Biden Claims Prosecuting Trump’s Crimes Will Undermine Unity

Newsletter 60: Real threat is in not holding Trump and his associates accountable

The transition effort continues to ramp up with Biden announcing more key members of his White House team. Together, those figures paint a far less rosy picture than the one that was shaping up last week.  As concerning as many of those names are, Monday’s personnel announcement was not the most alarming sign from the Biden team this week. No, that honor is reserved for indications that Biden heavily favors letting Trump and all those he enabled off the hook for the sake of “unity.” 

As some have been quick to point out, Biden has promised (unlike his predecessor) not to interfere with the Justice Department’s independence. In other words, if they are so inclined, Justice Department officials can still pursue investigations into Trump. So long as Biden makes clear that’s not his preference, however, they almost certainly won’t be. First, Biden hasn’t yet chosen those who will lead his Justice Department -- their alignment with him on this front will almost certainly be a factor, at least implicitly. Second, in making clear what he prefers, Biden is telling all those that work in the Justice Department that the way to get ahead is to put the nasty, Trumpy past behind them. 

Unfortunately for us all, this would be nothing short of a disaster. Investigating Trump and those who surround him serves a much larger purpose than mere retribution. While we have been bombarded with evidence of lawlessness taking place right out in the open throughout Trump’s time in office, there is certain to be a mountain of illegal behavior of which we are not aware. We shouldn’t just ignore the evidence, hidden or public, and expect it to go away. 

This is the key fallacy that undergirds arguments in favor of “looking forward”; it assumes that consequences of these actions really can be relegated to a past from which we simply move on. They can’t be. President Obama’s decision not to prosecute CEOs at the big banks is still having an impact. Countless people who, indisputably, broke the law in and out of government not only escaped accountability, but are now in the Trump administration wreaking havoc. A corrupt Reagan official, Elliott Abrams, was pardoned before most of RDP’s staff was born (1992) and has served in the Trump Administration!

Ignoring the last four years will not work. Institutions that were too weak to take on Trump will remain broken unless they are thoroughly investigated and the degree of their destruction publicized. Biden will spend four years defusing landmines and sometimes, suffering casualties, if an effort is not made early to find all that Trump left behind. Trump officials who escape accountability may well turn up again in 2024, unchastened and ready to begin another rampage. And, once again, Americans will see that if you have enough money or the right friends, you can break any law and hurt anyone you like without consequences. When Biden talks of his desire to “unite” the country, we doubt he means in cynicism.  

2020 (and potentially 2021)

If the Biden team was hoping that the election season détente with progressives would last, they were likely sorely disappointed this week. Last week’s cautious optimism about Agency Review Team membership was quickly replaced with loud displeasure at Biden’s initial choices for White House staff. That includes Steve Ricchetti, a longtime lobbyist who has represented such fine institutions as Eli Lilly and Experian. As if that record was not troubling enough, he’s already facing questions about how he will deal with another, rather glaring, conflict of interest. His brother, Jeff Ricchetti, continues to lead the lobbying shop the two co-founded together, and has recently taken on some new Big Pharma clients who are surely searching for a way to head off executive action to lower drug prices. Climate activists also pushed back against Biden’s decision to put Rep. Cedric Richmond, who is among the top Democratic recipients of fossil fuel donations, on the White House team. Strategy and external affairs officials for Uber and Pepsico were also among those named.

More names, including Treasury Secretary, are expected imminently. Biden claims that pick, which is to come just before or just after Thanksgiving, will satisfy both moderates and progressives. Names for the National Economic Council and Council of Economic Advisors seem to be just about anyone’s guess. At the Office of Management and Budget, though, there is reportedly cause for alarm. Biden is reportedly considering Bruce Reed, deficit-hawk-extraordinaire and welfare-reform-enthusiast to serve as Director. In this role, Reed would have tremendous power to put austerity back on the agenda and curb regulatory ambition. You can bet that if he’s the pick there will be a real outcry from the progressive wing (and maybe even some opposition from Democrats in the Senate). Robert Kuttner at the American Prospect has a helpful rundown of some of the others who are reportedly in the running.

No matter who Biden chooses, corporate America is getting prepared. Lyft hired a former Biden staffer this week. Other companies are sure to follow. With many Biden-linked lobbyists populating K Street, they’ll have many potential routes to the White House to choose from. 

Progressives, however, continue to run interference. And those efforts are definitely getting noticed. Reporting on rumored revolvers is increasingly being accompanied with a common disclaimer, something along the lines of “their connections to X company may be a problem.” 

Beyond raising hell about those corporate connections, progressive groups are also aggressively pushing their own names. Over 150 groups joined together to oppose former Sen. Heidi Heitkamp for Secretary of Agriculture, a subset of whom are championing Congressional Progressive Caucus member Rep. Marcia Fudge as an alternative. Meanwhile, the Progressive Change Institute (PCI) has released a list of 400 names, broken down by area of expertise, that is meant to “mak[e] it easy for them to appoint good people.”

Congressional Oversight

It’s been nearly two weeks since Joe Biden was declared the apparent winner of the 2020 election. And yet, the transition has not yet officially begun. General Services Administrator (GSA) Emily Murphy still has not allowed the Biden team to access government resources or receive critical briefings. That is no idle matter; each day this drags on is a day of planning for the coming catastrophe lost. Lives are, quite literally, at stake.

So far, the response from House Democrats has been...well, lacking. For almost a fortnight, Murphy’s obstruction elicited no more than stern letters asking for an explanation. Yesterday, the Oversight committee decided to (marginally) up the ante by demanding a briefing by Monday. No public hearing, no subpoena, just a request for a briefing that will almost certainly be ignored. Patience in the face of an eroding democracy is, in our mind, not a virtue.

Governance

For the Hill this week, visiting fellow Yevgeny Shrago asks, why is a political appointee in charge of ascertaining the results of the election anyway? As it turns out, this is a symptom of a broader problem. The federal government has entirely too many political appointees, a fact that is undermining accountability and good governance. Luckily, as Yevgeny lays out, cutting the number of appointees may actually be one of the rare opportunities for fruitful bipartisan consensus. 

Before we get to that point, however, Biden is going to need to figure out how to deal with the leftover Trump appointees who may have burrowed into the civil service. We don’t yet know how extensive a problem this will be, but reports of it happening are already beginning to leak out. Michael Ellis, of Ukraine call infamy, was recently hired as the National Security Administration’s General Counsel over a career civil servant who appears to have been far more qualified. As a career employee, Ellis now benefits from civil service protections that prevent at will firing, although he’s on a probationary period for the next two years that facilitates removal. Without action, it seems likely that Ellis will cause problems for a Biden administration. It seems even more likely that he’s not the only such burrower. 

Independent Agencies

Republican lawmakers continue to go along with Trump’s rather unconvincing coup and yet, Democratic leaders seem all too willing to assume that they’re just moments from coming to the negotiating table. Last week, Jim Clyburn told NBC that working with McConnell wouldn’t be as hard as many think. And just today, when asked about his reticence to escalate the fight over GSA’s continued obstruction Biden, said that his “judgement is we’ll get further along by actually working with Republican colleagues now."

As our Eleanor Eagan and Mariama Eversley for the American Prospect today, McConnell’s treatment of the Merit Systems Protection Board (MSPB) would suggest otherwise. For the last four years, the MSPB, which hears appeals of adverse employment actions against civil servants, has been dormant, with thousands of cases piling up. That means thousands of civil servants awaiting a final decision with their lives on hold. It also, almost certainly, means thousands more thinking twice about reporting wrongdoing when such delays are what may await them.

For much of the last three years, McConnell could have changed that by simply allowing the pending nominees a vote. But he didn’t. Instead, he let the board and all of the civil servants with cases before it languish. He will not hesitate to do the same to any number of independent agencies under Biden. 

Although “working with Republican colleagues” may be Biden’s inclination, if those colleagues are dead set on shutting down core governmental functions, he’s going to need to get creative. That means using recess appointments (the Vacancies Act does not apply at multimember commissions). 

The Revolving Door Project team continues to beat this drum and will for the foreseeable future. If Biden hopes to deliver on his mandate at independent agencies and beyond he’s going to need to “meet McConnell’s obstructionist strategy with equal opposing force.”

Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:

No, Mitch McConnell Can’t Veto Joe Biden’s Cabinet

Biden's cabinet could do a lot – if he resists the urge to fill it with 'consensus' picks 

GSA head's transition refusal a predictable consequence of too many political appointees

Joe Biden Must Not Look for Unity in Mitch McConnell’s Obstruction

Here are 277 policies that Biden can enact on day one – without Congress | Max Moran

In a Functioning Democracy, Pelosi and Schumer Would Have Already Been Tossed from Democratic Leadership

Progressive Groups Urge President-Elect Biden Not to Appoint Former Google CEO to Administration 

Economists-For-Hire Help Monopolists And Big Oil Both

Biden says he’s decided on treasury secretary nomination

Liberal climate activists challenge Biden to keep promises on personnel

Progressive Coalition Demands 'No Corporate Nominees' for Biden Cabinet

Big Tech and Big Law dominate Biden transition teams, tempering progressive hopes

What Biden means for Big Tech—and Google in particular

Democrats divided: Biden's election win brings end to party's uneasy truce

Another progressive group suggests Biden hires: ‘We are making it easy for them to appoint good people.’

Prop 22 Gives Uber and Lyft a New Model for Gig Economy Workers

The economic advisers vying for gigs in Joe Biden's White House

The Brewing Democratic Fight Over Biden’s Cabinet

Washington Lobbyists Know Biden Well—as Their Former Boss

After defeating Trump, Biden faces a Democratic Party straining at the seams

The Rick Smith Show 11-16-20

Joe Biden's transition team has to decide who to hire from Big Tech

Progressives turned out for Joe Biden. Now they want a big role in his administration.

Can America Restore the Rule of Law Without Prosecuting Trump?

Biden’s First Priority: Undo the Damage Done by Trump

What’s in store for the FCC during the transition

Biden's Mr. Austerity: Bruce Reed

K Street moves to counter 'purity' test for Biden administration

Biden urged not to pick Eric Schmidt, former Google CEO, in admin role

Biden says he’s decided on treasury secretary nomination

Biden Treasury Pick Could Defund the Fossil Fuel Industry, Climate

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