Weaken the Presidency—Even If Biden Wins

In earlier chapters of American history, bad presidents eventually led to good government. Andrew Johnson’s stupendous failures after the Civil War spurred Radical Republicans to take command of Reconstruction, briefly turning the American South into a multiracial democracy. Richard Nixon’s downfall in the Watergate scandal in 1974 inspired a decade’s worth of reform: the creation of inspectors general, new ethics and transparency standards for public officials, stronger anti-corruption laws for campaign-finance violations and foreign bribery, and more.

Donald Trump’s presidency requires a similar reckoning. On Wednesday, Speaker Nancy Pelosi and other top House Democrats unveiled a new bill aimed at fixing some of the systemic weaknesses that Trump exposed in the American system of government over the past four years. “Our democracy is not self-effectuating—it takes work and a commitment to guard it against those who would undermine it, whether foreign or domestic,” six of the Democrats’ major committee chairs said in a statement. “It is time for Congress to strengthen the bedrock of our democracy and ensure our laws are strong enough to withstand a lawless president. That’s why we are acting today to introduce the Protecting Our Democracy Act.”

The bill is a tacit admission by Democratic leaders that existing laws fell short of their aspirations when constraining a president who is indifferent to the rule of law. Many of the post-Watergate reforms, for example, rely upon the president’s good faith to properly function. Other provisions, such as the purported ban on nepotism in federal hiring and the Hatch Act’s limits on using public resources for political gain, proved ineffectual without an independent enforcement mechanism. Some of Trump’s actions even went beyond what past generations of lawmakers ever thought possible from a sitting president.

Perhaps the most significant provisions in the Democrats’ bill stem from the aftermath of the Russia investigation. During that inquiry, Special Counsel Robert Mueller and his team concluded that they were bound by a 1974 Justice Department policy memo that concluded a sitting president could not be prosecuted in office, limiting their ability to investigate Trump’s conduct and pursue obstruction-of-justice charges against him. The new bill would suspend the statute of limitations for crimes committed by presidents before and during their tenure to ensure they could eventually face consequences by future prosecutors.

Other measures would take aim at gaps in federal anti-corruption laws. Mueller’s team was hindered by Trump’s all-but-explicit offers of pardons to key witnesses like former campaign chairman Paul Manafort and longtime advisor Roger Stone. Trump subsequently followed through on his implicit promise by commuting Stone’s sentence and sparing him a prison term; Manafort is currently serving his sentence under house arrest after federal officials released him from prison, citing the COVID-19 pandemic. While Congress can’t limit the president’s constitutional power to issue pardons, the bill would explicitly include pardons and pardon offers as a “thing of value” under federal bribery laws.

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