Will Biden Repeat Obama’s Mistake?
I’ve been very impressed with how Joe Biden is conducting himself so far. (See “Are We Going to Start Repairing Things?”)
(And I expect no one wished more fervently than I either for his victory in the election or his success in being the transformational President he wants to be.)
But so far he’s done little to address my main concern about how he’ll deal with the challenges he faces: Has he learned from Obama’s mistakes?
(It is concerning also that so few in the Democratic world seem to be cognizant of Obama’s having made those mistakes.)
The main mistake I have in mind is how Obama dealt with his Republican enemies—I mean the likes of Mitch McConnell and his band of across-the-board obstructionists. I call them “enemies” because they treated Obama as their “enemy,” and Obama’s mistake was that he never treated them accordingly.
I hope Biden is better prepared to make them pay a political price for what is really indefensible conduct. Which is to say I hope that he knows better than is indicated by Biden’s remarks about how he’ll “reach across the aisle”—which, though it is an excellent place to start (PR-wise), would be disastrous also to end up there the way Obama did. ((See “The R’s Disgraceful Conduct Must Be Punished—and the Time for That is Soon upon Us.”)
But the other concern I have about “learning from Obama’s mistakes” concerns how to deal with the crime wave that has been the Trump Presidency.
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The Genuine Dilemma Biden Faces
It is undeniable that with the issue of how to deal with the crimes of Trump and his administration, Biden faces a genuine dilemma.
On the one hand:
- Trump’s crimes are many, and his administration has been the most corrupt in history.
- Biden will have taken an oath to defend the Constitution, which Trump has assaulted in so many ways, and to see to the faithful execution of the laws, many of which have been violated right and left.
- A failure to prosecute Trumpian crimes would be a terrible blow to “the rule of law” that is so central to the American system of government.
On the other hand:
- It is rightly one of Biden’s central goals to unify the American people.
- The nation is terribly divided between those who have opposed Trump and those for whom Trump has been a hero, the centerpiece of a veritable “cult of personality.”
- Trump’s following contains some extremely dangerous components, from whom the threat of violence – perhaps even insurrection – is very real.
- Trump’s own abuse of prosecutorial powers – from “Lock her up” to all that he and AG Barr have done to use the law to protect friends and punish opponents – has corroded the image of “impartial justice” in the American mind.
The signals from the Biden camp are mixed, but seem to point mostly toward Biden doing what Obama did.
Obama, fearing a virulent reaction from the Republican component of the American body politic, (in)famously said that he would “look forward, not backward,” and he did nothing about holding the George W. Bush administration accountable for some serious crimes.
Likewise, we hear lately from the Bush circle that the President-Elect wants to “move on,” and that he puts “unity” ahead of “prosecution.”
Obama’s choice looked then, and even more so looks now, like a mistake: he violated his oath of office in the quest for peace, but his path ended up with neither peace from the Republican world nor integrity in the fulfillment of his sacred responsibilities. It might well be argued that one consequence of Obama’s choice to forego “accountability” was that it opened wider the door for more disgraceful conduct from the Republicans (during both the Obama and Trump presidency) ever since.
Yet it must also be noted that Biden has sent another signal: he is saying that the decision over what to prosecute and what not to prosecute will be left to the independent Department of Justice, with the President keeping his hands off. The idea is that it will be an Attorney General, and not the President, who will make such decisions – strictly governed by the evidence and the law.
(Lawrence O’Donnell – one of many people weighing in these days on this issue of Trumpian crimes – lauds this as clearly the right course to take.)
However, this does not really resolve Biden’s dilemma, because that distinction between the President and the Attorney General will not register very deeply with the American people, particularly not with the Trump voters.
We can talk about an “independent” Attorney General, and it is indeed an important notion (now in ruins after Trump’s making the office into an instrument for serving his own power). But the AG is appointed by the President, and historically has been politically connected with the President. (And particularly in the wake of William Barr’s complete subordination of considerations of “justice” to the service of his President’s corrupt purposes, the public’s presumption of an AG’s independence is apt to be at a very low ebb.)
If the AG that Biden appoints proceeds to prosecute Trump and/or his corrupt minions, that choice will be seen as an extension of Biden’s will.
So that course – which is entirely defensible in legal terms – does not resolve the dilemma of Biden wanting to unify the nation while also being obliged to uphold the rule of law.
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Is there a better solution?
A better solution would be one that 1) will result in the prosecutions that are appropriate but 2) will hand off responsibility in some way that is not perceived by the public as Biden using the law to attack his Trumpian opponents.
In early 2009, I wrote a piece proposing that the new President (Obama) form a blue ribbon, bi-partisan commission to which he publicly posed the question: What should I do – in view of the oath of office I just took, and in view of the interests of the nation – in dealing with the past administration’s actions that might constitute violations of the law? And then for that commission to deliver its considered judgment and the President to follow its counsel.
Would that approach work for the twin goals of protecting the rule of law while also convincing the wide American public that justice and not partisan warfare was governing the course?
Another possible solution would be to establish some kind of Special Prosecutor, or Special Prosecution Panel— with someone (or someones) of unquestioned integrity, and without any Democratic partisan allegiances, heading it up.
Of course, Robert Mueller – of sterling reputation and Republican background – would have seemed ideal for such a role. And we saw how the Trump world could demonize even him.
The Mueller example makes it questionable that anything can gain public trust in a time when Republican leadership is unrestrained in its use of lies, and the Trump base is unlimited in its willingness to buy lies.
The goal, however, need not be to satisfy everyone, but rather to satisfy the large majority of Americans. Where disunity is inevitable, even if minimized, better to confront it in the name of justice, accountability, and the preservation of the rule of law, than to avoid the conflict in the futile search for a peace that cannot be attained by appeasement.