On a recent episode of Amicus, Dahlia Lithwick spoke with Rep. Katie Porter about the need for laws to shore up toppled norms in the wake of President Donald Trump—even if the new president seems to be playing by the rules. Their conversation was part of a virtual event put on by Citizens for Responsibility and Ethics in Washington, and has been edited and condensed for clarity.
Dahlia Lithwick: There’s a pair of cliches that more or less guided us for the past four years of the Trump era. One, norms aren’t laws. We thought they were enforceable, but they were always just soft norms. The second was that sometimes even when you have laws, they cannot be enforced against people who simply believe that the law doesn’t affect them. Let’s set the table about some of the key weaknesses you identified in the Trump era ethics and accountability systems, the areas where laws and norms utterly failed the American people just at the moments we needed them most.
Katie Porter: Before I came to Congress, I was a consumer protection advocate, I was a law professor, and I took on this big role of trying to help make sure that the big banks, which had signed a binding legal agreement promising to change their practices, actually were doing that in real people’s lives. So, I’ve always been really interested in the gap between what we think is the law or what the law says and then what’s really happening.
That gap and the recognition that that gap is real is a lot of where the really important work that CREW does exists. People think there should be a law: “What? That’s legal?” they say. “How can that be?” But there are a lot of those gaps, and there are lots of different ways to close those gaps, whether it’s through strengthening norms or creating enforceable law.
I was privileged to be selected to join the Committee on Oversight and Reform. This is Congress’ main investigative body, so it’s where we do a lot of the thinking about where are these gaps. Maybe the law doesn’t say it’s illegal, but we need to do an investigation to understand what happened and then decide if we need to make a law to address that. So I really, really like that perspective of being able to do that investigatory work and say, “I’m not saying this is illegal. I’m saying, ‘Did you do it?’ ” And then that opens up the debate to citizens who care about responsibility and ethics to advocate for a law change.
Look, I don’t want to spend our time to talk all about the things that President Trump did to put his own personal and political interests ahead of the national interest. I think the important takeaway here is that before President Trump engaged in some of that conduct, I think a lot of us had a sense that that wasn’t what presidents did. You just can’t do that. That’s not a thing. You can’t have campaign rallies on the White House lawn. You can’t engage in this kind of targeting of political opponents in your official capacity as president, foreign interference in our elections. It was a bipartisan “we don’t want it” kind of thing.
One of the hardest things to have to explain to my constituents was that many of the things that President Trump did—not all of them, but many of them—were not against the technical law, but they violated long-standing norms that really go back to our Founding Fathers. If there was a loophole, he went right through it and made it bigger as he passed through.
So now what we have to do is the hard work of trying to rebuild the trust in government that was lost as President Trump pushed at and reshaped those norms. Some of that is going to mean that we’re going to have to move from a norm framework to a law framework, for at least some of the things that he did, because it’s not enough to say anymore, “Nobody would ever do that.” We’ve seen someone do that. We need to put our country on very clear established ground that X, Y, and Z are not just wrong, but they are illegal, because that will allow us to address these kinds of behaviors in a less partisan way. One of the problems with norms is it becomes, well, you don’t like that, but it’s not illegal, so you’re just pushing your viewpoint. Laws are laws. We set them out for a reason, and then we’re able to enforce them, hopefully in a more evenhanded way.
We can’t just reset norms overnight. We have to reset the laws. And that we can do relatively quickly if we can get the bipartisan agreement about what we want our democracy and its boundaries to look like.
There’s such a strong temptation to say, “Look, those abuses were so flagrant”—using the White House as a prop for political rallies, hocking your merchandise from the podium during a briefing, having folks stay at your hotel and pay astronomical prices for access. Those were so flagrant that can’t we just agree that we’ve now snapped back? The Biden administration is not performing flagrant violations of those norms. Maybe we can all just exhale and say, “Let’s move on to other pressing issues and understand this was a one-off. This was somebody who by design violated norms and surrounded himself with that culture.” But is this an ongoing pressing problem?
No, I don’t think we can just say, “Oh, well, this president did these things. Nobody will ever do it again. We all now understand it’s wrong.” I think this is actually crucial to what it means to be a democracy and to be a country governed by rule of law. The problem with, for instance, dictatorship and benevolent dictatorships is sometimes you get one who’s not benevolent. He or she may be deposed from power and the next person who comes along may have a different set of norms, but that is an unstable system. So the goal of a democracy is to create guardrails that allow for political differences of opinion, for different people with different viewpoints to come into power, but never to be able to shape the system, the rule of law around them.
So as relieved as we all are to see a president who is talking about the importance of being ethical, who is following a lot of the long-standing norms, I think it’s really important for the future of our democracy and for the United States’ ability to lead on democracy issues around the world for us to step up and, to an extent, hold ourselves accountable and say, “Not everybody we elect follows the norms that we thought they would.” And that happens in other countries, and when it does, we push them to strengthen their laws, to root out corruption, to prevent that kind of abuse. We have to do the same thing here.
You talked about the ways in which we need to bolster laws so that they’re laws, not norms. One of the things we did see in the last four years is that the courts are slow and ponderous and you can spend years in litigation and not get quick results in exigent times. I think the other check is meant to be congressional oversight, but congressional oversight has been really whittled down to mean we have to have an impeachment because we just don’t have all the other tools of congressional oversight. And this is not the last four years; this has been an ongoing erosion of congressional authority and power. What do we need to do to bolster Congress’ oversight power?
This was part of what we saw with Watergate, which was that the investigations were difficult. They took a long time. It’s very typical, after these kinds of scandals—go back to Teapot Dome or whatever they are—for Congress to say, “OK, we didn’t like what we saw. We tried to communicate that. We asked a lot of questions. We did or did not necessarily get the practice in check. And now it’s time for us to go back and write the law.” But nothing about codifying some of these norms into law will ever or should ever reduce the importance of congressional oversight. Oversight absolutely is an incredibly important part of this, and it’s not just about holding people accountable, but it’s about that fact finding.
Now, one of the things we saw in the Trump administration was the real limits of the subpoena power of Congress. I think that is something that we are collectively, as a body, led by folks like Jamie Raskin and others, really grappling with. What does it mean to say that Congress has subpoena power, if in fact, we don’t have any tools to enforce the subpoenas and officials can just ignore them with impunity? That was a real problem, and I think we haven’t come to exactly what the right set of solutions is for that.
Oversight, it should be breaking news. It should be happening in real time. It should not be the History Channel. Too often, what we’re seeing is after the fact, Gee, well, that money didn’t go where we thought it was going to go. Gee, some people took advantage of those programs and abused them, or even broke the law. We have to get better at doing that oversight in real time, rather than saying, “What are the lessons of this crisis for the next crisis?”
There was a congressional oversight commission that was passed as part of the CARES Act. That sounds so badass: congressional oversight commission. Guess what? It has never had a chair, therefore it has never had staff. Therefore, the most work it’s been able to do is for a few well-meaning members to tweet things. That’s not oversight. That’s pretend oversight. And I think it’s particularly dangerous to the mission of rebuilding trust in government to have this fake oversight where you say you have a commission, but actually you don’t have a commission. You say that you have inspector generals, but in fact 15 of those offices are vacant; many of them are filled by political appointees with conflicts of interest. You say you’re going to have a pandemic response accountability committee, but the president is allowed to interfere with it and shape it in a particular way.
We really need to be much more thoughtful about building the capacity to do meaningful oversight by Congress into each and every policy that we enact. What is the built-in accountability mechanism? Who will be responsible for answering for this program? That is something we could use some improvement with in terms of not just after the fact saying that somebody should do a hearing about this, but instead building in the oversight right into the structure of the law.
To hear their entire discussion, as well as a rundown from Mark Joseph Stern of what blockbuster decisions are yet to come from the Supreme Court, listen below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, Stitcher, Google Play, or wherever you get your podcasts.