This started out as a comment, but I decided to publish it to start a discussion that will be necessary if we win the next election.
Trump has been a disaster in so many ways, but one of the most insidious is his violation of norms and guardrails that have long prevailed in our political culture. These norms were so fundamental, so embedded in our system, that no one thought it necessary to enshrine them into law. But Trump has exposed a major weakness in our system. Our founders assumed that a certain level of good faith would normally prevail in our government and politics. And to the extent an unscrupulous leader tried to violate that good faith, to game the system, they set up the separation of powers, with three separate coequal branches of government, on the theory that each branch would be jealous of its rights and prerogatives, thus establishing a check on power grabs by the others.
Trump has shown, though, that if our leaders put politics over government and party over country, those checks and balances break down and become ineffectual. As the constitutional experts recently testified at the Judiciary Committee’s impeachment hearing, our founding fathers foresaw the possibility of a lawless President. They adopted the impeachment power to address that issue. What they didn’t foresee — and what has never happened until now — was that Congress would supinely surrender all of its rights and responsibilities to the executive. That’s why we are now in uncharted, and very scary, territory.
There’s nothing that can be done right now, barring a miracle where 20 Republican Senators suddenly have an epiphany and decide to put country over party. But if we win the elections next year and get a Democratic President and both houses of Congress— by no means a sure thing — we need to think about what we need to do to forestall the rise of another autocratic demagogue like Trump. The legislative proposals below are designed to rein in another Trump (or worse) and address some of the weaknesses that have permitted Trump and McConnell to violate basic norms that heretofore did not need legislation. Here are some ideas, though I’m sure you guys can come up with more:
1. Make Congress’s subpoena and contempt power self-enforcing; that is, Congress doesn’t have to test the limits of common law “inherent contempt,” nor rely on the Justice Department to support its subpoenas. Instead, by law Congress has an office (maybe under the sergeant of arms) that employs lawyers who can go to court to enforce subpoenas and take other legal actions as well (such as suing Trump to stop him from stealing funds to build a border wall). A court ould be required to rule on the action ithin 7 days, and expedited appeals would also be built into the system. As part of the same legislation make it clear that there is no such thing as “complete immunity” for the executive branch.
2. Make the Justice Department, by law, quasi-independent. This would codify the norms that prevailed since Watergate, until Trump and Barr took a wrecking ball to them.
3. Enact a statute that requires anyone running for President or Vice President to disclose their most recent ten years of federal and state tax returns.
4. Make the conflict of interest rules apply to the President (who is currently exempt). Require that Presidential business holdings be placed in a blind trust, with the trustee subject to approval by an independent ethics officer. Forbid the federal government from contracting with any business the President or his family own or control.
5. Create a specific cause of action for violations of the emoluments clauses, provide a statutory injunction and disgorgement remedy, and by law grant states and private citizens standing to sue. (Frivolous cases would still be subject to quick review and dismissal.) Clarify that emoluments include even commercial transactions at arm’s length.
6. Enact strict anti-nepotism laws: No member of the President’s immediate family (children, spouses, parents, siblings, and their spouses and children) can serve in any management or higher position in the White House or any federal department. There could be exceptions for lower level positions that were held before the President was elected.
7. Amend the law which prevents the President from impounding funds, or spending them on projects not authorized by Congress, so as to resolve any uncertainties or ambiguities that currently exist; and give Congress and state governments specific standing to sue to enforce the law.
8. Require that Congress (maybe just the Senate) must approve any withdrawal from a treaty once the treaty is in force.
9. Expand the federal judiciary (as was done in Carter’s day) to dilute the impact of the numerous unqualified judges rammed through by Trump and McConnell.
10. Require Congress to take an up or down vote on judges, cabinet secretaries, and other significant governmental positions within a time certain. By the same token, clarify the Vacancies Act and other laws to ensure that a President can’t insert unqualified cronies into executive branch positions, or leave positions in acting status indefinitely.
I imagine if these rules had been in place in 205, Trump would never have run the first place — he obviously really doesn’t want to disclose his tax returns, and how much incentive would he have to be President if he couldn’t profit from it?