How To Check Presidential Power Post Trump

Published by PolisPandit on November 17, 2020November 17, 2020

Thanks to President Donald J. Trump, one truth of American democracy is more apparent than ever: presidential power has run amok. Even apart from Trump’s baseless rants and coup d’etat flirtations, he has posed an unprecedented threat to democracy over the past four years. His dreams of dictatorship morphed into reality in many ways, whether by turning the Department of Justice into his own law firm, profiting from private businesses at the taxpayer’s expense, not disclosing his tax returns, and extorting foreign leaders to attack his political opponents. The list goes on.

Nobody had the authority or balls to check Trump’s power. Democrats won the House majority back in 2018, but without control of the Senate, it was of little utility. Republicans had control of the Senate throughout Trump’s presidency, but their fear of his wrath led them to cower like scared puppies or stand by idly while he ransacked the institutions of democracy.

A select few actively helped Trump perpetuate his undermining of the rule of law. In particular, William Barr – Trump’s loyal and obedient pug – will go down in history as the least impartial and arguably the most corrupt Attorney General America has ever seen. Just when we thought Barr could not top his infamous memo on the Mueller Report that misled America on the evidence against Trump, he laid the groundwork for a coup. Barr could have stopped Trump’s unsubstantiated claims in their tracks, but instead he breathed life into his contrived election fraud conspiracy theories. As a Trump nominee and Presidential cabinet member, Barr is hardly independent from the President, despite serving as the chief lawyer of the United States, not as the chief lawyer for Trump.

If the Trump presidency has illustrated anything, it is that previous norms of behavior are no longer sufficient. Structural changes to the Presidency are necessary, including the following.

1. America can no longer assume that the U.S. Attorney General will be independent from the President who nominates them. Most states separately elect their state level Attorney General. Why should the federal government be any different? Even if they are from the same political party as the President, it’s imperative the Attorney General is directly accountable to the people, not the President for whom they are supposed to check.
2. Sitting Presidents should be subject to potential indictment. And with a more independent Attorney General that should be possible. Enough of this Department of Justice guidelines garbage. A fundamental precept of the rule of law is that nobody is above it, not even the President. So let’s make it that way. No more excuses, Mueller.
3. It cannot be assumed that Presidents will automatically concede defeat when all evidence suggests they have in fact lost. There needs to be a statutory requirement that the transfer of power commences by the time all states have certified their votes. The national security of America may not matter to Trump right now, but a smooth and swift transition is in the interest of all Americans.
4. Presidents must be statutorily prohibited from using the powers of the office for personal gain, whether politically, financially or otherwise. They must be required to divest all interests in personal business endeavors while in office. The fact that foreign leaders could patronize Trump properties, not only economically benefited him in his public, taxpayer funded role, but also exposed him to undue influence from those who supported the Trump brand. The potential conflicts are rampant unless Presidents are required to divest these interests completely.
5. Presidents must be required to disclose their tax returns. It should be a simple prerequisite of the campaign process. For example, if you want to work for a U.S. broker-dealer, you must disclose your personal brokerage accounts. Why? Because FINRA and your employer want to make sure you’re not using information from your job inappropriately or screwing over customers. Similarly, how can Americans be sure a President won’t screw them over or face blackmail if it is not clear who their financial masters might be?
6. The pardon power must be curtailed. Presidents should only be able to use it in limited circumstances and never for themselves. And it definitely should not be deployed as air cover for those doing a President’s illegal bidding (think Roger Stone).
7. “National Security” needs a statutory definition. Everything under the sun should not receive magical justification because it was in the name of national security. Talk about an exception swallowing a rule. Civil liberties need to emerge from the Presidential toilet.
8. Executive Orders are bullshit and should be treated as such. Dictates of a faux king (or queen!) have no place in a representative democracy. The framers – conservative originalist ears just perked up – did not design the Constitution to make it easy to pass laws or enter into treaties. This was done for a reason. Civil debate. Compromise. I know in this polarized world of political tribalism that these concepts seem foreign, but it’s arguably worse having a President (regardless of party) signing edicts without any checks while in his bathrobe with a sharpie.

These eight propositions are simply a start. Over a mere four years, Donald Trump exposed the inherent flaws in the checks and balances across America’s three branches of government.  Not to mention the checks and balances within those individual branches.  If America permits the current system and governmental structure to persist without consideration of executive power reforms, it only leaves the door open for more narcissistic strongmen to tear through it. 

Take it from the country’s first President who refused to be king.  Or from Abraham Lincoln – whom Trump occasionally thinks he’s the second coming of – who was concerned about integrating a defeated Confederacy back into the Union, ensuring they didn’t feel subjugated. Examples throughout American history suggest that the Presidency was never intended as a unitary executive as some kool-aid drinking conservative jurists might have you think.  If anything, the Constitution designed the Executive Branch with limited powers overall, except in times of war or national emergency (which should be few and far between). 

In a post Trump world, America must learn the lessons of recent history and ensure this type of authoritarian presidency never finds itself in the Oval Office again.