American democracy has been plagued by repeated failures to hold people in leadership positions accountable for gross abuses of power and outright federal crimes. It was not always this way, and numerous other advanced democracies have held former leaders to account through their domestic criminal justice systems – France, South Korea (including a former defense minister), Greece (former defense minister), and South Africa to name a few – and other, non-criminal forms of accountability. The United States may soon be joining them by turning a page on impunity for the powerful.
How might the future look different? Over the past several decades, the senior political levels of the U.S. government have enjoyed a remarkable level of impunity. Several senior officials involved in the Iran-Contra affair were indicted or convicted but received presidential pardons from President George H.W. Bush. President Bill Clinton committed perjury and got away with a mere temporary suspension of his law license and a judicially imposed fine. In response to the CIA torture program organized at the highest levels of the U.S. government, President-elect Barack Obama declared his “belief that we need to look forward as opposed to looking backwards.” His administration succumbed to the inside-the-beltway view that saw accountability as institutionally destructive. The Biden Justice Department under Attorney General Merrick Garland, for its part, moved far too slowly in seeking accountability for the criminal conspiracy to overturn the 2020 presidential election, largely out of mortal fear of accusations of politicization of justice.
Thankfully, we now appear to be entering a new era that can put to rest the false (and sometimes self-serving) claims about the costs of seeking accountability. The shift to holding people accountable, particularly for grave and blatantly unlawful abuses of power – including serious financial crimes that prey on the poor and middle class, corrosive corruption, and the state murder of people on boats in the Caribbean and East Pacific, as well as on American streets – does not diminish faith in American democracy and the rule of law. It enhances both. Indeed, accountability and “retribution” are not the same thing, and those who suggest otherwise are playing a perilous game.
At bottom, accountability – and the fundamental principle that no person is above the law – is an American value and a prerequisite to a functioning democracy. Impunity, by contrast, is a shield used by autocratic and kleptocratic regimes, and is fundamentally inconsistent with the rule of law. It is corrupting of individual leaders and corrosive to the republic. It further erodes Americans’ faith in their own government and undermines U.S. credibility abroad.
Properly conceived, accountability can come in many different forms. Depending on the wrong committed, the level of culpability, and the evidence presented, accountability may be meted out through criminal justice, civil sanctions, professional disciplinary actions, providing remedies to those harmed by unlawful abuses of power, and more.
Getting serious about accountability will require sustained attention by the next presidential administration, Congress, state and local authorities, as well as professional associations and civil society. Each will have a vital role to play in restoring the rule of law, but will also face serious challenges that must be thought through today.
What Accountability Within the Executive Branch Could Look Like
The next rule of law-abiding administration must proceed quickly but carefully with meaningful accountability for grave abuses of power, starting at the top with those most responsible for ordering and authorizing serious wrongdoing. Likewise, enforcement agencies across the federal government should use the tools at their disposal to achieve “muscular but fair” enforcement of federal laws that have been ignored or neglected, from those protecting workers from wage theft to enforcing consumer protection and anti-fraud laws.
With all of these processes, there must be no short circuiting of due process for any person accused of misconduct. Otherwise, the accountability effort itself will be illegitimate and invalid.
At the same time, especially for blatant and transparently illegal acts, a new administration should not delay seeking accountability by undertaking a lengthy “study” or “review” of what the public has already seen. As we know from serving in government, bureaucratic task forces are often where accountability efforts are sent to die. Getting the facts right is imperative – waiting to pursue accountability for anyone until every fact is known about everyone will lead to failure. The new administration will also need to become comfortable releasing information about its predecessors’ actions to help inform the public and support state and local law enforcement efforts. A commitment to radical transparency can have a constructive disciplining effect on future administration officials as well.
When it comes to criminal accountability in particular, many of the challenges are well known. First and foremost, the president has said he will issue “tremendous numbers of pardons” – which will likely include his inner circle and many of his subordinates. That likely takes federal prosecution off the table for the underlying conduct. But it does not shield anyone from testifying before Congress or providing testimony to federal officials. Indeed, despite any pardon, those who perjure themselves in an attempt to cover up their corrupt or unlawful actions could potentially still be prosecuted for that perjury (or for contempt if they refuse to abide by subpoenas). Congress would be wise to watch carefully who is pardoned, for which offenses, and ensure that those individuals either tell their truth – creating a valuable public record – or face the consequences, with a particular focus on actors who are most responsible or hold the most influence for egregious wrongdoing.
Immunity doctrine – shielding federal officials from some types of civil and criminal liability – may also stand in the way of holding some officials accountable for unlawful conduct. And the Supreme Court’s Trump v. United States decision makes murkier what the contours of immunity for official acts might be.
There will also be difficult decisions to be made when it comes to illegal acts carried out below the political-appointee level (where responsibility is greatest) in the chain of command. We commend former Air Force Secretary Frank Kendall’s nine steps on what accountability should look like at the Department of Defense. It is, in many respects, a model for other departments and agencies. Starting at the top, providing exemplary due process, and acting fairly but quickly on a case-by-case basis should be guiding principles for a new rule-of-law administration. And when the most responsible senior officials cannot be held to account through criminal justice mechanisms due to pardons or for other reasons, administrative remedies should be assessed, and cooperation with congressional inquiries should be required. In particular for those below senior ranks, non-criminal administrative mechanisms may often be the most appropriate form of accountability.
Another challenge will be a view that DOJ Office of Legal Counsel (OLC) memos (advising the president on whether a proposed operation or course of conduct is lawful) function as a “golden shield” for conduct the memos purport to bless as lawful, but that view should be treated with great skepticism. The idea, sometimes characterized as a “preemptive pardon” for government officials following OLC advice, can be explained as follows:
This is largely the result of a doctrine called “entrapment by estoppel,” under which it would be a due process violation to prosecute a person who reasonably relied on a legal opinion that the conduct in question was lawful. (This is an exception to the usual rule that mistake of law is not a defense to criminal charges.) The upshot is that an OLC opinion has prospective immunity-conferring power. A former general counsel of the CIA referred to this as a “golden shield.”
Courts that have looked at the issue have required government officials’ reliance on the legal advice given to be “reasonable” based on the circumstances. The question may boil down to whether those carrying out manifestly illegal orders – or giving them – had been put on notice that they should look beyond the OLC memo at issue to determine the legality of their actions. (In some cases, there may also be a real question as to whether those authoring the memos were themselves potentially engaged in a conspiracy to commit criminal violations through flagrant abuse of their office.)
Much as we’ve seen courts begin to decline to afford the government a “presumption of regularity” in litigation over executive action during the second Trump administration, the justice system may put more meaningful limitations on “entrapment by estoppel” than we have seen to date. The alternative, after all, is a road that leads to essentially anything any current, past, or future OLC purports to bless – no matter how egregiously criminal – generates impunity. And while overcorrecting would certainly be unfair to officials who have relied in good faith on bad advice in borderline cases, what should be clear is that effectively complete impunity even for senior officials who may purposefully use OLC to sanitize grossly illegal conduct (like torture or murder), or to further criminal conspiracies, is poisonous to the rule of law.
These will be difficult, case-by-case questions that will need to be answered in some of the hardest contexts – like the strikes on suspected narco-traffickers that are reportedly blessed by OLC, but where the overwhelming weight of expert opinion quickly and clearly made plain that every strike in the campaign is an extrajudicial killing, or murder under U.S. domestic law. Much as it is repugnant to the rule of law that no senior U.S. official was held responsible for directing torture, it is also unacceptable to disavow accountability for an ongoing, public campaign of state murder. And if “golden shields” (or pardons) do prevent criminal accountability for those most responsible for these most egregious types of unlawful conduct, it is all the more imperative that other forms of accountability be pursued.
To be clear on what should not be viewed as an obstacle, policymakers and political leaders should reject the myth that pursuing accountability will make it harder to pursue an affirmative governing agenda. Different personnel are responsible for these very different roles in government (prosecutors and enforcement officials do not make policy, and policymakers do not investigate or prosecute individual cases, nor should they). We’ll simply need to walk and chew gum if we want to restore faith in American democracy. And accountability can reinforce and further good governance going forward; we learn lessons and avoid repeating our mistakes when we build guardrails informed by an accurate picture of past wrongdoing, including how individuals work the system.
Congress’ Role in Accountability
Congress has a vital role to play. Lawmakers can and should investigate abuses of power, wrongdoing under the color of law, and corrupt conduct – whether unlawful or not. For example, some of the information that could come to light in investigating the Iran War might point to unlawful conduct, but may also point to negligence or simply failed assumptions that should be corrected going forward. In addressing corruption, some conduct will be found criminal while a large swath will be grossly unethical but lawful. Particularly in these types of circumstances, it’s important to keep in mind that accountability is about more than sanctioning an individual’s misconduct. It is also a means to achieve needed reform. Uncovering corrupt and other unethical practices even when “lawful but awful” can create transparency and inform legislation to amend federal and state laws, for example, including more clearly prohibiting certain bad acts and ensuring effective guardrails against official misconduct.
Whether through its usual investigative committees, special commissions, or other mechanisms that it might create, Congress can collect testimony and documents, create a public record, and use the information it obtains as a basis for legislative reforms. It can also make criminal referrals both to federal and state law enforcement agencies (we discuss the difficulty of pardons separately).
State and Local Governments
State and local governments, likewise, are important actors in achieving criminal and non-criminal forms of accountability. Particularly for individuals pardoned by the president, criminal prosecution may only be possible if state or local charges are available (given presidential pardons only extend to federal offenses). And state attorneys general can sometimes enforce federal law when federal officials refuse to do so. States also have pioneered non-criminal mechanisms that can build toward accountability, such as Minnesota’s Truth Council and the Illinois Accountability Commission (which has “undertaken a comprehensive investigation” and is creating a public record of federal immigration enforcement actions during Operation Midway).
Private actors, too, can be the subject of state and local accountability efforts. As Alison Hirsch and Justin Florence explained, state and local governments have a range of tools to stop, slow down, and deter unlawful federal conduct, and to pursue criminal accountability for wrongdoing, including by private individuals or companies. For example:
If the president accepts a bribe from a crypto company, the state where it’s headquartered may have a difficult time prosecuting the president. But the crypto company? States may be able to pursue an investigation into that company under state bribery, fraud, conspiracy, or related criminal statutes.
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States have powerful anti-fraud, securities, consumer-protection, and unfair-competition laws that can provide remedies even when criminal prosecution is unavailable or impracticable.
Of course, state and local governments will also face some serious obstacles, limited resources and lack of access to information held by the executive branch chief among them, at least under the current presidential administration. Civil society organizations may be able to step in with resources. Cooperation across jurisdictions and between the state and local levels can also help in this regard. State and local-level investigations can also proceed in tandem with inquiries on Capitol Hill, preserving evidence, identifying witnesses, and undertaking investigatory steps that can reinforce each other’s efforts. Congress can also help agenda setting by shedding light on best practices at the state and local level through public hearings and more.
The Tools Are There to End Impunity
The new Congress appears to be headed in the right direction, toward laying the groundwork for accountability. Rep. Hakeem Jeffries’ (D-NY) Nov. 4 public letter to colleagues announcing his candidacy for Speaker of the House is clear: “accountability begins at home.” From long-time oversight champions (Rep. Robert Garcia (D-CA), Rep. Jamie Raskin (D-MD)) to newcomers in the Senate (though not all), there are many indicators of a new era of checks and balances, accountability, and oversight following the decisive midterm election results.
The outgoing Congress also showed signs of support for serious investigations from Utah’s Sen. John Curtis (R-UT), alongside Judiciary Committee members Thom Tillis (R-NC) and John Cornyn (R-TX). Now, with the knowledge on Capitol Hill that the midterm exit polls indicate government corruption was a “major” or “crucial” factor in how over 90 percent of people said they voted, others are also sounding the alarm, including Sen. Ron Johnson (R-WI) who will be up for reelection in 2028.
State and local governments may also be ready to move more assertively, with significant brainpower having been dedicated to analyzing the tools available. And now new attorneys general and governors have been swept into office by multiracial majorities wanting, among other things, a course correction on this administration’s abuses in immigration enforcement, corruption, and more.
While it is too early to say what the next rule of law executive branch will do, what is clear is that there will be a range of mechanisms that can be pursued at each of these levels if officials are serious about breaking the cycle of impunity for the most powerful. The United States can still step back from creating a political and economic class that is answerable to no one and beyond the reach of law.
