Center for American Progress report on the need for rule-of-law accountability for Trump Administration crimes

I don't know whether to take this as an encouraging sign or one of those cracks-in-spacetime warnings. But the now-safely-establishment Center for American Progress (Neera Tanden, president) has just today published a paper on the need for a Biden Administration to treat Trump Administration crimes as crimes, How a Future President Can Hold the Trump Administration Accountable by Sam Berger 08/06/2020:

[T]he lesson from the past four years is clear: The absence of accountability is treated as license to escalate abuses of power.

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.

Now, in deference to the duck-and-cover instincts of the Party establishment, it prefaces that with, "Whenever the Trump administration ends, there may be good-faith concerns that addressing the administration’s misconduct will be too divisive, set a bad precedent, or lead to political pushback from the administration’s supporters."

Translation: Of course our corporate donors don't want to see this, and the Republicans will howl and cry and play the victim and the knee-jerk Democratic leadership response to that is always to hide under the bed.

In fact, you might want to download the PDF immediately, because the lobbyists are probably already making a fuss over this already. Because it goes into why the duck-and-cover response would be bad for the Democrats.

This is really, seriously, a basic rule-of-law issue. It would be a "left" idea only if the Democratic leadership is actually indifferent to the rule of law for government officials and have been just blowing smoke about their "resistance" to Trumpism for the last 3 1/2 years. "To look the other way with respect to the actions of the Trump administration would mean that the rule of law is not a constant, but rather that it only exists for certain administrations and for certain people  —  which is to say that it does not exist at all."

This CAP report is surprisingly good in making the case on how serious the responsibility of a new administration is on this:

The Trump administration is not simply trying to skirt the law — it is acting as if the law does not apply to it at all. If the rule of law is to have any meaning, it is incumbent on a future administration to make clear that it applies to everyone. The moral hazard of allowing the Trump administration to escape accountability would put our democracy permanently at risk.

Greg Sargent has some favorable comments about the CAP report in If Biden wins, the post-Trump corruption purge will have to be epic Washington Post 08/05/2020. He obviously has some doubt about whether Status Quo Joe will have the stomach or it: "Which immediately highlights an interesting conundrum: to what degree members of a Biden administration could undertake such an internal examination without involving Biden in any way, since that would risk straying into the sort of politicization that is the problem under Trump."

The policy of the Obama-Biden Administration was impunity for crimes by Republicans in office from the previous Administration. And also for bank CEOs responsible for criminal acts in the mortgage crisis. I see that as a serious dereliction of duty on that administration's part. The CAP reports argues:

Another concern is that holding the Trump administration accountable for its actions would be too divisive. Trump has continually sought to divide America to try to build his political support, which will likely lead to a strong desire by a future administration to rectify this problem by uniting the country around shared ideals. But one of those shared ideals is the primacy of the rule of law: that people in the United States should be treated equally, and that there should not be one justice system for the politically well-connected and one for everyone else. Having a rule of law means that it applies at all times and in all places—not only when an administration chooses to enforce it. The law applies right now to the Trump administration; that the administration refuses to acknowledge that fact is all the more reason that a future administration must reassert it. That means holding people accountable for their wrongdoing.

Those concerned about divisiveness often point to Gerald Ford’s pardon of Richard Nixon as a model. But that analogy is inapposite. Nixon resigned from office in disgrace, providing some measure of accountability for his actions—although, notably, he did not admit wrongdoing. And when Ford pardoned him, he first made sure that Nixon understood Ford’s view that acceptance of the pardon was an acceptance of guilt for his part in Watergate. Moreover, as discussed earlier, many people in Nixon’s administration as well as a number of his associates were investigated and held to account for their illegal actions. [my emphasis]

Remember the "impoundment" controversy during the Nixon Administration?

It has been in the news for a while that Trump is diverting funds from the Pentagon and emergency services to pay for his border wall.

I haven't seen it meantioned in connection with this - although I assume some media outlets probably have - a major issue that the Democrats used against Richard Nixon when he was President was his "impoundment" (sequestration) of funds that had been appropriated by Congress. In that case, it wasn't a matter of also diverting the funds to other purposes, but rather not spending them on programs Nixon didn't like even though they had been appropriated by Congress.

Historian Henry Steele Commager wrote (The Defeat of America 1975):

The Founding Fathers were determined that the hardly won power over the purse should never be frittered away, and they wrote it into the Constitution. Now confronted by Congressional votes overriding his vetoes of appropriation bills, Mr. Nixon has resorted to what he calls "impoundment": that is, he refuses to spend money which Congress has appropriated as the Congress wants it spent. What he presents to us here is a twofold violation of the Constitution: first, a nullification of the constitutional provisions giving to the Congress power to appropriate money, and second, a nullification of the constitutional provisions governing the exercise of the presidential veto and providing the method whereby the Congress can override the veto. If Mr. Nixon can substitute "impoundment" for a veto in the matter of appropriations he can, presumably, do so in any other matter, and he has therefore amended the Constitution itself.

In a contemporary article from the time of Nixon's Presidency, Impoundment: A Look at the Record American Heritage 25:1: Dec 1973, Allan Damon reviewed the historical record on Presidential impoundment. While Executive exercise of discretion was not new with Nixon, as Commager observed, Nixon was using it as a practical line-item veto on programs he opposed, rather than responding to legitimate Constitutional concerns or dealing with genuine national emergencies. Damon wrote:

Faced through his five years in office with budgets of this size, President Nixon has freely impounded funds to an extent unmatched by any of his predecessors. It is estimated that to date he has withheld more than $30 billion (although some of it has since been released). In doing so he has added several new dimensions to impoundment.

Where earlier Presidents saw impoundment as a lesser string in the Presidential bow and used it sparingly, Mr. Nixon has made it an integral part of his fiscal policy and has used it on a regular and systematic basis. Where earlier Presidents generally reserved funds from defense and construction budgets, leaving domestic social programs virtually untouched except in wartime, Mr. Nixon has specifically drawn his reserves from a broad range of social-welfare projects. Where earlier Presidents cut only selected projects or limited their expansion within established larger programs, Mr. Nixon has used impoundment to terminate total programs to which he is opposed.

In fiscal 1970 Nixon made his deepest cuts in the poverty programs of the Department of Health, Education, and Welfare. In fiscal 1971 he reserved some $13 billion, the bulk of which came from welfare, education, and housing programs. In fiscal 1973 he withheld more than $400 million Congress appropriated for the food-stamp program. He impounded $8 billion allocated for water reclamation after the Congress had overridden his veto of the original appropriation.

In January, 1973, he announced that he would not request funds for fiscal 1974 for the Office of Economic Opportunity and that he intended to reserve all unspent funds in the 1973 budget for that program while phasing it out. [my emphasis]

Congress passed the Congressional Budget and Impoundment Act in 1974 to curtail Nixon's abusive practices on impoundment.

That was an instance of Congress using its own power to enforce its view of the Constitution. (Twisting the President's Arm: The Impoundment Control Act as a Tool for Enforcing the Principle of Appropriation Expenditure Yale Law Journal 100:1; 1990)

It's helpful to remember this as a time when Congress, and Democrats in Congress, took their Constitutional duites to restrain a rogue Executive much more seriously than Nancy Pelosi and Chuck Schumer do today.

But today's Democratic squeamishness on such matters didn't begin with Pelosi and Schumer. Peter Rodino was the Congressman that presided over the House Judiciary Committee's impeachment hearings against Nixon. (Melissa Block, Watergate Figure Peter Rodino Dies NPR 05/09/2005) But he said this in a 1989 interview:

Rep. RODINO: Notwithstanding the fact that I was Democrat, notwithstanding the fact that there were many who thought that Rodino wanted to bring down a president as a Democrat, you know, he was our president.

SUSAN STANBERG: Yes.

Rep. RODINO: And this is our system that was being tested. And here was a man who had achieved the highest office that anyone could gift him with, you know. And you're bringing down the presidency of the United States, and it was a sad, sad commentary on our whole history and, of course, on Richard Nixon.

So, Rodino, one of the Democratic leaders in the impeachment fight that forced Richard Nixon to resign, recalled his historic achievement as "a sad, sad commentary on our whole history." But half-apologizing after successfully defending the Constitution is a whole different thing that refusing to fight for it.