By Elie Mystal
"Information Clearing House" - Politicians have been campaigning against government corruption probably since “campaigning” was invented. Usually, people asking for power promise to root out the corruption and graft committed by the officials they hope to replace. But Donald Trump and the modern Republican Party are trying to put a new twist on this old saw: They’re making corruption go away by making graft and self-dealing perfectly legal for public officials. Trump isn’t draining “the swamp”; he and his cronies are trying to make the swamp very legal, and very cool.
Yesterday, longtime Trump aide and confidant Roger Stone was sentenced for his conviction on charges of lying to Congress and tampering with witnesses. The sentencing guidelines called for a prison sentence of seven to nine years, but District Judge Amy Berman Jackson gave Stone just 40 months. The light sentence comes after Attorney General William Barr overruled his prosecutors on the case, and asked that Stone be let free with no jail time. Judge Jackson, an appointee of President Barack Obama, probably wasn’t unduly influenced by Barr’s request that she go light on one of Trump’s homies. But Barr’s meddling and Stone’s close relationship with the president make Jackson’s leniency appear unfair.
Meanwhile, just two days earlier, Trump pardoned or commuted the sentences of 11 people, including former New York police commissioner Bernard Kerik. Kerik is a close friend of another Trump crony, Rudy Giuliani. In fact, all those granted clemency were able to make some sort of personal connection with Trump, either directly or through the state propaganda network, Fox News. Some had hosted campaign fundraisers or inauguration parties for Trump. And then there’s former Illinois governor Rod Blagojevich. Blagojevich’s conviction for abusing his power by trying to sell Barack Obama’s former Senate seat was widely cited as an on-point comparison for Trump’s own abuse of power. Trump might as well have been looking in the mirror when he commuted Blagojevich’s sentence.
Trump’s use of the pardon power in this way is, by itself, a corrupt abuse of power. The issue, as with all issues of public corruption, is not whether the official has the authority to do something, it’s whether the official did the thing for a “corrupt purpose.” Donald Trump can pardon people. All presidents have that power. But if he does it for a corrupt purpose, if he does it for his personal political or financial self-interest and not the interest of the country, then that is supposed to be illegal.Trump’s willingness to use his pardon power to spring people he likes on TV is likely just a preview. Many expect Trump to now pardon his former associates Stone, former Trump campaign CEO Paul Manafort, and former national security adviser Michael Flynn. And if Giuliani ever gets convicted for his potentially corrupt dealings, we can certainly expect a pardon for him, too. What links all these men—other than the fetid aroma that wafts off their decayed moral characters—is that they are the ones who kept their mouths shut and didn’t rat on Trump. The one who didn’t continue to lie, Trump’s former personal lawyer Michael Cohen, is unlikely to receive any clemency from the president. I don’t have to wonder why.
But Trump will not be held accountable for these or future abuses of power. That’s because the Republican Senate acquitted him of impeachment charges over the abuse of his power. Republicans decided, for the first time in American history, that abuse of power is not at odds with the American system of government. That he can abuse the powers of his office with impunity is the only lesson Trump learned from impeachment, Susan Collins.
As brazenly corrupt as post-impeachment Trump has been, he is, as usual, just a manifestation of our national sickness and not its root cause. When it comes to public corruption, all branches of government are in on grift.
Even before Trump took office—in fact, just as he clinched the Republican nomination for president in June 2016—the Supreme Court ruled, unanimously, to overturn a bribery conviction against former Virginia governor Bob McDonnell. McDonnell had been accused and convicted of bribery after he took a series of meetings with the CEO of a pharmaceutical company in exchange for “gifts” and loans to help the governor with his financial troubles. In McDonnell v. US, Chief Justice John Roberts, writing for an 8-0 majority, determined that McDonnell took no “official acts” in exchange for the gifts. The Supreme Court would have us believe that merely selling access is not a crime for public officials.
The court’s “meh, whatever” approach to public corruption is unlikely to be limited to McDonnell. Already, Bill Baroni and Bridget Kelly, the only two people to be held accountable for the scheme to punish Chris Christie’s political rivals by grinding traffic to a halt across the tri-state area (colloquially known as “Bridgegate”), have appealed their convictions to the Supreme Court under the McDonnell precedent. We’re still waiting for the court’s ruling, but indications from oral arguments were that the justices are inclined to declare that it’s not a crime for government officials to lie about their corrupt motives.
The Supreme Court, the Republican-controlled Senate, and the current president all seem to be saying the same thing: Public corruption no longer matters. In the words of Acting White House Chief of Staff Mick Mulvaney, we’re all supposed to “get over it.”
To make matters worse, the media also seems to have decided not to care about public corruption. Arguably, the fourth estate’s most essential job in a democracy is to expose corruption that would otherwise go unnoticed. But the media today seem as inured to it as the Republican-controlled branches of government. During this week’s Democratic presidential debate in Nevada, the moderators didn’t even ask a question about corruption, Trump’s pardons, or whether anybody on stage was willing to do anything about it.
The Democrats are trying to fight back against this societal willingness to turn a blind eye to corruption in the government. House Democrats have passed HR 1, a sweeping anti-corruption bill that focuses on election integrity and campaign ethics. But it languishes because Mitch McConnell will not bring it up for a vote. It’s amazing that McConnell is ever allowed to speak in front of a camera without being asked why he refuses to bring a nonpartisan, anti-corruption measure to the Senate floor.
Among the Democrats left running for president, only Elizabeth Warren has made the fight against corruption a centerpiece of her campaign. She, and Kamala Harris when she was in the race, have been the only ones promising to do everything they can to hold Trump and his cronies accountable for their actions.
Warren’s proposals are far more detailed and lawful than Trump’s despotic and petty threats to “lock up” his political rivals. She has been pushing her Anti-Corruption and Public Integrity Act since 2018. The bill addresses public conflicts of interest and applies ethics rules to all senior government officials, including White House staff.
And she’s promised to instruct her Department of Justice to establish a task force to look into crimes and corruption committed by this administration. This is a huge departure from the approach taken by the last Democratic president, Barack Obama, when he had an opportunity to address the misdeeds of the antecedent administration. Obama chose not to pursue prosecutions for war crimes and self-dealing on the part of Dick Cheney and his band of Republican charlatans. Obama felt it was more important for the country to move forward, past the George W. Bush era, and didn’t want to become embroiled in the partisan fights of the past. Rhetorically, it was the right note. Practically, it was wrong message. Why should Donald Trump fear post-presidential accountability when Dick Cheney bamboozled the country into a full-scale war and still gets to roam around free?
Warren sees things differently: “If we are to move forward to restore public confidence in government and deter future wrongdoing, we cannot simply sweep this corruption under the rug in a new administration, “
The task force and the commitment to codify ethical standards into law are, to me, the most important distinguishing feature of Warren’s campaign. That task force would take the decision to prosecute out of her hands, or the hands of her political appointees, and instead allow career civil servants to do the work. Warren’s idea is the antithesis to how Attorney General William Barr has turned the Justice Department into Trump’s personal revenge squad.
We cannot defeat Trump and then just go back to business as usual. We cannot focus on our future without first reckoning with our past. If Trump and his cronies are allowed to get away with what they’ve done, then Trump and the Republicans will have essentially made corruption a valid and legal strategy. No president ever again will fear consequences for abusing their power, at least so long as they can maintain control of their party in the Senate.
Fighting corruption, fighting to “clean up” government, is always an uphill battle. Everybody from Teddy Roosevelt to Fiorello La Guardia to Ralph Nader has found that even their victories were fleeting. But if we abandon the fight, as the Supreme Court has done, as the Republican Party has done, and as even some Democrats are willing to do, then we don’t deserve the democratic self-government Trump is trying to take away from us.
Trump must be held accountable by the next administration, or else Trumpism has already won.
Elie Mystal is The Nation's Justice Correspondent—covering the courts, the criminal justice system, and politics—and the force behind the magazine's monthly column, "Objection!" He is also an Alfred Knobler Fellow at the Type Media Center.
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