Editor’s Note: Danielle Brian is the executive director of the Project On Government Oversight (POGO).The views expressed in this commentary are her own. Read more opinion at CNN.
As Joe Biden prepares to assume the presidency, it is important that our leaders acknowledge that without significant reform, the systemic challenges to government accountability and corruption made obvious by President Donald Trump’s White House tenure will persist.
The Trump administration, while unique in certain ways, did not cause or create most of these kinds of problems; Trump and his administration merely clarified them. When President Richard Nixon left office amidst the Watergate scandal, Congress and subsequent presidential administrations responded by working concertedly to pass laws and create normative practices that would fix or otherwise mitigate the structural flaws that Nixon abused.
Now, we are at another such moment.
Biden and Congress cannot pretend that the challenges exposed by Trump will simply disappear. They must recognize that these issues are systemic and use this time to pass reforms to ensure these abuses don’t happen again.
For example, the president hasn’t been covered by all of the existing federal conflict-of-interest laws that, for decades, have governed virtually all other public officials. With Trump, the accountability gap just became more obvious. He refused to divest from his myriad business interests, bucking decades of precedent for previous presidents, leading to a plethora of reported conflicts of interest, sketchy foreign business arrangements, and stunning attempts at self-dealing.
While the specific problems surrounding Trump and his family may be in the rear-view mirror, the legal conundrum — created when the most powerful individual in the country is not subject to conflict-of-interest laws — remains a live concern.
For decades, it has been the policy of the Justice Department that a sitting president cannot be indicted for a crime. While it could be awkward for federal prosecutors to level charges against a president, the status quo borders on the absurd. Think back to the second volume of the Mueller Report, which laid out at least 10 potential instances of obstruction of justice perpetrated by Trump, as the Associated Press noted at the time. (Trump consistently denied wrongdoing.) Mueller seemed to indicate that he wouldn’t reach a definitive conclusion only because it would be unfair to air direct allegations against a person who cannot be indicted for the potential crimes in question. Plus, the Office of Legal Counsel at the Justice Department has for decades interpreted laws to expand the powers of the executive branch.
You can see the quandary. A president is both immune from certain ethics laws while simultaneously possessing the ultimate trump card (pun intended): a shield from indictment for a federal crime of any kind. The past four years laid bare a glaring flaw in the system that requires reform.
Specifically, the entire suite of conflict-of-interest laws currently on the books should cover the president, and Congress should enact more restrictions around things like divestment and financial self-dealing. The Justice Department should also rescind any of its policies that allow the highest levels of government to operate with impunity.
And it’s not just the president.
Other state and federal officials, from police officers to border patrol agents to cabinet leaders, are sometimes shielded from consequences in cases of alleged wrongdoing. Congress must amend federal civil-rights law to allow for the conviction of federal officials who deprive individuals of their civil rights intentionally or recklessly. Lawmakers must also pass legislation that ends qualified immunity, the court doctrine that makes it harder to sue government officials for things they did in the course of their duties.
It has also become clear that we need stronger procedures for holding the entire federal government accountable.
For example, the past four years have made it particularly clear that inspectors general are essential to rooting out waste, fraud, and abuse in the government, but they are too vulnerable to removal or pressure. Inspectors general need stronger protections that will enhance their independence. A similar case can be made for protecting government whistleblowers, who also perform an indispensable role in exposing wrongdoing by the government.
And in recent decades (not just over the past four years), the executive branch has been growing asymmetrically more powerful, relative to the legislative branch. This contributed to the kind of impunity and lawlessness we have seen under the Trump administration. To claw back some power from the executive branch, Congress must strengthen its oversight by undergirding its investigative and subpoena power and by beefing up its ability to monitor and enforce what happens to tax dollars once it approves executive branch spending.
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It could be all too easy to think the Trump administration was an aberration and that we can now return to the way things were. But Trump did not create the system that he inherited in January 2017, just like Nixon didn’t in 1969. Both of them showed us the pre-existing gaps in the system, and then drove a proverbial 18-wheeler truck through those gaps.
Biden and Congress must enact comprehensive reform. If they don’t, we will soon find ourselves facing another Nixon or Trump. Now is the time for bold action that will bring about a truly accountable and effective government.
