There is plenty to worry about between now and Inauguration Day 2021. It is no sure thing that Donald Trump will be defeated by Joe Biden. Even if Biden wins, Trump may not accept the outcome of the election. If Trump accepts defeat, he still might demand some sort of immunity deal for Jarvanka and himself in exchange for his cooperating with the transition. If Joe Biden does make it to Inauguration Day, I’d be surprised if Mr. and Mrs. Trump were in the reviewing stand to honor more than two centuries of the orderly transition of power. Let’s face it, between now and January 20, 2021, it’s likely to be a bumpy ride.
If I close my eyes and dream of a big Biden win and an easy transition to a new presidency, the pleasant feeling that sweeps over me doesn’t last very long. My mind begins to spin off the myriad changes that we must make to our national laws to prevent another ignorant narcissistic grifter, his family and cronies from ever debasing the Oval Office again.
Perhaps this is a game we all can play at home. Set up a Zoom call with your friends. Make sure everyone has paper, something to write with and a suitable beverage. Put ten minutes on the clock. When the clock starts, everyone writes down as many government reforms to prevent another Trumpian Presidency as they can. The winner is the one with the most comprehensive Trump prophylaxis. Here is what I have been able to come up with:
On the Campaign Trail
▪ The IRS Automatically Publishes Five Years of Tax Returns from Anyone Declaring Their Candidacy for President. This probably would have been enough to scare Trump out of running in the first place and will be a lasting deterrent to anyone with a sketchy financial history running for America’s top job.
▪ Security Clearance Review for Presidential Candidates. A security clearance determines one’s eligibility for access to classified national security information. The president, vice president, members of Congress and the Supreme Court are exempt from the security clearance process because the requirements to hold those jobs are set forth in the Constitution and security clearance isn’t mentioned.1 Of course it isn’t mentioned. There was no such thing as a security clearance in 1788. This gaping problem needs to be fixed. Candidates who can’t earn a top secret security clearance have no business being on the ballot because someday they could be controlling the nuclear codes and be privy to our deepest national security secrets.
▪ Asset Divestiture. All presidential candidates must be required to publish a detailed plan for asset divestiture as a condition for getting on a primary ballot. Delegating control of private businesses to family members should not be allowed. The president-elect must implement their divestiture plan (e.g. sell all businesses, stocks and bonds) prior to Inauguration Day. While in office, the president may not invest in any business or financial security.
▪ No More Election Help from Foreign Governments. According to the Federal Election Campaign Act, it already is illegal for a foreign government to give money or other things of value to U.S. politicians.2 Clearly that didn’t stop Putin from running his troll farms in the 2016 election, it didn’t stop Trump from pressuring newly elected Ukraine President Zelenskyy to defame Joe Biden3 and it didn’t stop Trump from asking China for help in the 2020 election.4 If our elections are going to be free and fair, we need to tighten up existing laws to keep our foreign adversaries from tipping the scales in favor of candidates they like. These reforms must include social media. Mark Zuckerberg and Jack Dorsey, are you listening?
Once In Office
▪ The Sitting President Can No Longer Use the Oval Office as a Shield from Prosecution: Part A. An October 2000 Department of Justice Office of Legal Counsel memo states that indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.5 Just this year, however, the Supreme Court ruled: “… we cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause. Our dissenting colleagues agree6.” Every justice in the Supreme Court agrees that the president is subject, to some degree, to the law. Time to put the October 2000 OLC memo to the test in front of the Supreme Court.
▪ The Sitting President Can No Longer Use the Oval Office as a Shield from Prosecution: Part B. Freeze the statute of limitations clock on election day and start it back up again when the president leaves office. Paying off high-priced hookers during an election year to stop them from going public about a candidate’s marital indiscretions shouldn’t be protected by being elected.
▪ No More Oval Office Nepotism. The president should no longer be able to appoint family members to positions in the federal government. Jared and Ivanka were completely unqualified for any position in the White House and spent their time using the office for their own aggrandizement and pecuniary gain.
▪ Put Teeth in the Emoluments Clause. Article I, Section 9, Paragraph 8 of the U.S. Constitution prohibits federal officeholders from receiving any gift, payment, or other thing of value from a foreign state or its rulers, officers, or representatives. The Trumps, as a family, have utterly ignored this constitutional provision as Jared, Ivanka and Donald all solicited personal financial benefits from foreign governments whether it is Ivanka seeking trademarks from China7 Jared seeking a Qatar bailout for his failing 666 5th Avenue real estate deal8 or Donald sending his ambassador to beg theBrits to move the British Open to Trump’s golf course at Turnberry.9
▪ No More Presidential Control of Security Clearance Process. The president’s role in the security clearance process should be permanently relegated to the Director of National Intelligence. This would prevent the president from overriding the recommendations of staff so that shady associates could read the President’s Daily Brief. According to one whistleblower, Trump overrode dozens of separate rejections despite concerns about blackmail, foreign influence or other red flags.10
▪ Immigration Reform. Family separation of undocumented immigrants, kids in cages, sending ICE agents to accost Latinx people at hospitals, DMVs and courthouses, incarceration of refugees and arbitrarily blocking people at the border all need to be comprehensively reviewed with new standards set for prompt and equal justice for all immigrants and a pathway to citizenship for all of worthy character. The federal government must immediately quadruple the number of immigration judges available to hear cases. Justice delayed is justice denied.11
▪ Senate Confirmation Process Reform. The Federal Vacancies Reform Act does specify limits for how long-acting department heads may serve without Senate confirmation. Trump has bypassed this requirement by delegating the responsibilities of the higher office to a subordinate.12 By ducking Senate confirmation, Trump can hire and fire his top officials with impunity. Many of these Trump appointments are breathtakingly unqualified for their office. The Vacancies Reform Act needs to be Trump-proofed so that future presidents only nominate candidates capable of Senate confirmation. If the president leaves key posts vacant for too long, the relevant U.S. Senate committee should be authorized to make the appointment.
▪ Private Phone Calls and Meetings with Foreign Heads of State should be banned and recordings and transcripts of all meetings and calls must be made and delivered to the Director National Intelligence. All meetings between the president and foreign leaders must be witnessed by at least two high-ranking federal officials. Consider the Trump-Putin summit in Finland in July, 2018. Two hours between the two and no witness to or record of their meeting.13
▪ Reaffirm Posse Comitatus Act of 1878. Federal law enforcement, national guard troops and regular military may not get involved with any domestic protest, legal or illegal, unless formally invited, in writing, by the relevant municipal or state official. In the event that federal personnel are authorized to participate, all must wear an insignia making clear which branch of government they answer to and a nameplate that clearly identifies their identity. Little green men can no longer be used to interfere with Americans exercising their First Amendment rights.
▪ Institute Fast-Track Review of all Contested Congressional Subpoenas. Congress and the White House need to have a standing agreement to promptly submit to binding arbitration over any disputes regarding release of materials or testimony sought by Congress. Trump’s blanket embargo on cooperation with House of Representatives requests for in-person testimony and subpoenas for documents has crippled congressional oversight of the Executive Branch.
▪ Mandatory Due Process for Deregulation. During his presidency, Trump has launched an all-out assault on environmental and social justice regulations.14 15 All new federal regulations are subject to extensive due process prior to their implementation. Similar due process and rationale should be afforded to them prior to scrapping them.
▪ Product Promotion. The president and his family shall be banned from using their fame and the White House press corps to promote specific products whether they are directly compensated or not. No more Goya Bean displays on the resolute desk please.16
That’s my list for now. I’m sure Adam Schiff could run circles around my version.
14 https://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks.html 15 https://atlantadailyworld.com/2020/07/24/trump-and-carsons-attack-on-fair-housing-racially-motivated/
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