Executive Accountability Legislation from Watergate to Trump--And Beyond
76 Pages Posted: 11 Jan 2022
Date Written: December 23, 2021
In the wake of Watergate, Congress enacted a slew of legislative reforms aimed at plugging the myriad holes in transparency and oversight the scandal laid bare. These included the Federal Advisory Committee Act, important amendments to the Freedom of Information Act, the Inspector General Act, the Ethics in Government Act, the Federal Election Commission Act and creation of the Federal Election Commission, the National Emergencies Act, the Foreign Intelligence Surveillance Act and the Impoundment Control Act. Unlike President Richard Nixon, who resigned on the threat of impeachment, President Donald J. Trump was twice impeached for alleged abuses in office—and he was twice acquitted in the Senate. Arguably, the articles of impeachment did not fully capture his abuses of office, including those that culminated in the 482-page report of Special Counsel Robert Mueller regarding the 2016 Trump campaign’s cooperation with Russian intelligence to influence the election on Trump’s behalf. But that was just the beginning. Over the course of four years in office, Trump and his enablers in Congress managed to exploit gaps or lapses in the post-Watergate reform legislation while flouting numerous provisions of the Constitution that were not even the focus of Congress post-Watergate—including the Emoluments Clauses, the Advice and Consent Clause, and aspects of the Impeachment Clauses. The Trump years also underscored inadequacies in the Twenty Fifth Amendment and the relatively ancient legislative process for tallying Electoral College votes. With Democrats now controlling both Houses of Congress, as well as the White House under President Joe Biden, it is imperative that the legislature step in once again to fill the separation of powers vacuum in the breach. To be sure, the Framers understood that power corrupts. Despite their expectation that only individuals of moral character and fidelity to the rule of law would ascend to the presidency, the structure of the Constitution itself underscores the foundational aim of accountability; thus, their most powerful creation—the Legislative Branch—must not sit idly by. Although this article does not (indeed, cannot) purport to lay out in any detail the model features of statutory reform measures, it does fill a significant gap in the legal literature: a review of the post-Watergate reform legislation and an assessment of how it fared through the Trump administration. The article also sketches out legislative priorities and needs as a preliminary benchmark for future research, analysis, and policy reform.
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