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Restoring the Guardrails of Democracy

It’s time to reckon with the long-term threats to America’s democratic institutions.

On Janu­ary 13, Donald Trump was impeached for a second time by the House for his involve­ment in incit­ing an insur­rec­tion on the Capitol — an attack motiv­ated by a broader attempt to over­turn the results of a free and fair elec­tion. The articles of impeach­ment have since been delivered to the Senate, where Trump’s second impeach­ment trial awaits.

The insur­rec­tion was not only an attack on the Capitol — it was an attack on Amer­ican demo­cracy. It punc­tu­ated a period that has been marked by constant viol­a­tions of demo­cratic and consti­tu­tional norms. And it has under­scored the need to not only hold elec­ted offi­cials account­able, but also reckon with long-term threats to the nation’s demo­cratic insti­tu­tions and restore the guard­rails that have eroded in recent years. Congress can enact legis­la­tion such as the Protect­ing Our Demo­cracy Act that would mark concrete progress toward strength­en­ing govern­ment account­ab­il­ity and prevent­ing the abuse of power, includ­ing the pres­id­ent’s emer­gency powers.

How did the insur­rec­tion at the Capitol build on the constant viol­a­tions of demo­cratic and consti­tu­tional norms over the last few years?

Eliza­beth Goitein: Our national secur­ity and emer­gency laws give the pres­id­ent tremend­ous discre­tion and create room for abuse. In prac­tice, they allow the pres­id­ent to declare an emer­gency where none exists, in order to further his own personal or polit­ical ends — with then–­Pres­id­ent Trump’s border wall emer­gency being the most obvi­ous example. But inter­est­ingly, what we saw from Trump over the past year was an entirely differ­ent kind of abuse of emer­gency powers, which was the polit­ic­ally motiv­ated fail­ure to use emer­gency powers, when avail­able, during a real emer­gency. We saw this with the Covid-19 crisis: the fail­ure to fully use the powers avail­able to the federal govern­ment based on the polit­ical advant­age that he thought he could gain by down­play­ing the virus and by leav­ing it all to the states to handle.

The storm­ing of the Capitol was another example of this kind of abuse through inac­tion. It was clearly an emer­gency. It may have been an appro­pri­ate occa­sion for Trump to invoke the Insur­rec­tion Act. And it was certainly a moment to deploy federal law enforce­ment agents and poten­tially National Guard forces in strength. That didn’t happen. And it’s diffi­cult to say how much of that can be traced to the former pres­id­ent, since the facts are still unfold­ing. But it’s hard to deny that if he had wanted to, he could have made things move a lot faster and could have made sure there was better prepar­a­tion for what happened. 

And he obvi­ously didn’t want to. He was not only happy to have the insur­rec­tion happen, he encour­aged it to happen in the first place, which is an even bigger prob­lem. But when it came to the abuse of emer­gency powers, some­thing that distin­guished Trump was his will­ing­ness to place partisan polit­ics, and more specific­ally his own self-interest, over the national secur­ity. We saw it when he with­held aid to Ukraine to pres­sure the Ukrain­ian pres­id­ent to invest­ig­ate his polit­ical rival, Joe Biden. And we saw it at the Capitol riot.

Martha Kinsella: The Trump admin­is­tra­tion had a pattern of distort­ing facts for polit­ical gain, such as by perpetu­at­ing the perni­cious myth of voter fraud and by foment­ing Covid-19 deni­al­ism in its pandemic response. That all came to a head with the incite­ment of people to force their way into the Capitol, without masks, to try to stop the peace­ful trans­ition of power. 

How should the coun­try begin the conver­sa­tion about account­ab­il­ity for what happened at the Capitol?

Daniel I. Weiner: Most people would agree that there has to be some indi­vidual account­ab­il­ity for trying to over­throw our govern­ment. That’s obvi­ously the focus of the crim­inal proceed­ings we are going to see against some of the people involved in storm­ing the Capitol. It is also the impetus for impeach­ment. Public offi­cials have to be account­able for their public acts. Both impeach­ment and other types of polit­ical sanc­tions don’t require actual illeg­al­ity. Even if it is impossible or imprac­tical to prosec­ute Trump in this context, there has still been a grave offense against our demo­cratic order, which must be addressed. 

Goitein: What distin­guishes a liberal demo­cracy from an auto­cracy is the rule of law — and the rule of law depends on account­ab­il­ity. If you don’t have account­ab­il­ity, then the law is just words on a piece of paper. When it comes to the attack on the Capitol — incit­ing insur­rec­tion — that’s not about norms or how pres­id­ents usually behave. That was a direct assault on the rule of law and on our demo­cracy. That’s why you hear so many organ­iz­a­tions saying that this is a red line, that it does­n’t matter what the polit­ical fallout will be of trying to impeach, of trying to invoke the 25th Amend­ment or the 14th Amend­ment, or whatever the account­ab­il­ity mech­an­ism may be. They’re saying that whatever the consequences, it has to be done, because this was extreme abuse and crossed a red line — and if there is no account­ab­il­ity or no effort at account­ab­il­ity, we can all just give up and go home.  

How would the Protect­ing Our Demo­cracy Act ensure account­ab­il­ity for and prevent future miscon­duct?

Kinsella: The insur­rec­tion was the culmin­a­tion of a long series of lawless acts by the Trump admin­is­tra­tion that the Protect­ing Our Demo­cracy Act begins to address. The bill would codify a norm that has exis­ted since the Ford admin­is­tra­tion of limit­ing contacts between the White House and the Depart­ment of Justice, address­ing the prob­lem of polit­ics infect­ing law enforce­ment decisions — some­thing that we saw happen over and over again during the Trump admin­is­tra­tion. Addi­tion­ally, there needs to be account­ab­il­ity within the exec­ut­ive branch, some­thing that inspect­ors general help ensure. During the Trump admin­is­tra­tion, there were a couple of high-profile stor­ies about the removal of inspect­ors general. A provi­sion of the Protect­ing Our Demo­cracy Act would ensure that inspect­ors general are insu­lated from polit­ical pres­sure. That part of the bill passed the House already in the first few days of the new Congress. 

The Protect­ing Our Demo­cracy Act also deals with pres­id­en­tial pardon power. It would both deter self-pardons — which was repor­ted as some­thing that Trump was contem­plat­ing in his final days in office — and add some trans­par­ency to the pardon power, with disclos­ure require­ments for a subclass of pardons involving relat­ives of the pres­id­ent. These meas­ures would be a good start. The Bren­nan Center’s bipar­tisan National Task Force on Rule of Law & Demo­cracy has proposed a related reform that would require disclos­ure of inform­a­tion about pardons of close asso­ci­ates. 

Weiner: Another very import­ant compon­ent of the act is codi­fic­a­tion of the Foreign and Domestic Emolu­ments clauses — consti­tu­tional provi­sions that restrict the pres­id­ent from taking bene­fits from foreign govern­ments and U.S. states. (The Foreign Emolu­ments clause applies to all federal offi­cials, while the Domestic Emolu­ments clause is limited to the pres­id­ent.) When Trump became pres­id­ent, he refused to divest from his busi­nesses (break­ing with a 60-year tradi­tion). During his pres­id­ency, patron­iz­ing a Trump hotel or club became a favored way for both foreign allies and domestic support­ers to curry favor with the pres­id­ent in ways that likely viol­ated these provi­sions. Multiple lawsuits were filed, but it is ulti­mately very hard to enforce this sort of consti­tu­tional safe­guard unless Congress enacts a basic stat­utory frame­work to imple­ment it, which is what the Protect­ing Our Demo­cracy Act would do.

How would the Protect­ing Our Demo­cracy Act address the pres­id­en­tial abuse of emer­gency powers? 

Goitein: Trump abused emer­gency powers in a number of ways — and unfor­tu­nately, the law made it very easy for him to do that. Under the National Emer­gen­cies Act, he was able to declare a national emer­gency predic­ated on unlaw­ful immig­ra­tion at the south­ern border, despite the fact that there was actu­ally no such emer­gency. And he was able to secure funds to build the border wall, even after Congress had denied him those funds. Even though some courts have held that this was unlaw­ful, he managed in the mean­time to build hundreds of miles of border wall. He also declared a national emer­gency in order to sanc­tion person­nel at the Inter­na­tional Crim­inal Court for having the temer­ity to invest­ig­ate alleged war crimes by U.S. person­nel. And he abused emer­gency powers in a number of other ways as well.

There is a bill called the Article One Act that has had bipar­tisan support that would restore Congress as a mean­ing­ful check against pres­id­en­tial abuse of emer­gency powers by requir­ing congres­sional approval of emer­gency declar­a­tions within 30 days. A version of that bill was incor­por­ated into the Protect­ing Our Demo­cracy Act. Passing that legis­la­tion is no less import­ant now that Trump has left office, because he was not the first pres­id­ent to abuse emer­gency powers and he will not be the last to try. So, it’s imper­at­ive to get this reform passed while we can, and not when we’re already in the midst of the next emer­gency or abuse of emer­gency powers. 

The Reign Act, which is included in the Protect­ing Our Demo­cracy Act, is another provi­sion that addresses emer­gency powers by requir­ing disclos­ure of pres­id­en­tial emer­gency actions docu­ments to Congress. These are draft pres­id­en­tial orders that are prepared in anti­cip­a­tion of a broad range of worst-case emer­gency scen­arios. And we don’t know what’s in them because they’ve never been released or leaked. But there are some offi­cial descrip­tions of older pres­id­en­tial emer­gency actions docu­ments, dating from the 1950s to the 1970s. And from those descrip­tions we know that they purpor­ted to author­ize things like martial law, suspen­sion of habeas corpus by the pres­id­ent, censor­ship of the press, warrant­less searches, roundup and deten­tion of people considered danger­ous, and other things that are clear viol­a­tions of the Consti­tu­tion.

It’s imper­at­ive to know what’s in the current version of these docu­ments, lest they also purport to author­ize actions that go against the Consti­tu­tion. And yet, there’s no congres­sional over­sight and no congres­sional access to these docu­ments. The Protect­ing our Demo­cracy Act includes a provi­sion that would require disclos­ure to the relev­ant commit­tees of Congress. 

How have recent events altered the United States’ stand­ing as a coun­try that upholds the rule of law and demo­cratic norms?

Goitein: Our demo­cracy is both remark­ably strong and remark­able fragile, in the sense that we’ve been able to with­stand a pres­id­ent’s effort to essen­tially end our demo­cracy and to over­turn an elec­tion. On the other hand, I think a lot of us thought that such an assault was not possible in the United States in the first instance. Now we know that it is possible, and that it was far too close for comfort. So, now is abso­lutely a time for a reck­on­ing. Our demo­cracy is not immune from threats. We need to shore up the protec­tions we have to keep our demo­cracy strong. 

Weiner: Pres­id­ent Biden is very focused on Amer­ica’s stand­ing as a lead­ing demo­cracy. His admin­is­tra­tion has made it a prior­ity to restore that stand­ing. It’s crit­ical to shore up our insti­tu­tions at home, to shore up guard­rails. And if we want to claim the lead­er­ship role that the pres­id­ent is very commit­ted to, we need to take seri­ously the threats to our own demo­cratic insti­tu­tions. And I firmly believe the way to do that is to look at some of the unwrit­ten rules that we thought would hold and have gradu­ally eroded, and to try to restore them with legis­la­tion. 

Goitein: We also need to take a look at some of the writ­ten rules that proved not to be the safe­guards we thought they were, and revisit those as well.