Where is the deterrence?
Fear of future enforcement can be a powerful tool against today's lawlessness.
If there’s one thing Democratic leadership agrees upon at the moment, it is their utter powerlessness to do anything to reign in the Trump administration’s lawless behavior. Just because Democrats are out of power today does not mean they will be out of power forever. And they should be loudly telegraphing the consequences of today’s actions for when that moment of accountability comes. This should make members of the administration and their fellow travelers think twice about ignoring the law.
A couple of examples:
The administration has all but ceased major environmental law enforcement, paused enforcement of the Foreign Corrupt Practices Act, and broken laws on accessing IRS records, off the top of my head. A more complete list is here. A friendly Department of Justice has been an enthusiastic accomplice rather than independent enforcer of the rule of law. The conclusion would appear to be that there is nothing to be done, short of impeachment. Impeachment is not going to happen, so I guess that’s the ballgame.
Look, the statute of limitations on the crimes currently not being enforced are longer than 4 years. Commit a crime today, and Pam Bondi may look the other way. But you’re still on the hook for that crime when Jack Smith is AG in 2029. How bulletproof do you think your pardon will be?
Deterring bad behavior requires credibility. If Democrats sit on their hands for the next four years, there may be overwhelming pressure to “turn the page” and “look forward, not backward.” It has happened before, and you can see it coming again. After all, the people doing crimes today are acting with the blessing of the President, and they will surely cry foul. Is it not dangerous to start prosecuting political opponents out of the blue for acts that were encouraged (if not ordered) by the government?
This is why it is imperative that Democrats get out there now, flag actions that will likely be subject to prosecution, and warn of the impending accountability. Democrats in congress may not be able to pass laws, but they can still conduct oversight. They should be highlighting crimes for future enforcement day in and day out. It should be a tired refrain—this was against the law, we told them they would be held accountable, and they did it anyway. Of course they should face justice.
What about those outside the reach of US law?
Here I’m thinking about the smugness of Salvadoran President Nayib Bukele Oval Office performance. He too is working at the behest of President Trump, and clearly not giving much thought to his relationship with future Presidents.
Aside from photo ops, what can Democrats do to shut down extrajudicial renditions to foreign prisons or foreign interference in domestic politics? Here too, I think someone needs to step up and telegraph a message of deterrence.
The US has a long, ignoble history of underhanded activity in Central America. I don’t think a leading Democrat should be out there threatening drone strikes on foreign leaders. But there is a wide rhetorical expanse between the current approach—asking nicely as if we are all acting in good faith—and issuing explicit threats. Democrats should be warning of the long-term consequences of meddling in US affairs the way he is now. Cool or not, they should be talking about how dangerous the life of a dictator is. Democrats need to influence Bukele’s cost-benefit analysis, and videos of Gaddafi’s last moments tend to focus a dictator’s mind. He, and any other leader thinking of interfering in U.S. domestic politics should be scared to death of what awaits them in future administrations.
Democrats are out of power. What leverage do they have? Their future ability to hold people accountable for the crimes they commit today. The scale of impunity with which the Trump administration is acting at the moment is too vast for presidential pardons to cover completely. How certain are the disposable apparatchiks that their names will be included for every violation they commit? Will overly broad pardons hold up in court? The future is uncertain! Democrats should make sure that accountability is not. By publicly documenting criminal acts and promising the prosecute them the moment rule of law returns to the Department of Justice, they may well be able to establish some measure of deterrence against those who would serve President Trump’s illegal whims.