Column: Shaming? Absolution? Jail? How to treat those complicit in Trump's wrongdoing

Among the glories of democratic government, the historian Jill Lepore wrote recently, are that after an election "the loser concedes without violence, and the winner accepts without vengeance."

Lepore was right in her observation but wrong in assessing its current implications for the U.S. She was arguing against a reckoning of Trump administration wrongdoing that takes the form of either a South Africa-style "truth and reconciliation commission" or criminal prosecutions.

Either option would inevitably become an instrument of partisanship, Lepore argues. She approvingly quotes Democratic presidential candidate Joe Biden as warning that criminal prosecutions of Trump officials would be "probably not very … good for democracy.”

Rep. Adam Schiff, on the eve of the impeachment of President Trump

"In the trade-off between prosecution and stability, Biden chooses stability," Lepore writes. "Much of the left does not." Her conclusion: Let history judge.

But that won't do for today's world. (We're writing in the admittedly premature presumption that Biden will win the election, and therefore that the reckoning of the Trump years can begin as early as this January; but of course he might not win.)

Almost by definition, members of any ousted presidential administration have been responsible for policies that have become politically unpopular. Criminalizing political disagreements of that nature violates American norms.

But the behavior of Trump and his acolytes is arguably on a different level altogether. No White House in memory has seen so many top aides convicted of criminal activities, often committed while in office.

The White House is allegedly rife with the flouting of legal guardrails such as the Hatch Act (barring partisan activities by federal employees), the emolument clauses of the Constitution (barring most payments to the president from foreign or domestic sources) and other possible misdeeds.

The refusal to allow executive branch officers to comply with congressional subpoenas undermines constitutional checks and balances.

What's the proper response to such a record?

A truth and reconciliation commission seems to miss the point. As Lepore observes, these broad inquiries are typically seen in countries undergoing a transition from autocracy to democracy, such as in South Africa and Chile.

They're aimed at "elevating collective storytelling and chronicling over individual culpability," she wrote, providing closure for victims of regimes in which not only those with direct government authority may have participated in atrocities. They're useful as a sort of societywide cleansing, not for identifying and punishing individual actors.

But crimes are committed by individual humans, not society as a whole. The U.S. has a discreditable history of absolving wrongdoers when their crimes are grand enough and the perpetrators sufficiently prominent. That's why almost no one has done time for the financial chicanery that produced the Great Recession.

Those who question the propriety of subjecting Trump officials to criminal inquiry point to Gerald Ford's 1974 pardon of Richard Nixon for Watergate-related crimes — indeed, for any crimes Nixon might have committed while president.

Yet it may have been forgotten that the pardon was, in fact, narrow — it didn't cover Nixon's aiders and abettors.

Three members of his inner circle were subsequently convicted and served prison terms for obstruction of justice and other crimes: Atty. Gen. John Mitchell and White House aides John Ehrlichman and H.R. Haldeman. There are hardly any grounds for rejecting criminal prosecutions of Trump administration officials where evidence of criminality is sufficient to bring a case.

What of Trump aides who devised, led or rationalized abhorrent policies but stopped short of possible crimes?

This question has already arisen. Former White House spokeswoman Sarah Huckabee Sanders was asked to leave a Washington-area restaurant in 2018 when its workers objected to serving her. Kirstjen Nielsen, then the secretary of the Department of Homeland Security, and White House aide Stephen Miller — both key figures in Trump's anti-immigration policymaking — were heckled at Washington-area Mexican restaurants. Miller also faced pushback from an employee at a sushi restaurant when he came to pick up a takeout order.

Reminding the public of Trump officials' responsibility for detestable policies seems like a suitable counterweight to the advantages customarily enjoyed by alumni of presidential administrations.

In normal times, even those of serious political polarization, a host of sinecures beckoned to anyone with a White House job on their CV. Fortune 500 corporations offered the highest-placed individuals board seats or executive positions, think tanks and major universities plied them with faculty appointments.

After leaving the Obama administration, former White House Press Secretary Jay Carney became a senior communications executive at Amazon. David Plouffe, one of the architects of Obama's 2008 electoral victory, later jumped to Uber as a high-level strategist. (He has since returned to political consulting.)

There was a symbiotic quid pro quo in many of those cases, as each participant in the deals received reflected glory from the other.

Lower-placed officials who had joined an administration as a career stepping stone were also rewarded — law firm appointments on the partnership track, lobbyist jobs paying unimaginable sums, or ever more lofty professional milestones: Of the nine current sitting members of the U.S. Supreme Court, seven list service in the loftiest echelons of the executive branch in their biographies.

In April 2019, a coalition of immigrant rights groups called on the CEOs of Fortune 500 companies effectively to blacklist Trump aides who had participated in "the Trump administration’s family separation immigration policy." The groups listed 27 current and former officials, up to and including Cabinet secretaries. High-tech companies may be especially reluctant to bring any Trump alumni on, since they value their image — not always reflected in reality — as progressive enterprises.

Not a few government officials and politicians have already tried to set the stage for claiming absolution, presumably reading the electoral tea leaves pointing to Trump's defeat.

Sen. John Cornyn (R-Texas), a secure pro-Trump vote in Congress throughout Trump's term who is locked in a tight race for reelection, now claims that "he has disagreed with President Trump on issues such as budget deficits and debt, tariffs and trade agreements and border security" but did so only privately, according to the Fort Worth Star-Telegram. Sen. Ben Sasse (R-Neb.) mocked Trump's politics and policies during a recent conference call with constituents.

There is obviously no way to confirm Cornyn's "private" misgivings, though if he's telling the truth now, that's an admission that he lied relentlessly in public by overtly supporting all those policies. Sasse appears to be a shoo-in for reelection Tuesday and is setting himself up to run for president in 2024. But the voting records of both senators belie their words; Cornyn voted with Trump 95.2% of the time, and Sasse 86.8% of the time.

One can expect scads of Republicans to proclaim themselves "secret" Trump adversaries if Trump loses his reelection bid and the GOP launches a necessary process of pondering its complicity in his policies.

The proper response to them will be to ignore their claims of covert opposition. As the congressional tracker of Fivethirtyeight.com shows, even the least indulgent Republican in Congress, Sen. Susan Collins of Maine, still voted with him two-thirds of the time. When the House's impeachment articles came before the Senate, only one Republican, Mitt Romney of Utah, voted to convict on any of the articles. Trump prevailed, 53-47.

Many others served Trump openly while keeping their misgivings private. Former Exxon Mobil Chairman Rex Tillerson joined the administration as secretary of State, a post in which he started the hollowing out of the nation's diplomatic corps, while reportedly disdaining Trump, in private, as a "moron."

John F. Kelly served as secretary of Homeland Security and subsequently White House chief of staff while reportedly confiding to associates his appalled reaction to his boss' behavior. These were posts, by the way, in which Kelly showed no compunction about advancing immigration policies of unexampled cruelty.

The moral awakenings of some former administration officials are worthy of suspicion.

Consider the case of Miles Taylor, a former aide to Nielsen who disclosed this week that he was the administration figure who penned an anonymous op-ed in the New York Times asserting that a secret "resistance" comprising moral-minded officials was embedded in the administration, thwarting Trump's most intemperate impulses. He followed the op-ed with a book titled "A Warning."

As it turns out, Taylor appears to have been a willing participant in many of the most egregious policies of family separation instituted under Nielsen. He also participated in the emigration of White House alumni to the high-tech world, joining Google as a policy executive. He's been on leave from the company for more than a month, working as an anti-Trump political pundit.

Nielsen herself, who oversaw the Trump policy of separating immigrant children from their parents at the border until she resigned in April 2019, claimed a few months later that she "spoke truth to power" in fighting some Trump policies from the inside but quit when it became clear that "saying no, and refusing to do it myself was not going to be enough." But she served in her post for some 16 months.

Kelly and Nielsen are both on the blacklist issued by the immigration groups.

It's probable that the end of the Trump administration, whether it occurs in 2021 or 2025, will occasion a national stock-taking, and conceivably an effort to identify and bring to justice the perpetrators of the administration's most egregious violations of law and basic humanity. Absolving them for having merely done their jobs won't close the books on the Trump era. Confronting their actions will.

Some may belong in jail, others merely in halls of shame. Some others, undoubtedly, deserve our sympathy or empathy. But none should be permitted to deny their complicity.

As House Intelligence Committee Chairman Adam B. Schiff (D-Burbank) remarked in addressing the Senate before its impeachment vote, "If you find that the House has proved its case, and still vote to acquit, your name will be tied to his with a cord of steel and for all of history.”

This story originally appeared in Los Angeles Times.