. Attorney Michael Sherwin answered in the affirmative when asked a direct question about whether his probe would examine incendiary statements by speakers at Trump’s rally before his mob of supporters.

“Yes, we are looking at all actors here, not only the people that went into the building, but […] were there others that maybe assisted or facilitated or played some ancillary role in this. We will look at every actor and all criminal charges,” Sherwin said, in a quote excerpted by the Washington Post.

Trump urged the mob to “fight like hell,” during a speech delivered shortly before throngs breached the Capitol, destroying property, ransacking lawmakers’ offices, and menacing officials. Four were dead in its wake.

David Yaffe-Bellany and Chris Dolmetsch report for Bloomberg News (Trump’s Role in Capitol Riot May Figure in Criminal Probe 01/07/2021) that 55 fedreal charges have so far been filed over the Capitol storming. And also:

Asked whether the U.S. Attorney’s office would scrutinize the president’s role in inciting the storming of the Capitol, Michael Sherwin, the acting U.S. Attorney in Washington, said at a press conference that “all actors” are being looked at.

“Anyone that had a role, and the evidence fits the elements of a crime, they’re going to be charged,” Sherwin said.

Trump addressed a crowd Wednesday and urged his supporters to go the Capitol, saying they would “never take back our country with weakness.”

The violent mob then stormed the Capitol, charging past police barriers, smashing windows and sending lawmakers fleeing for safety. The riot, which resulted in four deaths, forced members of Congress to temporarily abandon their formal certification of President-elect Joe Biden’s victory in the November election.

Bryce Klehm and Rohini Kurup have a blog post to link to federal criminal charging documents on the Capitol invasion, Compiling the Criminal Charges Following the Capitol Riot Lawfare 01/07/2021

Serious crimes need to be prosecuted, Trump's Georgia extortion call edition

Katie Couric interviews Neal Katyal on Trump's election-theft phone call to Georgia's Secretary of State, Former US Acting Solicitor General Neal Katyal: ‘Donald Trump Sounds Like A Mob Boss’ 01/05/2021:

Katyal states a one point that he assumes it as given that Trump will try to pardon himself on the way out the door. Although a President's ability to pardon himself has never been put to a legal test, Katyal believes the President has such a power.

Rhode Island Democratic Sen. Sheldon Whitehouse started the new year by argueing straightforwardly against impunity for Trump Administration crimes in Sen. Sheldon Whitehouse, Why we can't just "move on": We need accountability for Donald Trump's misdeeds Salon 01/02/2021:

Barack Obama's administration made the policy decision to look forward, not back, and to leave the misdeeds of George W. Bush's administration to history's judgment. That would be a mistake for the incoming Biden administration. Donald Trump and his henchmen have made a concerted attack on American democracy, and done so much corrupting damage that it would be dereliction to give them a pass. [my emphasis]

Whitehouse is not a Joe Manchin, but he also has not particularly identified himself with the progressive/Sanders wing of the party. But the division between Democrats who are willing to fight Republicans and Democrats who are opposed to doing so is at least as significant this year as any left-right divisions in the Democratic Party.

The Calhoun Twelve and the next round in the clown coup attempt

Burgess Everett reports on the GOP's latest John Calhoun move to under US democracy and the Constitution in At least 12 GOP senators to challenge Biden's win Politico 01/02/2021.

David Sirota and Julia Rock wrote about the thinking behind this aspect of the ongoing clown coup attempt back in mid-November, How Pence & GOP Senators Could Try To Steal The Election Daily Poster 11/14/2020, relying heavily on an interview with Larry Lessig.

The Trump-Pence Administration will last for another three weeks. But the Biden-Harris era of asymmetric partisan polarization and of the corporate media lazily filtering every controversy through the Both Side Do It frame. The Democratic leadership is fantasizing about harmonious Bipartisanship. While the Republican Party has gone full John Calhoun.

An example of how political journalism keeps failing: treating a direct attack on the republic as just another horse-race story. https://t.co/fEuAhS2uya

— Dan Gillmor (@dangillmor) January 3, 2021

Even some in the corporate press finally started calling out blatant falsehoods by Trump and other Republicans as blatant falsehoods, after the election. Credit where credit is due.

But faced with an actual coup attempt, clownish though much of it has been, I'm underwhelmed by how most of the Democratic officials have responded. If 140 Republican House members, all sworn to support the US Constitution, are planning to vote against accepting the Electoral College vote, that should have consequences for them. Sarah Al-Arshani, House Republicans have virtually no chance of flipping the election results for Trump, but 140 of them still plan to vote against certification of the Electoral College count next week Business Insider 01/01/2021.

The Democrats and the Republicans who are not joining this seditious maneuver should require every Republican associated with this measure to state clearly and publicly that they consider their own elections legitimate. That especially goes for Representatives for states whose Electoral College votes they reject. Without having researched the exact House rules on the matter, it seems to me that if they can't state clearly that they believe their own elections were valid, they should not be seated in the next Congress or expelled outright.

This process has also been a dry run - though that's not all everyone who participated in it was hoping it would be! - for a Republican coup against the Presidential vote in 2024 or 2028. There has to be some stigma attached to those participating in this. The same goes for the Calhoun Twelve reported to be backing Cruz' Senate plan.

This is why I think it was irresponsible on Biden's part to state publicly that he intends to never even embarrass Republican Senators publicly. Embarrassment is the least of the consequences the Calhoun Twelve should face.

The Democratic Party has to face up to the reality of what the Republican Party has become. And not just in rhetorical flourishes in fundraising e-mails.

And part of that means insisting on legal and practical liability for crimes committed by Trump and his officials while in office, including ones involving the clown coup attempt. The American courts and the Justice Department are still capable for holding genuinely independent ivestigations and prosecutions.

Andrew Weissmann discusses the options and the challenges of doing so in Good Governance Paper No. 3: Investigating a President 10/15/2020. As his bio notes, "He served as a lead prosecutor in Robert S. Mueller’s Special Counsel’s Office (2017-19) and as Chief of the Fraud Section in the Department of Justice (2015-2019)." And he discusses the particular difficulty that Mueller's special counsel investigation faced::

To begin, there is the question of how one uses the recent experience to assess the current rules. It is true that the current administration, including the Attorney General, is anything but typical. The president, for instance, has openly sought the indictment of his political opponents, and his attorney general has given favorable treatment to presidential allies and heightened scrutiny to his enemies. This is not a normal situation in America; its scope and boldness is unlike anything we’ve faced in modern times.

Should the special counsel rules take into account how they work in such an anomalous and extreme situation? I think so. The risk from such a situation, namely, that we would devolve into a banana republic, is so serious that our rules must take the magnitude of the potential consequences into account. And they must recognize that future special counsels may well be challenged even more aggressively, now that Trump’s playbook has proven effective. This may be particularly true when either chamber of Congress is controlled by the same party as the White House rendering the impeachment guardrail largely toothless.

And his closing warning is one that the President and all Members of Congress not already pledged to sedition in overturning the 2020 Presidential election should take very seriously:

How we uphold the rule of law so that wrongdoing by the president and senior executives can be rooted out is a central challenge posed by our recent history. If not taken seriously, it threatens to undermine our democracy from within. What we do next, or choose not to do, will either repair that damage or tacitly allow the continued corrosion of our ideals. [my emphasis]

Democracy and the rule of law really are at stake with this.

Legal accountability for the Trump-Pence Administration

There will be plenty of issues for the Biden-Harris Administration to deal with, obviously.

But one of the top priorities - I would say for the rule of law as such, the highest priority - to have a thorough, independent legal review of actions during the Bush-Pence Administration and prosecute crimes where there is solid legal reason to do so.

That's how the rule of law is supposed to work. It's critically important that the next Attorney General make sure that happens.

And, yes, that should include a serious investigation of crimes committed in pursuit of Trump's clown coup attempt since the election.

Greg Sargent wrote about the legal accountability issue this past August in If Biden wins, the post-Trump corruption purge will have to be epic Washington Post 08/05/2020. Most of his column reports on a report from the left-center but thoroughly Democratic-establishment Center for American Progress (CAP), whose president is Neera Tanden.

Sargent also adds this suggestion, "Yet another area — not discussed in the CAP report — would entail new legislative safeguards against the sort of relentless financial self-dealing that Trump engaged in. A model is Sen. Elizabeth Warren’s (D-Mass.) blueprint requiring the IRS to release presidential candidates’ tax returns."

The CAP report is authored by Sam Berger, How a Future President Can Hold the Trump Administration Accountable 08/06/2020. And it states, "the lesson from the past four years is clear: The absence of accountability is treated as license to escalate abuses of power."

Yes, Presidents and their administrations have to be held accountable to the law.

But this is not just an idea or an ideal or a principle. It's the duty of the Justice Department to enforce the law. As the CAP report also says:

It is critical for leaders to make clear now that those who break the law will face accountability in the future. Ignoring the Trump administration’s attacks on the rule of law will only invite further attacks - and likely even more brazen and threatening ones. The Trump administration’s efforts to undermine U.S. democracy have greatly escalated—with the administration politicizing the deployment of federal law enforcement and casting doubt on the legitimacy of electoral processes - and are likely to grow in intensity unless it is clear that there will be accountability for wrongdoing. [my emphasis]

It matters. It really, really matters.