This story originally appeared in The Boston Globe June 2021
https://apps.bostonglobe.com/opinion/graphics/2021/06/future-proofing-the-presidency/part-4-hiding-the-evidence/

Hiding the evidence

Donald Trump got away with thwarting investigations of wrongdoing by his campaign and his White House. Without reforms, future criminals could exploit the powers of the presidency to even more dangerous ends.

Right out of the gate, Donald Trump appeared to break the law and brazenly admit it to the entire nation — not with remorse but with pride and conviction. Within four months of being sworn in, Trump fired FBI director James Comey, which the White House insisted was a decision rooted in Comey’s mishandling of the investigation into Hillary Clinton’s private e-mail server. But Trump rebuffed his Department of Justice’s line of reasoning in a television interview with NBC, saying that he was planning on firing Comey because of the investigation into Russian interference in the 2016 election.

This was just one of several instances of obstruction of justice outlined in the Mueller report — the culmination of special counsel Robert Mueller’s investigation into the Trump campaign’s involvement in Russia’s election interference. Trump also obstructed justice when he tried to fire Mueller, when he tried to curtail Mueller, and when he ordered his White House counsel to lie about his attempt to fire Mueller. But having faced no legal consequences for these and other attempts to undermine the investigation, Trump unsurprisingly went on to commit the same crime again, and was eventually impeached for obstruction of Congress in a completely different case that involved his efforts to thwart the investigation of a whistle-blower complaint about his corrupt call to the president of Ukraine.

As it stands, Trump’s presidency will only embolden future presidents to abuse their power because he showed impeachment to be a far less threatening tool than it once was. While Richard Nixon’s resignation and the public shaming that came along with it may have served as a warning to his successors of the social and political pitfalls of corruption, Trump’s shamelessness and resilience in riding out both of his impeachment trials until the Senate acquitted him may be a lesson to his successors to double down on their wrongdoings because their own party will protect them.

"Impeachment is not as strong a deterrent as it was before Trump."

This is not to say that impeachment has been rendered a completely useless tool; Congress should still use it when a president is guilty of high crimes or misdemeanors. But impeachment is not as strong a deterrent as it was before Trump. The solution to preventing presidential abuse of power lies in improving the accountability of the president under the law, outside the scope of impeachment, which should be Congress’s last resort. Four things should be done to accomplish that:

First, Congress should strengthen whistle-blower protections. “One of the best, most important ways to constrain and prevent this sort of malfeasance is to provide adequate incentives for and protections for folks who blow the whistle on bad behavior,” said Matthew Stephenson, a Harvard law professor who focuses on anti-corruption. House Democrats introduced legislation, known as the Protecting Our Democracy Act, which seeks to implement a slew of reforms, including expanding whistle-blower protection to political appointees. The reason this is important is that whistle-blowing is effectively a stimulant for investigations. The Ukraine scandal, which led to Trump’s first impeachment, for example, was the direct result of a concerned official raising the alarm.

"Until presidents can be indicted, they will always be, by definition, above the law."

Second, Congress must strengthen its oversight over the presidency in tangible ways. That means being able to more effectively enforce Congress’s subpoena power. “You can’t do oversight without power behind those subpoenas, and you certainly can’t hold a president and an administration accountable if you can’t require them to give information about the conduct of their office and whether they’re faithfully executing the laws,” Representative Adam Schiff of California said.

Indeed, Trump officials were able to evade subpoenas and effectively run down the clock because court proceedings to enforce congressional subpoenas can take a long time. The House, for example, tried but failed to get Don McGahn, who served as White House counsel under Trump, to testify in front of the Judiciary Committee about Trump’s obstruction of justice during the Mueller probe. Although McGahn did cooperate with Mueller, parts of the final report were redacted by the Justice Department. Congress, in its oversight capacity, should have been able to reconstruct parts of the investigation. Doing so may have prevented the Trump administration from getting away with its efforts to spin the final Mueller report as an exoneration of Trump, which it very clearly was not.

That’s why reforming subpoena power, a critical step in bolstering Congress as a check on the president, ought to include the possibility of fast-tracking court proceedings for congressional subpoenas and issuing fines for those who defy them.

Third, President Biden should appoint a White House ethics czar, which he has yet to do, to ensure that the White House correctly implements and abides by high ethical standards. It’s important for the Biden team to codify in clear terms, for example, the limits of the White House’s interactions with the Department of Justice in order to guarantee greater independence of the department. And there are already clear signs that the Biden team needs an ethics czar: Though Biden has released public logs of White House visitors — something the Trump administration stopped doing — he has chosen not to disclose virtual meetings. This is a mistake, given that transparency in White House communications is a key tool to protect the Department of Justice’s independence. An ethics czar dedicated to getting input from public accountability groups could change such policies and set a new norm.

Lastly, the Department of Justice should revisit its policy, issued by the Office of Legal Counsel, that a sitting president cannot be indicted. This is not the law of the land, and the constitutionality of whether a president can be indicted while in office has yet to be determined by the courts. Rather, it lies in a tradition that began in 1973. The head of the OLC at the time argued in a memo that “a necessity to defend a criminal trial and to attend court . . . would interfere with the president’s unique official duties.”

It might sound reasonable to say that indicting a sitting president could pose political problems — and potential national security risks — because a criminal trial would effectively incapacitate a president. But an indictment does not necessarily mean that the president has to sit through a criminal trial. That could always be postponed until a president leaves office. In that 1973 memo, the rationale for not indicting a sitting president, even if all proceedings are deferred until they are out of office, rests merely on the perceived damage the image of the office of the president might endure. “The spectacle of an indicted president still trying to serve as chief executive boggles the imagination,” the memo said.

A greater spectacle, however, is a reckless, authoritarian president who is seen on the world stage bending the rule of law to his will. That’s why presidents should be indicted for crimes that they commit, with their trials postponed to when they leave office. Had Mueller been able to operate under a guideline that allowed for Trump’s indictment, the former president probably would have faced legal accountability for his early acts of obstruction of justice. That, on its own, could have deterred him from obstructing justice later in his presidency, as he did during his first impeachment inquiry.

So while presidents should not, for logistical reasons, be required to be a part of a criminal trial while in office, they should not be immune from indictments. Because until presidents can be indicted, they will always be, by definition, above the law.