DON'T REPEAT ONE OF OUR KEY FAILURES IN IRAQ:

[T]here is no reason, in principle, why a political leader cannot be properly punished for a crime he has committed. Many leaders have been, and some have even returned to political life. Former Italian Prime Minister Silvio Berlusconi was forced to perform community service following his conviction on charges of tax fraud (his age brought a more lenient sentence). Today, he is sitting in the European Parliament, which makes it hard for anyone to claim that liberal judges simply wanted to silence the Cavaliere. But the point of enforcing the law was to send a clear signal that Berlusconi's strategy of entering politics in order to gain immunity and distract from his shady business dealings would not become a precedent.

Then there is the question of Trump's actual record in office. One can find plenty of deeply objectionable policies, but it would be a mistake to abandon what President Thomas Jefferson, upon succeeding his archrival John Adams in 1801, called "the safety with which error of opinion may be tolerated, where reason is left free to combat it."

The same cannot be said for the corruption and systematic cruelty that the Trump administration has exhibited in its response to the COVID-19 crisis, and in separating children from their parents at the border. As the Harvard law professor Mark Tushnet has suggested, a commission of inquiry should be established to investigate policies and acts that went beyond incompetence into the realm of politically motivated malevolence. It is critical that we establish a proper record of these events, perhaps by offering leniency in exchange for candid accounts. The latter should help thinking about structural reforms, making at least quid pro quo corruption and blatant human-rights abuses less likely. 

Finally, Trump has broken plenty of informal presidential norms, from the relatively trivial - calling people names on Twitter - to the serious: hiding his tax returns. As many US jurists have argued, a prudent response would be to establish a separate commission to study the structural vulnerabilities of the presidency. Such an investigation may find that many informal norms - from financial transparency to relations with the Department of Justice - need to be codified. There would be nothing vengeful about this particular approach. After Watergate, Congress enacted a series of important ethics laws, which both parties tended to accept.

Tweet   @brothersjudd