Published by The Lawfare Institute
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The Jan. 6 committee has concluded, with good evidence in hand, that, after Election Day in 2020, the Trump-Pence campaign began soliciting money from unwitting donors for an election defense that the funds were never used for and perhaps never intended for. A blizzard of appeals went out and hundreds of millions of dollars were raised—not a penny of which was devoted to the declared purpose of restoring the stolen election to Donald Trump. In short, a scam.
Where should this rank among the offenses that Trump and his allies committed in their “stop the steal” program? The committee stressed this “con” as another avenue for the endless repetition of the “big lie” but this time with a twist: the pocketing of the conned voters’ money. On one level, it can be taken as further evidence of the cynicism of the lie. Or, from another perspective, the scam goes to show the amoralism of Trump, who cannot escape finding a way to take some hapless audience to the cleaners. It is Trump University, the Jan. 6 campus.
The committee has detailed assaults on the democratic process far graver than sleazy—and most likely illegal—fundraising practices, and so the fundraising scam may seem relatively small-bore. But it would be a mistake to see it this way.
Precisely because predatory fundraising is more familiar, it illustrates the deep problem with a feature of the United States’ constitutional process: the president-as-candidate. While other candidates may raise money with extreme appeals and various degrees of trickery, the president of the United States is not just any candidate, and the president’s conduct on the campaign trail is especially consequential for democracy.
Deceptive campaign tactics and dirty tricks cut more deeply into democracy when a president—rather than any other candidate—engages in them. It matters more if it is the president who, as the losing candidate for reelection, refuses to concede an election. Asked during his testimony before the Jan. 6 committee to explain the challenges in refuting the big lie, the Georgia secretary of state’s chief operating officer, Gabriel Sterling, stressed the persuasive power of the lie’s source: “[T]here was a reticence of people who needed to believe it to believe it because the President of the United States, who many looked up to and respected, was telling them it wasn’t true despite the facts.”
These same people who needed to believe what the president of the United States told them were also easy enough targets for a massive fundraising scam. And, in the worst case, presidents who, as candidates, will do anything to win, or to deny a loss and cling to power, have exceptional power at their disposal to pursue these ends, by, say, appointing pliant military, national security, and law enforcement leadership.
Of course, the president-as-candidate has the First Amendment rights other candidates have. And, yes, presidents who run for reelection are entitled to run to win and will decline in all competitive fairness to hold themselves to higher ethical standards than their opponents would have to observe. But this is not an answer to the problem; it just restates it.
In this age of alarming autocratic pressures bubbling up in U.S. politics, close attention should be paid to the risks of presidents who are also political candidates and whose dual roles in seeking reelection pose unique dangers. Americans have had enough experience with the problem. In its most extreme forms, we have suffered through Nixon and Watergate, then Trump and Jan. 6; and there is no basis for assuming that it will end now, or that only one party will ever produce the presidents who will go to disastrous lengths to hold on to power.
So what can be done to address the problem?
The most decisive move would be to limit presidents to one term. One should be enough, with the possibility of stretching it to six years, but no reelection. Then there would be no election loss that a president could refuse to concede, no abuse of official power to stay in power, no lies spread among the voters with the full force of the Oval Office behind them, no unique capacity to make money off passionately gullible supporters.
Of course, a constitutional amendment would be required to establish a six-year term. While the prospects may be slim for the foreseeable future, there is every reason to revive it as a topic of reform conversation.
In the early 20th century, the single six-year presidential term became a plank of the Democratic Party platform, passed the Senate, and then foundered on opposition from Woodrow Wilson. In the 1980s, it sprang up again with support from Democratic and Republican notables who had served as high government officials. They formed a National Committee for a Single Six-Year Presidential Term with the goal of giving presidents more time, but with less political distractions and pressures, to get hard things done. Critics countered with an appeal to the principle of democratic accountability: the importance of having presidents worry about public support, which is at its keenest when an election is around the corner.
Missing from this discussion was how presidents preoccupied with reelection to this office can deploy their official authority and influence in dangerous ways, imperiling the democratic process. In a curious lapse of clear thinking, Arthur Schlesinger Jr., who wrote compellingly about the “imperial presidency,” somehow thought that the two-term limit would operate as a safeguard against the aspiring autocrat. “Few things have a more tonic effect than a President’s sensitivities to public needs and hopes than the desire for re-election.”
At this distance, the observation comes off as strikingly naïve. Like other candidates, presidents who run for reelection may well appeal to the public’s hopes and profess to act—and to have acted—to meet their needs, but none can be sure, and few will be convinced, that running “on the issues” or “on their record” will suffice. They also vacuum up and spend as much money as they can and call on every asset available. And the most potent asset they command, which no other candidate in the field can match, is incumbency and the vast powers it confers.
Many observers on the left and right, including Republicans as well as Democrats and independents, might see the merits of the one-term limit: The danger of the president-as-candidate affects both parties and voters of every conceivable political association. As Moisés Naím has written, “[P]ower is seldom ceded voluntarily. Those who have it naturally try to contain and counter the attempts of their rivals to weaken or replace them.” The problem becomes that much worse when American politics passes through a polarized period such as the current one, when a president’s supporters take victory (or defeat of the opposition) as something like a matter of survival and may countenance a “win at all costs” mentality.
Whether or whenever a constitutional amendment is within reach, in the meantime, the laws should be scoured for every means possible of removing the opportunities for presidents’ abuse of power and position in interests of their own reelection. There is inevitably an “incumbent’s advantage,” but it has become clear that for presidents, it is more than a simple leg up in the race, somehow acceptable as a fact of political life. It can take an intolerable direction, causing vastly more damage than in offices other than the presidency. The not-so “little things” add up and soon, as in Trump’s case, the president who thumbed his nose at the Hatch Act and announced his candidacy from the South Lawn of the White House, would look to his vice president and his Department of Justice to support him in disregarding the outcome of the election he lost.
The most immediate concern is a president’s misuse of federal law enforcement by politicizing the Department of Justice. The obstruction of justice law can be amended to apply to presidents in defined circumstances, such as interventions to influence the outcome of their elections. The department can develop internal protections against political manipulation, shoring up the norms that have come under serious strain in recent years. There are other agencies, such as the Department of Homeland Security, whose potential political corruption warrants preventive measures, and reforms can include focusing inspectors general on abuses of this kind throughout the federal government. Campaign finance laws should also be tightened against fraudulent campaign practices and fundraising that presidents, because they are presidents, can use to particularly powerful effect. Federal law can be strengthened against presidents’ uses of federal property and other resources for partisan political purposes.
All of these measures, from the more dramatic consideration of a one-term presidency to more comprehensive and statutory protections against abuse of office and influence, will protect not just donors who may object to being scammed, or may not, or the opposition candidates and their supporters who will cry foul. In recognizing the deep problem of the president-as-candidate, these reforms have a vital role in protecting democracy, for everyone’s sake.