Biden’s new challenge: Holding Trump accountable

The moves to hold Donald Trump accountable for trying to subvert the presidential election are proceeding with stunning speed, though there is no consensus among his critics on which is the most effective.

Two events have changed the political dynamics with only a week left in the Trump presidency: The Trump-incited mob that stormed the Capitol, causing five deaths and forcing the House and Senate to go into hiding as they were counting Joe Biden’s electoral victory; and the recorded phone call of the president trying to strong-arm the Georgia Secretary of State to reverse that state’s election results.

The House today will vote to impeach Trump; he will become the first American president to be impeached twice. Unlike the last time — over a call to shake down the President of Ukraine to dig up dirt on candidate Biden — this will have the support of some Republicans, led by the party’s third ranking leader, Rep. Liz Cheney (R-Wyo.), a stalwart conservative who in a statement reminiscent of Sen. Margaret Chase Smith’s declaration of conscience against Joe McCarthy in the 1950s, denounced Trumps’ actions as impeachable.

A Senate trial might take place after the president leaves office.

The purpose is simple: if convicted, Trump would be barred from running for office again.

If it were a secret vote, it might get most Senate Republicans; since it’s not, it’s unlikely that 67 Senators, whether this month or months from now, would vote to convict. The Biden folks don’t want any trial to sidetrack their early agenda.

Thus, while the House will vote, as it should, that Trump committed an impeachable offense, he’s unlikely to be convicted, so it will be historically important but symbolic.

The judicial process may be anything but.

Until last week it was assumed — including privately within Biden circles — that the best course for any federal action was to wait for the Manhattan District Attorney’s investigation of Trump’s business and tax details, a two-year probe. Thus far, the president has failed to get the courts to stop that investigation, and one final attempt is expected to prove futile too. If so, a mass of subpoenaed records will be turned over. These would be state crimes for which Trump cannot pardon himself.

But with the carnage at the Capitol and the president’s attempts to change the Georgia election results, many Democrats — and privately more than a handful of Republicans — now believe tax and accounting fraud seem trivial next to charges of attempting to subvert a presidential election.

It seems almost inevitable now that the new Attorney General, Merrick Garland, will have to launch a criminal investigation into the president’s actions. That will be politically polarizing, but the enormous prestige of Garland, a former chief judge of the U.S. Court of Appeals and former top Justice Department official in charge of prosecuting the Oklahoma City bomber case, is a godsend for Biden.

Garland will probably tap a special counsel with a carefully prescribed mandate over subverting the election, culminating with the mob violence at the Capitol. Trump may try to pardon himself for any crimes committed during his term. This never has been tested, as there never has been a self-pardon, and with most constitutional experts suggesting it’s not permissible, it would not discourage a federal probe. 

There still is a need for a special commission to look beyond just the criminal charges into questions like the role played by other politicians, social media and white nationalist terrorist groups. A parallel has been drawn to the 9/11 commission, but the better model might be the 1967 Kerner Commission on race relations, a bipartisan panel appointed by a presidential executive order.

An ideal chairman would be Tom Ridge, a former Republican Governor of Pennsylvania and head of the Homeland Security Department under President George W. Bush. Ridge is respected across the political divide. A bi-partisan commission might include former elected officials like Congresswoman Donna Shalala and Governors such as Mitch Daniels and other security experts like Jeh Johnson, who ran the Homeland Security Agency under Barack Obama.

A comprehensive credible report won’t convince the cadre of hard-core zealots. But understanding exactly what happened is really important and should command widespread support. 

Congress inevitably will get involved, though with the bitter polarization, the most important contribution may be to explain the security breakdown at the Capitol last week and how it can be avoided again. (I spent a decade as a reporter covering Congress in our nation’s Citadel, my favorite monument among many in this town; however necessary, I dread creating even more barriers in a place that has been celebrated for its openness.)

Calls for expelling Sens. Ted Cruz (R-Texas) and Josh Hawley (R-Mo.) and Rep. Mo Brooks (R-Ala.) for encouraging the mob are misplaced; expulsion is only for clear-cut criminal acts. They should be censured.