With just three weeks left until the Inauguration of Joe Biden, the end of Donald Trump’s Presidency is firmly in sight. Trump, despite having finally backed down and signed the COVID-19 relief bill, will surely look to cause more mayhem before he leaves office. Over the weekend, he urged his followers, via Twitter, to protest in Washington on January 6th, the day that the new Congress is scheduled to ratify the results of the Electoral College.
Trump’s departure will prompt cries of relief in many parts of the country, but there is now vital work to be done. The past four years have taught us that the American system of government is no match for a President who, like Trump, will not hesitate to break long-established rules and norms. During his four years in office, the forty-fifth President has lied on a daily basis; purged officials who challenged him; used his vast social-media following to intimidate other elected Republicans; charged the federal government millions of dollars for the use of his private businesses; awarded prominent positions to his family members; pardoned some of his closest political allies; and, finally, tried to overturn a perfectly legitimate election. Conceivably, he could run for office again in four years. What can be done to Trump-proof the Presidency against him or an acolyte?
One seemingly obvious reform is to change the voting system to prevent another demagogue from taking power despite losing the popular vote. But, in this area, as in others, the U.S. Constitution is a huge barrier. As the historian Eric Hobsbawm noted almost twenty years ago, the United States is trapped in “the straitjacket of an eighteenth-century constitution reinforced by two centuries of Talmudic exegesis by the lawyers.” Getting rid of the Electoral College would require a constitutional amendment, which, in turn, would require a two-thirds majority in both the House and the Senate, plus ratification by three-quarters of the state legislatures. Given the red-blue divide, that’s not going to happen anytime soon.
One way to circumvent the Electoral College would be for more states to join the National Popular Vote Interstate Compact, under which they would agree to award all of their electoral votes to the candidate who gets the most votes nationwide. To date, fifteen states and the District of Columbia have signed on; together, they have a hundred and ninety-six votes in the Electoral College. Once the adherents to the compact had two hundred and seventy votes among them, they could guarantee that the winner of the popular vote would be elected, say supporters of the compact. Rick Hertzberg, my former colleague and a longtime advocate of the compact, called the current system absurdly antiquated in an e-mail on Monday. “I mean, the total population of the entire United States when the constitution was adopted was less than 4 million. Now, twenty-seven states are individually more populous than that.”
Another reform consistent with retaining the Electoral College would be adopting ranked-choice voting, which is already being used in Maine and Alaska, as well as in places like Ireland and New Zealand. Under this system, voters would be asked to list their preferred candidates in order. “It means that voters can go for the Green Party but if no candidate has 50 percent majority on first count, then their votes transfer until someone does,” Jeff Colgan, a political scientist at Brown, told me in an e-mail. If this system had been in effect in 2016, Hillary Clinton might have won some states where Jill Stein got a lot of votes. (For this to happen, many Stein voters would have had to list Clinton as their second preference.)
Even if the voting system were retooled, however, that wouldn’t preclude the election of a demagogue who was more popular than Trump. So, whatever voting system we use, it’s imperative that we strengthen other types of defenses against an authoritarian leader, and, here again, there are a number of options available. To begin with, it’s vital to insure that no future President can get away with refusing to release their tax returns, which contain information about their financial obligations and other potential conflicts of interest. Until September, 2020, when the Times published an analysis of more than two decades of Trump’s tax data, which it had obtained, he had successfully hidden from voters the fact that, in the decade before he ran for office, he paid virtually nothing in federal income tax, partly because he secured a refund of $72.9 million in 2010, and that he had personally guaranteed more than three hundred million dollars of loans that will come due in the next four years.
By refusing to release his tax returns, Trump violated a Presidential norm that was established relatively recently. Richard Nixon instituted it in 1973, at the height of Watergate. “People have got to know whether or not their President is a crook. Well, I am not a crook,” Nixon famously said. In the wake of Trump, statutory requirements are in order. David Cay Johnston, an investigative journalist who has written widely on Trump and his finances, thinks that Congress should amend the U.S. tax code to require the Internal Revenue Service to make public six years of tax returns and other tax information, including the returns for any majority-owned businesses, of anyone who files to run for President. “We may not be able to require a president to release his or her tax returns as a condition of taking office, but we can shift the duty to the IRS,” Johnston, who is now working on a third Trump book, wrote to me.
Another area that requires immediate congressional action is the ethics laws that are meant to deal with potential conflicts of interest. Currently, these statutes contain a huge loophole for the President and Vice-President—which Trump exploited when, on taking office, he refused to give up ownership of any of his businesses, including a new Trump International Hotel situated just a few blocks from the White House. Since then, the hotel has become a meeting spot for diplomats, lobbyists, and others seeking to ingratiate themselves with the President. In violation of the emoluments clause of the Constitution, arguably, it has accepted payments from foreign governments.
Back in 2018, the watchdog group Citizens for Responsibility and Ethics in Washington published an ethics-reform plan that could serve as the basis for future action. It called on Congress to create a legal requirement for the incoming President and Vice-President to divest any assets that created a potential conflict of interest. The group also proposed legislation that would mandate additional financial disclosures from Presidents and Vice-Presidents, limit contributions to Presidential Inaugurations and future Presidential libraries, strengthen existing anti-nepotism statutes, and require the full and prompt disclosure of White House visitor logs.
The group also noted that the problem isn’t just gaps in the ethics laws: it’s that existing statutes haven’t been properly enforced. A prime example is the Hatch Act of 1939, which bars federal employees, excepting only the President and Vice-President, from engaging in partisan politics, and prohibits the use of federal funds for political purposes. In June, 2019, the Office of Special Counsel, an independent federal agency that is supposed to insure compliance with the Hatch Act, recommended that Kellyanne Conway, a White House adviser, be fired because she had violated the statute on numerous occasions. Trump and Conway ignored the O.S.C.’s recommendation. “When we used to film George W. Bush, we had to go to all sorts of lengths to avoid breaking the law,” Stuart Stevens, a veteran Republican political consultant turned Never Trumper, told me. He said that the Trump Administration had brazenly conducted campaign “events using official government employees and official government sites. These are taxpayer-funded events.”
But the O.S.C.’s powers are limited to advising the White House on Hatch Act breaches: generally, the President is the only one who can terminate political appointees who violate the law. To give the ethics laws and guidelines more teeth, a more powerful enforcer is urgently needed. Citizens for Responsibility and Ethics in Washington said that this could be accomplished by “creating an overarching inspector general’s office to investigate potential ethic violations across the executive branch” or by giving an existing oversight agency, the Office of Government Ethics, some proper enforcement powers, including the ability to issue subpoenas and refer egregious violations to federal prosecutors in the District of Columbia for civil or criminal investigation. Before Trump was inaugurated, the man who was then the head of the Office of Government Ethics, Walter Shaub, called on him to divest his businesses. Trump simply ignored Shaub, who subsequently resigned.
