Last week, the American people it made loud and clear that they are fed up with corruption. Midterm exit polls indicate government corruption was a “major” or “crucial” factor in how over 90 percent of citizens voted, including sizable percentages of Republicans. That is consistent with a recent Gallup poll, which found that nearly 90 percent of Americans see widespread corruption in the U.S. government.
This outlook is consistent with the belief many Americans hold that the country now works one way for political insiders and their billionaire allies, and another way for ordinary citizens. The powerful can break the law and profit from shady deals with impunity; everyone else must play by the rules. Even some Republican elected officials, who have long stayed silent, are beginning to call for investigations into corrupt Trump family foreign entanglements.
If leaders in the new Congress and beyond want to strengthen American democracy, accountability for high-level corruption is essential. Long overdue congressional oversight is a crucial first step, but it won’t be nearly enough; even with Democrats taking back Congress and likely performing real oversight, more comprehensive forms of accountability will be necessary to truly restore faith in democracy. And given the difficulties of criminal prosecution, a lesser-known alternative — clawing back corruptly obtained money — may be the most viable approach for effective accountability. Pursued effectively, that form of accountability can also advance the priorities that voters care most about, like addressing the high prices caused by corrupt deals and conflicts of interest.
An Age of Impunity
Evidence of impunity is everywhere. The current administration appears more focused on enabling elite lawbreaking than holding people accountable. The furor over the Epstein files has produced few consequences for the powerful people who enabled Jeffrey Epstein’s abuses. Recent revelations that President Donald Trump has profited to the tune of $2 billion during just the first year of this term and that his Truth Social is now charging Wall Street insiders $100,000 a month for early access to his social media posts – apparently allowing both him and them to enrich themselves from insider information – add to this sense of impunity.
We have spent our careers working on issues around upholding the rule of law, at nonprofit ethics and democracy organizations, the Justice Department, the White House Counsel’s office, the U.S. Sentencing Commission, and the staff of the Senate Judiciary Committee. So we are under no illusions about how hard it is to hold wrongdoers accountable.
Although Democratic-led administrations have neither engaged in nor tolerated the sort of pervasive corruption we’re seeing now, they also have not demonstrated meaningful accountability. The Obama administration largely failed to hold anyone to account for the 2008 financial crisis. The Biden administration was halting and incoherent in pursuing accountability for Trump and those around him who engaged in previously unprecedented corruption and sought to overturn the 2020 election. The Obama and Biden administrations’ record on the Epstein matter continued the awful decades of failures. Some of those failures were driven partly by legitimate worries about destabilizing the economy or deepening political divides. But the message Americans received was unmistakable: the powerful can act with impunity, even in the most extreme circumstances.
Even when the executive branch has pursued criminal accountability for corruption, the Supreme Court has spent decades weakening its ability to do so. Consider, for example, decisions overturning the convictions of Virginia Republican Governor Bob McDonnell, Enron executives, New York Democratic Governor Andrew Cuomo’s close aide Joseph Percoco, or the perpetrators of Bridgegate, among others, for conduct that to most of us looks clearly corrupt.
It may be even more difficult to achieve criminal accountability for corruption in the future. It’s unclear what prosecutions could survive the Supreme Court’s Trump v. United States decision giving the president vast immunity and what are likely to be widespread blanket pardons by this president. Add to that a public that has increasingly lost trust in the institutions of justice, after nearly a generation of Trump either weaponizing law enforcement or claiming it is rigged against him.
None of that is to take criminal accountability for public corruption off the table when there’s a viable and important case. But we should try a different approach: getting the money back.
The Road to Recovery
A civil approach focused on clawing back ill-gotten gains could have real advantages. There is a strong case that existing laws allow for a process called disgorgement for corrupt conduct, with the government seizing money and property that were obtained through corruption. It would be akin to laws, both existing and proposed, that allow for civil lawsuits for abuses like excessive force by law enforcement.
For instance, if evidence made clear that a senior public official had received money, or an airplane, in exchange for favorable treatment in official decision-making, the federal government could likely sue to seize that money, or airplane. Upon proving in court by a preponderance of evidence that the ill-gotten goods came through illicit corruption, the government could take the money or plane.
The U.S. government, and others, have done this kind of thing before; the Supreme Court upheld this year that the Securities and Exchange Commission could seize money obtained through fraud. Peru engaged in a widespread effort to seize corruptly gained assets; the effort was controversial and perhaps too aggressive in some cases, but we can learn from that and do it in a restrained way here.
Repossessing ill-gotten gains would impose real consequences. Those who corruptly enriched themselves would feel genuine pain in the currency they care about most, and the public would see some of the most powerful insiders forced to surrender vast sums. Civil cases also carry a lower burden of proof than criminal ones, making visible results more achievable. And the approach comes with a powerful second act: recovered funds can be directed back to ordinary Americans who are struggling. Real consequences for the powerful, paired with real help for everyone else, could turn today’s dispiriting narrative on its head.
Because taking back money (even billions of it) is not the same as taking away someone’s liberty, a civil approach is also less likely to fuel the recriminations that criminal prosecutions have provoked.
That said, this must be done carefully. While the post-Orbán government in Hungary is pursuing an asset-recovery strategy, we have limited global evidence on whether civil accountability can break cycles of suspicion and revenge, and civil cases can themselves look abusive if those in power appear to bring weak claims to strip opponents of their property. Civil remedies should be pursued only when evidence of corruption is plentiful and presented openly, to courts and the public alike.
Tackling accountability for vast corruption may require multiple approaches. Congressional oversight must surely play a part. There will still be situations where criminal prosecution may be merited and necessary. Comprehensive fact-finding inquiries could uncover abuses and encourage public officials to take responsibility. Disqualification from office or professions could also play a role.
But getting the public’s money back is a great place to start. While Congress cannot by itself disgorge corruptly gotten funds, it can lay groundwork for others to do so. Congressional oversight, investigations, and hearings starting in January can obtain evidence of officials, companies, and individuals who wrongly benefited through illicit corruption and make a public case for getting the money back. Congress could also develop and even pass legislation facilitating the recovery of this money with more streamlined procedures and explicitly tailored legal provisions (of course, getting the current president to sign such legislation would be a challenge). At the federal level, a Department of Justice sympathetic to cracking down on corruption would be necessary to actually get the money back, and that likely is a prospect for 2029 at the earliest.
Private litigants and some states may be in a position to do this work sooner. Not every state Attorney General’s office will have the resources and know-how to do this, not to mention state laws permitting it and jurisdiction over instances of corruption that would allow specific cases to be brought. But some likely will and could begin exploring these options now.
Reclaiming the corruptly obtained money delivers consequences the public can see, avoids the worst pitfalls of criminal prosecution, and returns resources to the people who were cheated. Most importantly, it begins to prove to Americans that the same rules apply to everyone. And this month’s election results show how powerful the American people can be when given a chance to fight for democracy.
