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Accountability Is Everything



The ubiquitous question posed during the Trump presidency—“Can he do that?”—continues to be the wrong question.

Illustration by The Atlantic. Source: Getty.

Many people believed that a federal indictment of Donald Trump for his mishandling of classified information would never come—that the rule of law simply could not withstand the virulence and impetuousness of this one man and his cowardly enablers, that Attorney General Merrick Garland lacked the fortitude to weather the political fallout of indicting a former president, and that Trump’s signature outmaneuvering would carry the day—as if he really were a king.

The ubiquitous question posed during the Trump presidency—can he do that?—continues to be the wrong question. The real question is still: If he does that, who will hold him accountable? Until Thursday, the answer was nobody. Which meant that the answer to the first question—can he do that?—was yes. (Both an earlier indictment out of Manhattan and the judgment in a civil lawsuit brought by the writer E. Jean Carroll were in the main for behavior that preceded Trump’s presidency.) What finally caught up with him is the structure of the Constitution itself, and its foundational premise of a government accountable to the people.

Having rebelled against an absolute monarchy, the authors of the Declaration of Independence aimed to establish a government composed of individuals who “deriv[e] their just powers from the consent of the governed.” The document denounced King George III as a “Prince whose character is thus marked by every act which may define a Tyrant, [and who] is unfit to be the ruler of a free people.” The preamble to the Constitution was written in the first person—“We the People of the United States”—rather than as a pronouncement from God, from whom the divine right of kings emanated. James Madison explained in “Federalist No. 49”—one of the essays he, Alexander Hamiton, and John Jay wrote to garner support for the Constitution’s ratification—that “the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived”; in “Federalist No. 37,” he said that “the genius of republican liberty, seems to demand on one side, not only, that all power should be derived from the people; but, that those entrusted with it should be kept in dependence on the people.” The Supreme Court has likewise repeatedly underscored that “the Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people.”


Accountability and the idea of government by the people thus operate as reciprocals: Because the people retain the ultimate power of government, those in power must be accountable to the populace. “To hold otherwise,” the Court has written, “is to overthrow the basis of our constitutional law.” But in the age of Trump, accountability for public officials became frighteningly elusive, for two reasons: The Constitution is sparing in its prose, and it is hydraulic in its structure.

Thus, for example, when Trump directed then–White House Counsel Don McGahn to have Special Counsel Robert Mueller removed, the Constitution’s text offered no answer to the novel questions his actions presented: whether a president’s Article II power to execute the laws was spacious enough to halt an investigation into his own wrongdoing, or whether even the president must yield to an act of Congress barring obstruction of executive-branch investigations. Without a prosecution of Trump, the judicial branch had no opportunity to weigh in. Presumably, the Framers fully expected that impeachment would be a primary check on a president’s malfeasance, but Mueller’s report into Russia’s interference in the 2016 election, which detailed 10 acts of obstruction by Trump, did not prompt impeachment proceedings. He went on to survive two full impeachment efforts based on separate behaviors, including his role in the deadly mob effort to thwart the peaceful transfer of power to his successor. Trump and his backers came to understand that congressional checks on a rogue president were a mere nothing.

Many of Trump’s supporters will condemn the latest indictment as politically motivated harassment—the opposite of legal accountability under a fair system of laws. John F. Harris, the author of The Survivor: Bill Clinton in the White House, wrote of Independent Counsel Kenneth Starr’s investigation that “to Clinton defenders, Whitewater became a synonym for false accusations, partisan vendettas, and prosecutorial abuse.” The difference between the Starr investigation (in which I served as an associate independent counsel) and this one is that Starr’s grand jury did not amass enough evidence of wrongdoing by President Bill Clinton to criminally charge him with anything. Presented with criminal laws enacted by Congress, the Florida grand jury determined that the evidence bearing on Trump’s case has met the threshold of probable cause that he committed multiple crimes.

Trump’s fate is now in the hands of the judicial branch—judges appointed for life, along with a jury of his peers. In his treatise on English common law, the 18th-century jurist and legal scholar Sir William Blackstone called the jury trial “the glory of the English law” that is needed for “the impartial administration of justice.” As Trump has already seen once with the $5 million jury verdict for sexual abuse in the Carroll case, trials are governed by authenticated evidence, established procedures, and constitutional rules—not by virulent attacks and slippery lies. When it comes to Donald Trump, a federal court in Florida is where the American people will finally have their day in court too. The Constitution itself will be better for it.

Source: The Atlantic


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