If Joe Biden wins the election, one of his first orders of business has to be to enact his proposed package of ethics reforms to ensure that no future president can replicate the abuse of power by the current administration. We must return independence to the Justice Department, tackle conflicts of interest, restore ethics in government, hold lobbyists and policymakers accountable, and reduce the influence of money in politics.
A recent article by Jonathan Chait makes the case to prosecute Donald Trump after he leaves office. But Chait frames this as a choice between “the rule of law and mutual toleration.” Do we hold leaders accountable? Or do we ensure a peaceful transition of power? Chait ultimately selects the rule of law, which in this case is prosecution. While I would support a prosecution, I think the framing of this situation is not complete. The rule of law and mutual toleration do not have to be in tension if we run strong ethics reforms, including the independence of prosecutors.
Chait defines the principle of mutual toleration as leaders accepting the legitimacy of their opponents. In times of clear criminal activity, however, the impact of accepting legitimacy is an erosion of the rule of law. Chait cites the pardon of Richard Nixon, which is hailed as an act of unification by Gerald Ford, but has also played a critical role in accepting legitimacy in certain actions by Trump. Chait offers instances from other countries, where acceptance of impunity by their leaders also preceded the rise of extremism and a breakdown of the governing establishment.
Yet Chait understands that favoring prosecution over mutual toleration is not a surefire plan. Trump has driven this escalation of a divisive climate, reducing the chances of support for such a plan from Republicans. Chait argues it will be difficult to avoid the appearance of politics, regardless of the legitimacy of this move. But our choices are not limited to condoned corruption or tainted prosecution. We can avoid both and ensure that no future president takes criminal actions with ethics reforms.
Biden has laid out government reforms which reinforce the rule of law for policymakers and will protect against future criminal actions. All facets of the plan are important, but the promise of Biden to return independence to the Justice Department is a critical move that will ensure that no future prosecutions are tainted by politics. Biden has already committed, if he is elected, not to interfere with any potential Justice Department actions on Trump. He will rightly leave the decisions to the prosecutors.
A push for ethics reforms will find support in Congress. House Democrats, led by Speaker Nancy Pelosi, have shown us that strong ethics reforms are a priority by making the first bill introduced with this session for Congress about measures to protect against corruption and abuse of power. The bill passed with House Democrats in control, however, Senate Majority Leader Mitch McConnell has not allowed a vote for it in his chamber.
If Americans in support of strong ethics reforms work hard over these next several weeks to elect Democrats, Biden could enact these ethics reforms into law as president. One prosecution need not determine our future. We have the power to reclaim our norms, bolster these government systems, and ensure that all our leaders in office are held accountable.
Jared Rifis is a lawyer who worked for Senate Majority Leader Harry Reid.
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