How Biden Should Investigate Trump

This article was published online on December 9, 2020.

I. A Crimes Commission?

As he prepares to occupy the White House, President-elect Joe Biden faces a decision rare in American history: what to do about the man who has just left office, whose personal corruption, disdain for the Constitution, and destructive mismanagement of the federal government are without precedent.

Human beings crave reckoning, even the saintliest among us. Institutions based on rules and laws need systems of accountability. People inside and outside politics have argued forcefully that Biden should take, or at least condone, a maximalist approach to exposing and prosecuting the many transgressions by Donald Trump and his circle—that Biden can’t talk about where America is going without clearly addressing where it has been. In 2019, two professors at Princeton, Julian E. Zelizer and Kevin M. Kruse, argued that the most harmful response to Trump’s offenses would be for Democrats and Republicans to agree to look past them, in hopes of avoiding further partisan division. Eric Swalwell, a Democratic congressman from California, has proposed the creation of a Presidential Crimes Commission, made up of independent prosecutors. In the summer of 2020, Sam Berger of the Center for American Progress, an influential think tank with roots in the Clinton administration, released a detailed blueprint for conducting investigations and possibly prosecutions. It laid out the case this way:

Whenever the Trump administration ends, there may be good-faith concerns that addressing the administration’s misconduct will be too divisive, set a bad precedent, or lead to political pushback from the administration’s supporters. But the lesson from the past four years is clear: The absence of accountability is treated as license to escalate abuses of power.

Joe Biden, who improbably (or impressively) has lived through exactly one-third of America’s history as a republic, is well aware of this line of argument, and of the risks of papering over the sins of the past. He was in the Senate during the Watergate investigations and, later, when the Church Committee investigated Cold War–era crimes and excesses by the CIA. Modern history is replete with instances of societies that were hampered and distorted by their refusal to face difficult truths.Choose a country from almost any point on the globe—Norway, France, Indonesia, Ireland—and people familiar with it can detail the ways that facing or avoiding yesterday’s harsh truths can have effects that last through many tomorrows. The most extreme examples are widely known. They include the Chinese Communist Party’s ongoing suppression of truths about mass starvation in the country during the Great Leap Foward of the 1950s, the terror and chaos during the Cultural Revolution of the 1960s, and the forced repression at Tiananmen Square in 1989. Modern Japan’s relations with South Korea, China, the Philippines, Singapore, and other nations in the region still suffer because of Japan’s official muteness about what it did in these countries before and during the Second World War.

But how much time can Biden spend looking backwards? Many presidents have taken office with challenges, even crises, immediately at hand. The examples are familiar, including Franklin D. Roosevelt and Barack Obama. Biden’s challenges as he enters office are larger and appear on more fronts than any other president’s since Abraham Lincoln. He faces a global pandemic that is still getting worse, and an economy that the pandemic has brought to its knees. America’s relations with most of its allies are badly frayed. Conflicts with China are mounting. Many of the federal institutions Biden will supervise have been neglected for decades, and intentionally corrupted and weakened during the past four years. Trust in civic and political institutions has dwindled. For his own ends, the outgoing president has deliberately sought to sabotage the electoral process itself.

“Your most important decisions at the start are what to exclude,” Jack Watson told me recently. In 1976, Watson was in charge of Jimmy Carter’s transition-planning staff as Carter prepared to take over from Gerald Ford, and four years later, as White House chief of staff, he was Carter’s coordinator for the transition to Ronald Reagan. He went on: “You have to separate what must be done, soon, from all the other things you might want to do later in the administration.”

II. Time for Triage

Let’s survey the rubble of the moment’s landscape, imagining the way it will look to future historians. Joe Biden takes office in a strong position, and a weak one. The strength is his nationwide vote total, which as a share of the electorate is larger than Reagan’s in what was considered a landslide win over Carter in 1980. The Democratic Party, usually fractious, minimized its disagreements while Biden was running. He will serve with the first woman, the first Black woman, and the first person of South Asian heritage ever to become vice president. Incoming presidents typically get at least a temporary boost in their favorability ratings when they officially begin the job. Even before being sworn in, Biden had higher popularity ratings than Donald Trump ever enjoyed.Trump is the only president in the history of polling never to have had an approval rating above 50 percent.

Biden’s obvious great weakness is that, depending on the outcome of the two runoff races in Georgia, Mitch McConnell will likely still control the Senate majority. McConnell, who publicly said in 2010 that his main ambition was to make Obama a one-term president, is too disciplined to be caught saying the same thing about Biden. But it will of course be his strategy, pursued mainly by adding friction to whatever Biden wants to do. That will start with Biden’s need to find, assess, and vet candidates for some 4,000 political-appointment slots, more than 1,000 of which require Senate confirmation. This task, already slowed because of the pandemic, is all the harder because of stonewalling by the Trump team.Charles Stevenson, a political scientist who has decades of Senate staff experience (including for Joe Biden), explained: “They have to get people nominated and confirmed quickly, or they will miss months. If you don’t get your people there, the ‘actings’ could still be Trump types, or unqualified in other ways. Rather than cooperating on the transition—a basic civic duty and a long-standing norm—the outgoing administration for weeks impeded it, starting with its refusal to accept the simple fact that Biden had won.

Chronicling what went wrong under Trump has already generated tens of millions of words—and has barely begun. Works in this genre may eventually rival Civil War histories in their volume and their depictions of barely avoided national ruin. Daniel Dale, of the Toronto Star and then CNN, compiled a master list of false statements from Trump’s speeches, tweets, and other utterances, until he found, just before the 2020 election, when his list numbered almost 10,000, that he could no longer keep up. Last September, a nonprofit group called Citizens for Responsibility and Ethics in Washington released a compilation of 3,400 instances of corruption or conflicts of interest involving Trump and his family, any handful of which would have been considered scandalous and disqualifying in other administrations.There is no shortage of databases that pertain to wrongdoing by the Trump administration. See, for instance, the “Catalog of Trump’s Worst Cruelties, Collusions, Corruptions, and Crimes,” produced by McSweeney’s magazine. At the beginning of Trump’s time in office, the writer Amy Siskind began compiling “The Weekly List.” The disproportion between Trump offenses and past political scandals may seem like a tired point, but it has been “normalized” enough by its fire-hose nature that the sense of outrage inevitably fades.

Joe Biden has a set of decisions to make about the record of the Trump era. The record needs to be discovered—in part so that damage can be undone, and in part to ensure that the country faces its failures squarely and through a common lens. To which efforts should Biden personally, as the new president, devote his limited time and political influence? Which efforts should he place in the hands of others?

Through the final months of the campaign, I asked historians, lawyers, and veterans of Republican and Democratic administrations how they would answer those two questions. The conversations, many of them lengthy, touched on a wide range of issues—vastly wider than I can encompass here. But the responses boiled down to an argument for triage.

For Biden personally, as president, the best thing he can do for most of the needed inquiries is simply get out of the way. He has too many other things to contend with. Criminal proceedings require neither his instigation nor his help. There are two tasks, however, where his involvement is essential. One is stemming, and then beginning to reverse, the corrosion of the executive branch. The methodical destruction of the government’s competence and integrity has been nearly invisible but is one of Trump’s most consequential legacies. The second task is launching—but not running or controlling—independent investigations into three national catastrophes: the mismanagement of the coronavirus pandemic, whose toll continues to rise; border policies under which U.S. officials intentionally separated children from their parents, and in more than 600 cases have not been able to reunite them; and purposeful or negligent destruction of the norms of government, the most important being the electoral process, pushing a diverse democracy close to the breaking point.

III. Corruption vs. Corrosion

For purposes of answering the What must be done? and Who should do it? questions, two realms of Trump offenses should be considered. The first is the category “corrupt and possibly criminal.” This realm is potentially boundless, covers matters great and small, and extends not only throughout the four years of the Trump administration but to the transition period beforehand and even to Donald Trump’s activities prior to entering the White House. Trump will likely be consumed by criminal and civil litigation for the rest of his life. That is his problem; it should not be Joe Biden’s.

Before the end of Trump’s fourth year, seven prominent campaign or administration figures had been indicted, tried, convicted, jailed, or all of the above, more than in any other modern administration in its first term.The seven individuals are Steve Bannon, Michael Cohen, Michael Flynn, Rick Gates, Paul Manafort, George Papadopoulos, and the omnipresent Roger Stone. (Flynn pleaded guilty and then tried to withdraw his guilty plea, after which William Barr’s Justice Department moved to dismiss the pending criminal case. Bannon pleaded not guilty and is awaiting trial.) They included Trump’s former personal lawyer, his former national security adviser, his former campaign chairman, and his former chief strategist. More indictments and convictions could well lie ahead. To take just one example: Tampering with the U.S. mail is a federal offense, and Trump’s postmaster general Louis DeJoy might face charges for doing so on a grand scale, because of allegations that he intentionally sought to delay election-related mail (which he has denied).

From the March 2018 issue: Franklin Foer on Paul Manafort, American hustler

All presidents and major-party nominees since Richard Nixon have released their tax returns. Trump promised to do so when his were no longer “under audit,” but that time has never come. The authoritative New York Times accounting of his personal taxes found that he had paid little or nothing in most of the years for which the paper obtained documentation; on two occasions, his annual federal-income-tax payment was $750. (For the record, a lawyer for the Trump Organization disputed the reporting.) Trump declared that he would separate himself from his business holdings when he took office. He did not. Instead he announced after being elected that he, as president, by definition could not have a conflict of interest. It was a counterpart to Nixon’s saying, “When the president does it, that means it’s not illegal.”The conflict-of-interest exemption seemingly extended to Trump’s family. While Trump was conducting his “trade war” with China, the Chinese government awarded some two dozen trademarks to businesses bearing the Ivanka Trump brand. Soon after Trump took office, Jared Kushner’s sister Nicole spoke at an event in Beijing to attract investors to a Kushner-family real-estate project in New Jersey. An ad for the event said, “Invest $500,000 and immigrate to the United States.” In her pitch, according to multiple press reports, Nicole highlighted her ties to the White House. Nixon’s claim did not stand up, and Trump’s probably won’t either. What secrets lie in Trump’s financial records? Why did he claim that certain properties were far more valuable when using them as collateral for loans than when valuing them for tax purposes? Was he paying himself and his family members from what were supposed to be campaign funds or official government accounts? Were his Scottish golf resorts essentially elaborate money-laundering ventures?According to data from Citizens for Responsibility and Ethics in Washington, Trump made at least 500 visits to his own hotels, golf courses, restaurants, and other facilities during his four years in office. Special-interest groups held 130 events at Trump properties.

Questions like these just scratch the surface of what must be asked, and answered, about possible corruption during the Trump era, not to mention before. They should occupy little or nothing of Joe Biden’s attention. The machinery of justice will operate on its own. The matter of a pardon, suggested by some—and a last-minute possibility by Trump himself or conceivably by an elevated Mike Pence—is exciting as a cable-news topic, but is one Biden should ignore. The circumstances today are unlike those during the time of Watergate (when the new president, Gerald Ford, pardoned the president who had just resigned in disgrace, Richard Nixon), and anyway the potential financial crimes are mainly matters of state law, beyond the reach of a presidential pardon. Prosecutors in New York have sought access to years of Trump’s financial and tax records as part of their investigation of “possibly extensive and protracted criminal conduct at the Trump Organization,” in the words of a 2020 filing by Manhattan District Attorney Cyrus R. Vance Jr. So far, none of the prosecutions has begun—partly because of the legal gray zone involving actions against a sitting president, and also because of Trump’s wave after wave of unsuccessful appeals. But sooner or later, the full records will fall into the hands of the authorities.

From the August 1983 issue: Seymour M. Hersh on the pardon

Possible violations of federal rather than state law are trickier, because a new administration would by definition be involved. These might include the alleged mismanagement of the Postal Service, to cite one hypothetical, or the politicization of the Justice Department by Attorney General William Barr. But Biden should view such cases as opportunities to emphasize dispassionate accountability and rule of law. Trump undermined legal standards through a willing-accomplice attorney general and through the systematic removal of inspectors general, whose common fault was that they initiated investigations of Trump himself or of Trump appointees inside their departments. Biden’s response should be to repair the structure of checks and balances, and then let it do its work. His most important appointment may be a new attorney general, chosen to embody the very principles that Barr, who served in essence as Trump’s personal lawyer and adjunct campaign manager, traduced.

Biden needs to select an attorney general who will be seen as the most principled and eminent of all his Cabinet members, and choose correspondingly strong and independent inspectors general for the executive departments. The rest is up to them.

The second category of offense is corrosion of government rather than corruption of government. Here Biden’s responsibility is different—and his response should be very direct.

Everyone knows about the Michael Lewis books that have been turned into movies: The Blind Side, about football; Moneyball, about baseball; and The Big Short, about the 2008 financial crash. But in this moment the book for which he should be known is The Fifth Risk, published in 2018, about the arcane details of managing the federal government, and why Trump’s indifference to them mattered. Questions of operational competence make headlines when an airliner crashes or the electric grid fails. The deficiencies don’t make headlines when they occur deep inside the federal bureaucracy. But they represent a quiet, daily, systemwide calamity—one that a new president can begin to control.

The shift from competence to cronyism is widespread across the government. Trump’s son-in-law, Jared Kushner, and the radiologist Scott Atlas—neither with training in epidemiology—had the president’s ear on pandemic control, as opposed to experts like National Institute of Allergy and Infectious Diseases Director Anthony Fauci and National Institutes of Health Director Francis Collins. Career intelligence officers were kicked out, and loyalists such as Richard Grenell and John Ratcliffe put in their place. Ten days into his administration, Trump fired Sally Yates, the acting attorney general, and then in short order fired the U.S. attorney in Manhattan, Preet Bharara, and the FBI director, James Comey—all three of whom were reportedly investigating the president or his appointees. Trump fired or drove out officials with professional standing that predated their political support—H. R. McMaster, James Mattis, Dan Coats—and installed more pliant replacements. He undermined the independence of the military in a variety of ways.To mention one public episode: General Mark Milley, while dressed in combat fatigues, was enticed to accompany Trump on the walk to his infamous photo op holding a Bible in front of St. John’s Church, near Lafayette Square in Washington, D.C. To make the walk possible, peaceful protesters were dispersed with tear gas. A week later, Milley took the extraordinary step of formally apologizing to his colleagues in uniform for allowing himself to have become part of a political spectacle. He signed an executive order that effectively made many professional civil servants subject to political dismissal.

Every executive agency and department needs top-to-bottom attention. A cadre of skilled career professionals has been lost to attrition, unable to countenance the Trump administration’s calculated disemboweling. Biden needs to rebuild the ranks of every part of the executive branch, but a symbolically important first step would involve America’s formal connection with the rest of the world: the State Department, whose capacities and expertise were made a special target during the Trump years. There and elsewhere, Biden can promote career professionals. He can experiment with new ways of bringing in experts with specific skills—in public health, cybersecurity, climate issues, higher education, and many other areas—for temporary mid-career assignments. He can encourage a new generation of Americans to choose public service, so that 20 years from now, the government has a corps of experienced experts. Action and example matter.

IV. The Catastrophes

Halting the corrosion is the very least that needs to be done—equivalent to stabilizing the patient. Just as important, investigations should be conducted into three catastrophes during the Trump years that have undermined our health as individuals, our morality as a people, and our character as a democracy.

The coronavirus pandemic may represent the greatest failure of governance in U.S. history, and responsibility for the extent of its ravages falls squarely on Donald Trump.As I argued in “The Three Weeks That Changed Everything,” published in The Atlantic in June, the United States had the information, the plans, and the resources in place to limit the damage from an outbreak like the current pandemic. The Trump administration failed to put any of these tools to use. The pandemic has killed hundreds of thousands of Americans, triggered a business collapse, and worsened every racial and economic injustice in our society. Here was a case where warnings came at an early stage, and where detailed plans to meet the threat were at hand. Trump was made aware of the imminent danger and chose first to ignore it and then to downplay it. Ultimately he resorted to outright mockery of containment and treatment efforts.In the eight months leading up to the election, 300,000 more Americans died than would have been expected during the equivalent period in a “normal” year—a figure known as the “excess death” toll of the pandemic. In the 1960s, Lyndon B. Johnson decided not to run for reelection when the weekly toll of American deaths in Vietnam passed 300. That figure had become an ordinary morning’s count of COVID-19 fatalities by the end of 2020.

“The pandemic is one of the major mass traumas collectively suffered by humanity during the last hundred years,” Philip Zelikow, a historian at the University of Virginia, wrote recently. “Such mass traumas are rare. Narratives about such traumas always become enduring touchstones in politics and culture, for better or worse.” The narrative Zelikow refers to is a shared public sense of why something has happened, and how a similar trauma might be avoided in the future. Establishing the correct narrative is especially urgent when it comes to a pandemic that is still raging and that surely prefigures grave public-health threats ahead.

What can a new president do to this end? The answer, which is more powerful than it may sound, is to establish a commission. True, that’s not a word for bumper stickers or rally speeches. But commissions have played a role in shifting public awareness of major issues.The best-known U.S. commissions have been set up to deal with stand-alone past disasters: in the 1960s, the Warren Commission, investigating the killing of John F. Kennedy; in the 1980s, the commission investigating the explosion of the space shuttle Challenger; in the early 2000s, the 9/11 Commission, investigating who knew what before the attacks. Other commissions have been broadly diagnostic. In the 1960s, the Kerner Commission presciently argued to its mainly white readership that the country was evolving into “two societies, one black, one white—separate and unequal,” and that racism and poverty were the main causes of urban rioting. In the 1980s, the National Commission on Excellence in Education released what is known as the “Nation at Risk” report, making the case for schooling reform. And compared with other, ever more siloed forms of public narrative, from cable TV to food-fight congressional hearings to anything online, they start out with less of a handicap. They are as useful a tool as we now possess for confronting complex issues without immediately being shunted into talking-point posturing. “This would be like the 9/11 Commission,” a person who has worked for presidents of both parties on emergency management told me, “about a disaster unfolding slowly before our eyes. It is a massive failure of leadership, and we’ve got to make sure that this doesn’t happen again.”

That’s the first investigation. The second, also conducted by a special commission, would look immediately into the cases of children separated from their parents at the border. Examples of the Trump administration acting out of smug vengefulness and casual disregard for human suffering are sadly plentiful. For years, Trump denied aid to Puerto Rico after a devastating hurricane. He only reluctantly issued disaster declarations for California (a state he viewed as politically hostile territory) during a season of unprecedented wildfires. The brutal policy of family separation stands in for every other episode of cruelty, and transcends them all. “We’ve been declared in some respects a state sponsor of child abuse by friends overseas,” John R. Allen, a retired four-star Marine Corps general who now is president of the Brookings Institution, told me. “Having friends and allies declare this as state-sponsored child abuse is a stain on our national soul that will take a long time to remedy.” The immediate charge to the commission would be to do everything possible to find the hundreds of displaced children and unite them with their families—which even before the election Biden promised to do.The grim reality is that history provides models for how organizations can undertake such efforts—mainly the years-long process of tracing and reconnecting children separated from their parents during and after World War II. Dealing with hundreds of children within one country is different from coping with hundreds of thousands in the aftermath of a war; but the moral imperative is at least as strong. The further task would be to document, step-by-step, the process by which the president and his officials were able to put this policy of sanctioned kidnapping into place. Separating children from their parents doesn’t simply occur by executive fiat. There are bureaucratic and legal hurdles that action of this kind must surmount—and Trump’s desire surmounted all of them with ease. That demanded complicity by scores of individuals at every level, from White House aides to Justice Department lawyers to the functionaries at the border.

From its immersion in tragedy, the commission could perhaps launch a larger discussion on immigration and immigration policy. But the main focus must be on the process of forcible separation.

The third investigation (and third commission) would probe the Trump administration’s attacks on democracy itself. American democracy depends on rules, and it depends on norms. The rules largely involve setting the balance between majority power and minority rights. The norms involve the informal cushioning that keeps disagreements from becoming civil wars. There is no law spelling out the duty of the loser of an election to concede graciously to the winner. But that is what Richard Nixon did after his hair’s-breadth loss to John F. Kennedy in 1960, and what Al Gore did after his even narrower (and more controversial) loss to George W. Bush in 2000. Democracy depends on the “consent of the losers,” as political scientists have put it.

Over the past generation, rules and norms have eroded. There is a reason books on guarding against autocracy—for instance, On Tyranny, by Timothy Snyder, and Twilight of Democracy, by Anne Applebaum—have become popular. The erosion was transformed into deliberate policy during the Trump years. Even before he was installed in office, and with no evidence, Trump called into question the popular vote in the 2016 election, alleging that millions of ballots had been cast fraudulently. Trump created a task force to look into the matter, which generated headlines (but quietly disbanded when it found no fraud). Elections are in the hands of the individual states. Now emboldened, many state legislatures have used fraud as an excuse to erect new barriers to voting by the poor, by members of minority groups, and by immigrants—reversing the gains of half a century. When the pandemic hit, prompting a shift away from voting in person, the Trump administration falsely equated mail-in ballots with fraudulent votes. When Biden won a decisive victory in both the popular vote and the Electoral College, the president refused to concede and launched a war of attrition against the legitimacy of the electoral process itself.

An investigation of America’s democratic process must start by decisively separating truth from lies. It must document the assault on voting rights and the cynical distortions of gerrymandering. It must reckon with the most lethal form of domestic terrorism in recent years, that from armed white supremacists. It must also explain what needs to be done to secure elections against interference by Russia and other foreign powers—a threat confirmed by all of the nation’s intelligence agencies, but one whose reality and significance were questioned by Trump. Finally, it must address how to rekindle a spirit of grassroots engagement among ordinary citizens. An excellent place to start is a recent report from the American Academy of Arts & Sciences called “Our Common Purpose.”

V. The American Story

There is one further thing Biden can do: frame all of the above in terms of the larger American narrative. The specific steps he should take are not about payback, whatever some will say. They are not even about Donald Trump as an individual. They are about the never-ending mission of forming a more perfect union. As Philip Zelikow has observed, every part of the national experience, tragic or triumphant, lives on most powerfully in story. And stories have consequences.For a century after the Civil War, much of the white American South told itself a particular story about the “Lost Cause” and the noble origins of the “War Between the States.” Statues of Confederate leaders erected in the early 20th century, along with films such as The Birth of a Nation and Gone With the Wind, were ways of telling one version of the country’s most divisive story. It was a false version that was embraced by much of the nation. Presidents are often most powerful as storytellers, giving citizens a way to think about themselves, their neighbors, their country, and their times. Barack Obama, who came to national attention before holding any national office, did so with his “red states and blue states” speech at the Democratic National Convention in 2004. Donald Trump told a very different story—of us versus them; of a hostile and cheating world beyond our borders; and of treacherous, devious interests here among us at home—in his “American carnage” inaugural address.

Biden likes to say, of the American-carnage era, “We’re better than that.” In practice, we haven’t been. In theory, we could be. Biden has a chance to tell a different story—a story about our potential—with the first words he utters after taking the oath of office.

This article appears in the January/February 2021 print edition with the headline “How Far Should Biden Go?”