After Trump, Reforms Urgently Needed to Protect Democracy from Future Autocrats

Interview with Caroline Fredrickson, senior fellow at the Brennan Center for Justice, conducted by Scott Harris

Since the Nov. 3 election victory of former Vice President Joe Biden and Sen. Kamala Harris, President Trump has refused to concede his loss and instead embarked on a dishonest effort to overturn the election results. Trump and his lawyers launched dozens of frivolous and failed lawsuits with the goal of invalidating millions of ballots, cast mostly by black residents in cities including Philadelphia, Pittsburgh, Detroit, Milwaukee, and Atlanta.

In response to Trump’s racially targeted voter suppression effort, a group of Michigan voters filed a lawsuit against Trump and his campaign, arguing that “defendants are openly seeking to disenfranchise Black voters,” in violation of the 1965 Voting Rights Act, partially dismantled by the Supreme Court in 2013.

After 16 days of blocking President-elect Biden and his team from gaining access to mandated funding and office space for the presidential transition, Trump-appointed General Services Administration chief Emily Murphy finally announced on Nov. 23 that the transition can move forward. Between The Lines’ Scott Harris spoke with Caroline Fredrickson, former president of the American Constitution Society and now a senior fellow at the Brennan Center for Justice. Here she examines the damage that the Trump regime has done to our nation’s democratic institutions, the need for reforms to prevent future presidential abuse of power and the debate on whether or not Trump should be prosecuted for his law breaking during his four years in office.

CAROLINE FREDRICKSON: There’s been a whole coalition of organizations that have been devoted towards thinking about how we defend our democracy and what are the key pieces that need to be re-established, after we’ve all weathered the storm of the Trump administration and the vast destructive power that it has waged on our government. It’s like Hurricane Donald against ethics and morality. How do we clean up after that? What’s our FEMA for Hurricane Donald? There’s been a lot of thinking in a whole variety of different areas from how do we protect the right to vote against these terrible assaults, trying to disenfranchise particularly black voters, but also other minorities and urban voters? How do we ensure that ethics rules such as the Hatch Act are respected? How do we make that enforceable?

You have to start applying it to the president. The president has been exempted from a lot of these laws again, because the assumption was that the president would abide by them without needing that kind of enforcement. And there’s also been some legal issues around separation of powers and can Congress really enforce that kind of law against the president. We need to really grapple with that. Can the president be prosecuted? That’s an opinion of the Justice Department. It doesn’t have the force of statute behind it. We need to re-examine that. And I hope Biden’s Justice Department will revoke that opinion that was issued 30 years ago. And we need to update that and recognize that the president cannot, and should not be above the law.

So there are a whole variety of areas, but as I said, the good thing is ever since Trump has been elected, there’s been a lot of thinking about what needs to be done to basically hardwire some of these norms into a legal framework or at least a framework that’s more enforceable than the one that pre-existed Trump. And so hopefully, we can come out of this with the kind of strengthened situation that will not allow, you know, a smart Trump, a competent Trump to come in and blow our system to pieces.

SCOTT HARRIS: Well, we only have a couple of minutes left, Caroline, I did want to ask you this final question. Question revolves around should Donald Trump be held accountable for his violation of ethics, the Constitution, tax law, basic morality, a whole list of things. President-elect Biden, like his partner Barack Obama, is signaling that he doesn’t believe the prosecution of Donald Trump would be good for the nation healing or unity. When we talk about President Obama, when he came in office, he said he wanted to look forward and not back, meaning that there wasn’t going to be any federal prosecution of George W. Bush and his administration for torture and other violations of the law that he undertook in prosecuting a war of aggression against Iraq. In this case, where do you think we should go as a nation? There are federal courts, there are state courts. Donald Trump has opened a prosecution in both, I would say.

CAROLINE FREDRICKSON: I’ve thought a lot about this. I do happen to think that Donald Trump is really very different. I mean, I was not a supporter of George Bush. I was more than troubled, completely disturbed by the things that happened in his administration. It wasn’t just the torture. It wasn’t just the surveillance, illegal warrantless wiretapping. It was also the abuse of the Justice Department to use the voting rights section to investigate elections where Democrats won and not Republicans. It was the politicization of that whole process.

But yet, this is where we’re really in a unique situation. I don’t think Biden is going to do this personally though. I really worry that without some level of accountability, we’ve opened the door to criminals in the future using the presidency for their own benefits. And so I hope that Cy Vance and the attorney general of New York and the others who are moving forward, keep their cases going.

Even if they don’t end up prosecuting them to the extent of putting Donald Trump in jail, I think he needs to and others need to feel like there’s a penalty to be paid. And, you know, Trump may try and pardon himself, which is not at all something that most constitutional scholars think he has the ability to do, but he’ll try and do it anyway. And it’ll be contested. And he may, you know, do the more prudent thing and resign, have Pence then become president and then pardon him just like Nixon did with Gerald Ford. But that doesn’t get him off the hook for state and local crimes. And so, I think there needs to be a continued prosecution. Maybe there’ll be a deal and he won’t end up having to do time. But I think the prospect of actually facing legal liability is pretty important for the next person who attempts to be a dictator in our country.

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