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Repairing Our Democracy: A Primer on the Damage Done & Repairs Needed
June 28, 2021
October 28, 2020
Editorial credit: Nuno21 / Shutterstock.com
Early in 2019, in the Open Letter to the President and the Congress with which we began our effort, we listed several components of a vibrant democracy that were under assault and, by way of example, listed Presidential actions that undermined those basic principles. In the 18 months that have followed, the President amplified those assaults.
As the November 3 election draws near, it is important for all lawyers in this great country – Republicans, Democrats and Independents alike – who have a deep and abiding belief in the basic principles that have guided this Nation since its founding to consider the impact of what the President has done on the future of our democracy. That democracy is a delicate arrangement and depends for its survival on widespread and largely voluntary adherence to established rules and norms and on leaders who support them. Time and time again, this President has ignored those rules, ignored those norms and has urged others to do so. If continued, behavior of that kind has ruinous potential for us all.
Set out below are seven of the most important of those fundamental democratic principles and examples of the way the President, his associates and enablers have assaulted them since the moment they assumed office almost four years ago. After considering those principles and the degradation of them the President has attempted, we ask you to think about what you can do, and what you can urge others to do, through advocacy, litigation, voting and the other activities in which lawyers have historically engaged in troubled times to stop what in the last analysis has all of the earmarks of a coup in slow motion.
Section 1: Undermining Separation of Powers and lack of respect for co-equal nature of other branches of government
The basic strength of our democracy begins with the separation of powers that forms the basic structure of our Constitutional system. Nevertheless, the President has consistently undermined that basic Constitutional structure in the following ways.
Violation | What Happened | Why it Matters | Needed Reform |
|---|---|---|---|
| Systemic use of “acting” appointments to cabinet secretary positions. | Trump has repeatedly appointed cabinet secretaries in acting capacities, with the effect of avoiding Congressional oversight of nominees and Senate confirmation. | The Constitution requires this level of oversight and separation of powers does not work if one branch refuses to participate in it. | Willingness to impeach cabinet officials who are illegally appointed; withhold appropriations to agencies illegally led; creation of Standing Committee on the Constitution empowered to investigate and make referrals for impeachment or other proceedings against Executive Branch officials implicated in unconstitutional behavior. |
| Refusal to remove appointees who are serving illegally. | The GAO has ruled that Chad F. Wolf, the acting Homeland Security Director and Kenneth T. Cuccinelli, his deputy are serving illegally and a federal judge has also ruled that Mr. Cuccinelli’s appointment was illegal. | Observance of rulings by federal courts and agencies like the GAO is an essential safeguard against Presidential action the crosses boundaries set by the Constitution or by Congress. | Willingness to impeach cabinet officials who are illegally appointed. |
| Refusal to submit to Congressional oversight. | The Trump administration has repeatedly refused to submit to Congressional oversight, including ignoring subpoenas and other Congressional requests for information and testimony. | The Constitution envisions Congressional oversight and separation of powers does not work if the Executive branch refuses to participate in it. | Willingness to enforce oversight requests through impeachment of Executive Branch appointees who fail to comply with them, criminal referrals, subpoenas and contempt of Congress resolutions. |
| Use of Executive Orders to attempt to avoid and/or countermand the legislative process. | Repeated use of EOs to redeploy Congressionally appropriated funds to, for example, build the border wall, and other policy objectives for which EOs are not appropriate. | Use of EOs in this manner is a bad faith effort to undermine another branch’s constitutionally mandated authority. | Willingness to pass legislation to countermand specific EOs; new legislation setting out limits on EOs; litigation to seek court rulings on extent of power of Eos. |
| Refusal to provide intelligence briefings to relevant Congressional committees. | Politically motivated efforts to avoid reporting to relevant committees of Congress on threats to U.S. national security. | Refusal to share intelligence information with Congress undermines our system of checks and balances by effectively making one person the sole decision-maker in matters with profound implications for national security and protection of the American public. | Willingness to impeach, hold in contempt of Congress or, if appropriate, make criminal referrals in respect of Executive Branch officials who refuse to appear or provide information to Congress. |
Section 2: Abuse of the Department of Justice for Political Purposes
Nonpartisan independence, integrity and competence are critical to the fairness of our federal criminal justice system. Nevertheless, the President has repeatedly undermined that independence, integrity and competence in the following ways.
Violation | What Happened | Why it Matters | Needed Reform |
|---|---|---|---|
| Firing of AGs for inappropriate reasons relating to the President’s own criminal culpability. | Jeff Sessions fired for failing to prevent an investigation of the President’s ties to Russia in the 2016 campaign. | AGs are meant to be chief law enforcement officers and their integrity and independence should not be in doubt. | Congressional investigation of removal of an AG or DOJ appointees by the President when necessary or appropriate to determine undue Presidential pressure or influence. |
| Repeated attacks on the integrity and independence of the Department of Justice. | Trump called the lawful investigation of 2016 election a “rigged witch hunt;” attacked DOJ for investigating serious financial crimes against GOP lawmakers because of political considerations and urged James Comey, then the Director of the FBI, to drop the investigation of Michael Flynn. | The integrity and independence of the DOJ is paramount. | See endnote. |
| Abuse of pardon power. | Roger Stone pardoned for transparently self-interested reasons; Joe Arpaio pardoned for “just doing his job” when he defied a lawful order issued by a federal court. | The President’s pardon power is extensive but cannot be so unlimited as to allow for self-interested use or use that undermines the rule of law. | Willingness to impeach the President for abuses of pardon power; new legislation circumscribing pardon power. |
| Abuse of Rule 48(a) dismissals. | Attempt to dismiss case against General Flynn, even after he had already pled guilty for underlying crimes. | The DOJ has repeatedly argued in court that its power to dismiss cases under Rule 48(a) is effectively unlimited and includes the ability to act in bad faith in making such prosecutorial decisions. | Reform of Rule 48(a) to make explicit that DOJ discretion is limited and requires good faith and to specify authorized judicial remedies for DOJ bad faith dismissals. |
| Abuse of investigative processes for political purposes. | Creation of “Durham” investigation for transparent purpose of creating a political benefit for the President. | The integrity and independence of the DOJ is paramount. | Willingness to impeach officials participating in this activity. |
| Interference in investigations for political purposes. | Misleading summary of Mueller report for public. | The integrity and independence of the DOJ is paramount. | See endnote. |
Section 3: Abuse of Government Officials and Agencies for Political Purposes
A vibrant democracy requires an environment in which governmental agencies and officials are able to carry out their duties and responsibilities free from unwarranted interference designed to advance personal or political interests. Nevertheless, the President has repeatedly interfered with agencies and officials to advance personal and political interests in the following ways.
Violation | What Happened | Why it Matters | Needed Reform |
|---|---|---|---|
| Extensive, regular violations of the Hatch Act. | President politicizes every public event, openly campaigns on government property. | Government property and resources belong to all of the people and should not be used for partisan purposes. | Make the Hatch Act, or some variant thereof, applicable to the President and Vice-President. |
| Use of federal law enforcement to attack protestors – for a political photo opportunity. | Park Police, DOJ officials, and even chairman of the Joint Chiefs co-opted for a politically-orchestrated event. | Government officials take an oath to defend the Constitution, not the President and they cannot trample on rights the Constitution protects. | Vigorous Congressional oversight and investigations and new legislation, if any, that oversight suggests. |
| Interference in regulatory process for approval of medications and vaccines. | President has repeatedly pressured leaders at FDA, CDC, NIH and others to approve tests, drugs, vaccines and other therapies for COVID-19 on the basis of a political timeline; vaccine manufactures have stated they will not rush their process. | The integrity, independence and excellence of these government agencies has long been recognized around the world and is being destroyed. | Willingness to impeach, investigate and otherwise hold accountable officials who engage in this behavior or who facilitate or enable it. |
| Retaliation against whistleblowers and others who seek accountability. | Alexander Vindman is the poster child for this behavior – he told his father that he would be “ok” because he was doing the right thing; he was subsequently fired, as was his brother. | Failing to protect whistleblowers weakens one of the most effective means of enforcing legal and ethical standards. | Willingness to impeach, investigate and otherwise hold accountable officials who engage in this behavior or who facilitate or enable it. |
| Firing of Inspectors General. | Fired numerous Inspectors General for doing their jobs. | Ignoring a half century of safeguards on misuse of funds and power created by Congress post-Watergate. | Willingness to impeach, investigate and otherwise hold accountable officials who engage in this behavior or who facilitate or enable it. |
Section 4: Impropriety and appearances of impropriety in conduct of foreign policy and government business
A democratic government is one in which officials execute domestic and foreign policy solely to advance the common good. Nevertheless, the President has repeatedly engaged in activities that advanced his interests or those of family members and associates and needlessly and recklessly impaired the reputation of the United States in the community of nations.
Violation | What Happened | Why it Matters | Needed Reform |
|---|---|---|---|
| Hiring self-evidently unqualified family members for key government positions and filling political roles outside of government while in some cases profiting from business relationships those roles enhance. | With the President’s knowledge and approval, Ivanka Trump, Jared Kushner, Donald Trump, Jr. and Eric Trump are consistently acting in a manner that blurs their official or political roles with their private business interests. | Creation of an autocratic presidency is contrary to the founding principles of our country and our constitution. | Strengthening anti-nepotism laws; expanding roles in Administration that must be confirmed by Congress. Strengthen legislation prohibiting self-interested deal-making while in office. |
| Obsequious engagement with Vladimir Putin. | Repeated meetings and calls held in private with no U.S. interpreter or independent readout of conversation. | U.S. foreign and national security policy cannot be conducted in the absence of transparency and information from the President and cannot appear to support autocrats, despots and violators of human rights. | See endnote. |
| Numerous business deals between government and private corporations with questionable motivations and transparency. | Trump trumpeted a large loan to Kodak Corporation which was later abandoned amidst allegations of widespread insider trading by Kodak board members and other insiders; Zach Fuentes, a former Trump aide, formed an import company and 11 days later won a government contract with limited public bidding to supply medical masks, many of which turned out to be unfit for medical use. | Transparency and public bidding are essential in government loans to and purchases from private industry if the public is to have confidence that insiders are not being favored with receipt of taxpayer dollars. | Rigorous enforcement of public bidding and lending laws by Inspectors General and a Department of Justice freed to pursue suspicious activity where it sees it. |
Section 5: Respect for Integrity of the Voting Process
Nothing – yes, nothing - is more important to the preservation of our democracy than the integrity of the voting process and a national belief that the results of that process are accurate. That integrity and that belief are the very foundation of our system of democratic self-governance. Nevertheless, the President has time and time again taken steps to interfere with the voting process and the credibility of that process for his own advantage and that of the Republican Party.
Violation | What Happened | Why it Matters | Needed Reform |
|---|---|---|---|
| Repeated statements questioning integrity of voting in 2016 and 2020. | The President has stated without evidence that voting by mail will lead to “massive fraud”; that the election will be “rigged” and that he is not sure that he will abide by the election results. | In a democracy, it is not only essential that elections be fair but that the public believe that they are fair. Undermining that belief is as dangerous to a democracy as undermining the integrity of the voting process itself. | Create a national non-partisan national election oversight board with the power to investigate and issue reports on election integrity. |
| Attempting to undermine postal delivery service in order to interfere with delivery of mail-in ballots. | Trump opposed funding the Post Offices needed to ensure that mail-in ballots would be processed in timely fashion this November claiming that those ballots would be largely “fraudulent.” | Particularly at a time when gatherings are restricted for public health reasons and the number of available polling places is being reduced in many judications, the ability to vote by mail is essential to ensure that every citizen has a real opportunity to vote. | Congressional funding and oversight of the Post Office designed to ensure that voting by mail is, and remains, a reliable and efficient voting mechanism for all citizens. |
| Trump has engaged in a concerted post-election effort to undermine confidence in the election against all evidence from Federal, state, and local officials. | An orchestrated strategy based on fictional fraud and conspiracy claims, numerous frivolous lawsuits to invalidate legal votes, pressure on state officials to violate state law to reverse election results, and demands for Congressional support to reject the certified votes of presidential electors. | A hallmark of healthy democracies is the acceptance of election results and the orderly transfer of power. | Voting and other reforms, as well as civic education, are necessary to encourage adherence to norms that have been trampled in the 2020 election season. See endnote. |
Section 6: Truthfulness of Public Officials
Our democracy is built on trust and telling the people the truth about public matters. Maintenance of that trust and the ability of Americans to make informed and rational public decisions require our leaders to provide honest, factual information with the possible and rare exception of troop movements and the like in time or war. Nevertheless, the President has routinely and repeatedly lied to the public about matters large and small, embraced others who have lied to the public and has facilitated and approved of the widespread dissemination of falsehoods and disinformation.
Violation | What Happened | Why it Matters | Needed Reform |
|---|---|---|---|
| Use of lies and misinformation as tools of public policy. | Trump and cabinet officials have repeatedly used lies and misinformation as ways in official statements and other communications. Trump himself has issued more than 20,000 false or misleading statements while in office. | Without facts and a capacity to rely on statements from the government as being true, it is impossible for citizens to make informed and rational decisions. | Willingness to investigate and, where appropriate, impeach government officials who lie. |
| Use of lies and misinformation to disrupt and undermine lawful investigations. | Trump, his lawyers, cabinet officials, advisors and others have repeatedly used lies and misinformation to stymie transparency, oversight and lawful investigations. | Transparency, oversight and investigations are essential ingredients of a vibrant democracy. Undermining them undermines democracy itself. | See endnote. |
| Creation of a culture of dishonesty. | Not only has the President lied repeatedly but he has surrounded himself with people who have done so as well, including Michael Flynn, Michael Cohen, Paul Manafort, George Papadopoulos and Roger Stone. | Culture drives action in a powerful way. A culture of dishonesty gives free reign to liars and can completely pollute the democratic process. | See endnote. |
7: Fair Treatment and Civil Discourse, Including Respect for the Rights and Dignity of all Individuals, Regardless of Race, Ethnicity, National Origin, Religion, Gender, Disability or Sexual Orientation
Fair treatment and civil discourse, including respect for the rights and dignity of all individuals, regardless of race ethnicity, national origin, religion, gender, disability or sexual orientation, is an essential ingredient of American democracy. Nevertheless, from the moment he took office, the President has repeatedly and consistently violated that principle.
Violation | What Happened | Why it Matters | Needed Reform |
|---|---|---|---|
| Equating violent white nationalists with peaceful protesters. | Just months after he assumed office, the President said “some very fine people [were] on both sides” of the murderous white-nationalist demonstrations in Charlottesville. More recently, during Presidential debate when asked to condemn the activities and philosophy of the Proud Boys, an avowedly white nationalist paramilitary group, the President said instead that they should “stand back and stand by.” | Comments like that from the highest office in the land aid and encourage the kind of dangerously racist activity and violent activity in which these groups have demonstrated that they are perfectly willing to engage. | Unlike the activities described in the preceding sections, there are no institutional reforms that can prevent this kind of activity. Statements and activities like this are the product of this President’s mindset and philosophy. Impeachment and conviction or removal from office at an ensuing election are the only sure remedies. |
| Using family separation as a supposed deterrent to illegal migration. | The President approved the removal of thousands of children from their border-crossing parents. | Governmental separation of little children and their parents under all but the most extraordinary circumstances is inexcusable. Using separation as a method of supposed deterrence is unspeakably cruel - activity of a kind that, until recently, one could only imagine happening under the most brutal regimes. The cruelty of that activity weakens the Nation's moral fiber internally and severely undercuts its moral standing in the international community. | See the “Needed Reform” listed in Section 7, Item 1, above. |
| Making public insults based on race and gender. | The President publicly insulted Abby Phillip, April Ryan and Yamiche Alcindor, threerespected African-American female journalists, calling their questions “stupid” and calling Ms. Ryan a “loser.” Of Carley Fiorina, presidential candidate, former CEO of Hewlett-Packard and the first woman to lead a Fortune top 20 company, he said "Look at that face! Would anyone vote for that? Can you imagine that, the face of our next president?" Of journalist Megyn Kelley’s questioning of him during a Presidential debate, he said “You could see there was blood coming out of her eyes. Blood coming out of her wherever." And of women in general, he has said “And when you’re a star, [women] let you do it. You can do anything. . . . Grab ’em by the [genitals]. You can do anything.” | Insults of that kind from the President of the United States both before and after he assumed office severely undermine efforts for racial and gender equality in the workplace that have been underway for a generation. | See the “Needed Reform” listed in Section 7, Item 1, above. |
| Insulting members of Congress and the judiciary on the basis of race and national origin. | The President has said that several minority members of the House of Representatives with whom he disagreed should go back to their countries even though all but one of them were born here. He attacked the impartiality of a federal judge presiding over a case in which he was personally involved saying that the judge was a ”Mexican” and therefore couldn’t be fair even though the judge was born in Indiana. | Race-baiting nonsense of this kind from the President of the United States displays a level of ignorance of, and disrespect for, members of different racial, ethnic, national origin and religious backgrounds that degrades the Presidential office and undermines national efforts for racial equality. | See the “Needed Reform” listed in Section 7, Item 1, above. |
| Publicly praising terrorist organizations. | Of adherents to Q-Anon, whose racist lunacy has led the FBI to label the group a terrorist organization, he has said “I’ve heard these are people that love our country . . . So I don’t know really anything about it other than they do supposedly like me.” | Presidential praise for a terrorist organization creates a clear danger that its efforts, activities and adherents will increase. | See the “Needed Reform” listed in Section 7, Item 1, above. |
| Publicly praising people who support terrorist organizations | He has characterized Georgia Congressional candidate Marjorie Taylor Greene as a “future Republican star” notwithstanding her proud public embrace of Q-Anon and the vaporous nonsense it exudes and her public promise that, if elected, she will work tirelessly to kick “that bitch,” her words, Nancy Pelosi out of office. | Conferring “star” status on individuals who embrace those ideas and make those kinds of statements legitimizes and supports behavior and positions that have absolutely no place in a vibrant democracy. | See the “Needed Reform” listed in Section 7, Item 1, above. |
| Publicly supporting individuals who have engaged in racist activity. | The President invited Mark and Patricia McCloskey to speak at this year’s Republican national convention even though they are awaiting trial on felony charges for pointing loaded firearms at peaceful African-American protesters who were walking by their house. | Notwithstanding the presumption of innocence that attends every criminal charge, Presidential support of individuals who have clearly engaged in unlawful, racist activity provides dangerous encouragement to like-minded individuals to engage in similar unlawful activity as well as unjustifiable pressure on prosecutors, judges and jurors to avoid legally warranted convictions. | See the “Needed Reform” listed in Section 7, Item 1, above. |
ENDNOTE
In some cases, the best solution to an identified problem is not readily apparent. It is likely that some solutions are included in the Protecting Our Democracy Act, now pending in the House and Senate, and that others will emerge only through thoughtful reflection and study by Congress and interested individuals and institutions after this hugely divisive election cycle concludes. Insofar as the Department of Justice is concerned, twelve excellent recommendations for reform are contained in the October 12, 2020 Report on the Department of Justice and the Rule of Law from the University of Pennsylvania’s Center for Ethics and the Rule of Law, along with Citizens for Responsibility and Ethics in Washington.
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