Beyond Impeachment, a Push for Ethics Laws That Do Not Depend on Shame
• Jan 11, 2021
WASHINGTON — As House Democrats move toward punishing President Trump with a history-making second impeachment, they are also pressing ahead with a parallel effort to try to ensure that Mr. Trump’s four-year record of violating democratic and constitutional norms cannot be repeated.
Mr. Trump’s term has revealed enormous gaps between the ideals of American democracy and the reality. Even before he incited a mob to attack the Capitol and the legislative branch of government, he ignored watchdog rulings and constitutional safeguards, pressed to overturn the outcome of an election, and pardoned those who covered for him, all while funneling taxpayer dollars to his family business.
In response, lawmakers and pressure groups are pushing for a wide-ranging overhaul of ethics laws, the likes of which have not been seen since the post-Watergate era, hoping to reconstruct and strengthen the guardrails that Mr. Trump plowed through.
“If anything, the events at the U.S. Capitol last Wednesday create even more urgency to swiftly reform the structural flaws in our democracy,” said Representative John P. Sarbanes, a Maryland Democrat who is leading the legislative effort.
Among the changes embraced by House Democratic leaders are limits on the president’s pardon powers, mandated release of a president’s tax returns, new enforcement powers for independent agencies and Congress, and firmer prohibitions against financial conflicts of interest in the White House.
“We kept on having to add to it as the administration engaged in new abuses,” said Representative Adam B. Schiff, Democrat of California and the chairman of the House Intelligence Committee. “It’s a long list.”
Two major pieces of legislation, the Protecting Our Democracy Act and H.R. 1, will be the main vehicles to address the sweep of questionable practices in the Trump era, which culminated in the president’s efforts to reverse the election outcome and provoke a riot to thwart the final electoral vote for President-elect Joseph R. Biden Jr. Last Tuesday, a provision in the Protecting Our Democracy Act, which would shield independent inspectors general from retaliation and help ensure that vacant watchdog slots are filled promptly, was pulled out and passed by the House by a bipartisan voice vote.
As keen as Republicans may be to put limits on Mr. Biden’s presidency, they may not be so acquiescent to the Democrats’ broader bills if they are seen as a rebuke to Mr. Trump. But Democrats say they will press hard, especially in the wake of the Capitol’s desecration.
Congress, Mr. Sarbanes said, must seek “ways of hardening our democracy against attacks from within and without.”
The bigger question may be whether Democrats will “remain as interested in reining in executive branch overreach when it’s their guy in the White House,” said Danielle Brian, the executive director of the Project on Government Oversight, a nonpartisan group that investigates governmental abuses.
Bob Bauer, an author of the book “After Trump: Reconstructing the Presidency” and a senior adviser to the Biden campaign, suggested that any administration’s support would have its limits.
“We have to reconstruct some norms that have been damaged, but the idea is to strike a balance so that reform is effective without undermining a strong presidency,” he said.
A transition official pointed to the government overhaul plan that Mr. Biden released during the campaign, much of it focused on campaign finance controls, Justice Department independence and personal conflicts of interest in the executive branch. It includes no controls on presidential powers.
But pressure is building to address the systemic weaknesses revealed by the Trump years.
“The mechanism that preserved that system was the fear of paying a political price,” said Susan Hennessey, an author of the book “Unmaking the Presidency: Donald Trump’s War on the World’s Most Powerful Office.” “Now we know that if there’s not a credible fear of that, we’re likely to see future presidents attempting to violate these rules or push the boundaries more and more.”
President Richard M. Nixon’s use of the Justice Department to pursue his political enemies prompted Congress — eventually, over years — to pass the Ethics in Government Act of 1978. But Mr. Trump’s conduct proved that many of those changes — and longstanding checks and balances dating to the constitutional convention — relied more on tradition and shame than on enforceable law.
“The reforms then have been demonstrated not to be enough,” said Max Stier, the chief executive of the Partnership for Public Service, a nonpartisan group.
House Democrats on Monday reintroduced legislation to address those deficiencies.
“We need to use this moral moment to make changes while the Trump catastrophe is fresh in our minds,” said Lisa Gilbert, the executive vice president of Public Citizen, a consumer advocacy group.
The Democrats’ Protecting Our Democracy Act includes requiring candidates for president to release 10 years of tax returns, beefing up protections from retaliation for whistle-blowers and inspectors general, and prohibiting presidents from pardoning themselves.
Pending bills intend to empower the Office of Government Ethics, an executive branch agency created in the post-Watergate ethics rush, so that it can more effectively press federal officials to disclose and sell off businesses and assets that pose a conflict of interest.
Right now, the office relies on a president’s desire to avoid scandal and impropriety, and the Senate’s reluctance to schedule confirmation hearings for nominees who have not filed the proper paperwork and committed to divestiture. Mr. Trump and an acquiescent Senate exploded those norms, Mr. Stier said.
Under the proposals, the ethics office could impose fines and refer matters to a special counsel for investigation.
The new House legislation amounts to a flashback tour of the Trump years. Even before his inauguration, Mr. Trump, the first president to maintain a multinational business while in the White House, made clear he would ignore outcries over his business entanglements.
“The law is totally on my side, meaning the president can’t have a conflict of interest,” he said soon after he won election.
A measure in the House legislation, prompted by the millions of dollars that Trump family hotels collected from foreign governments and influence peddlers, would prohibit presidents and vice presidents from receiving gifts, called emoluments in the Constitution, from foreign nations without congressional consent. The bill defines emoluments to include payments arising from commercial transactions, clarifying vague constitutional language that Mr. Trump and his family ignored as they profited from his presidency.
Another provision would require presidents to provide a documented reason for any pardons linked to investigations of themselves or their family members, a measure partly inspired by Mr. Trump’s pardon of his first national security adviser, Michael T. Flynn.
Since then, the president has pardoned Roger J. Stone Jr. and his former campaign chairman, Paul Manafort, both of whom refused to cooperate with the special counsel investigation of Russian efforts to influence the 2016 election. Mr. Trump also pardoned Charles Kushner, the father of his son-in-law, Jared Kushner.
Under the bill, exchanging a pardon for anything of value would be deemed a criminal offense, under federal bribery statutes. Presidential self-pardons, as Mr. Trump is said to be contemplating, would be prohibited.
The bill would also expand legal protections for whistle-blowers to cover a president’s political appointees, and shield all whistle-blowers from retaliatory investigations, measures included after Mr. Trump’s efforts to identify an anonymous government whistle-blower who exposed the president’s attempt to enlist Ukraine in digging up dirt on Mr. Biden.
The bill would better protect inspectors general, whose offices were created under another reform law in 1978 to serve as internal watchdogs, by specifying firing offenses and requiring a president to document them. Mr. Trump exposed the absence of such protections by firing multiple inspectors general at will, including those investigating executive branch misconduct.
“One benefit to the spectacle of the last four years is that the general public has taken an interest in the mechanics of good government,” Ms. Brian said.
Few abuses were more stark than the Trump inner circle’s casual violations of the Hatch Act, which prohibits executive branch employees from engaging in partisan political activity.
Mr. Trump ignored the independent Office of Special Counsel’s recommendation that he fire the presidential counselor Kellyanne Conway for repeated Hatch Act violations, like campaigning for Mr. Trump’s re-election and urging Americans to buy apparel from Ivanka Trump’s clothing line. The White House trade adviser, Peter Navarro, kept up a stream of partisan TV commentary while under special counsel office investigation for Hatch Act violations. Secretary of State Mike Pompeo used an official trip to Israel as a backdrop for a live speech to the Republican National Convention, whose staging at the White House crystallized the administration’s disdain for the law.
Pending legal changes would authorize the Office of Special Counsel to enforce the Hatch Act when the president fails to do so, by fining violators up to $50,000 a transgression.
Alongside the push for stronger ethics rules, new democracy promotion groups are pressing for broader repairs to the political system.
“A lot of what needs to be done is rebalancing power” between the legislative and executive branches of government, said Ian Bassin, a founder of Protect Democracy, which was formed in 2017.
Mr. Trump imagined his constitutional powers as near-infinite, a perception seldom challenged by his congressional allies. When Congress expressly refused to appropriate enough money for Mr. Trump’s border wall, he declared a national emergency and took the money from the Defense Department. When Congress blocked arms sales to the Middle East, he again declared an emergency, this time over Iran, and made the sales anyway.
Mr. Biden, as the longest-serving member of Congress ever to win the presidency, may be the perfect leader to pursue such rebalancing, said Mr. Bassin, who was an associate White House counsel in the Obama administration.
Another nascent group, the Renew Democracy Initiative, counts Garry Kasparov, the Russian dissident and former world chess champion, as chairman of a board that includes Heidi Heitkamp, the former Democratic senator from North Dakota; Michael S. Steele, a former Republican Party chairman; and retired Lt. Col. Alexander S. Vindman, who testified against Mr. Trump during impeachment.
“We forgot to make a normative case for liberal democracy to Americans, and we’re now reaping the rewards,” said Uriel Epshtein, the initiative’s executive director.
In a parting shot at the departing administration, the Protecting Our Democracy Act would suspend the statute of limitations for federal offenses committed by the president and vice president before and during their term of office.
“There was an assumption in the regulation of the presidency that the president, by virtue of being elected by the American people, would not want to systematically violate norms that, while they weren’t perfect, worked remarkably well,” said Jack L. Goldsmith, an assistant attorney general under President George W. Bush and an author, with Mr. Bauer, of “After Trump: Reconstructing the Presidency.”
“Trump just shattered that system,” Mr. Goldsmith said, warning that the most successful legislative push might not be enough to ensure a “virtuous” president.
You can read the full article by Elizabeth Williamson here.