One Government’s Efforts to Dismantle Accountability

The views expressed below are those of the author and do not necessarily reflect those of the Carr-Ryan Center for Human Rights or Harvard Kennedy School. These perspectives have been presented to encourage debate on important public policy challenges.

A note from the author: This commentary was completed before the events that occurred over the weekend, especially the murder of HKS alumna Melissa Hortman, MPA/MC 2018, and her husband Mark; but on this matter I’d urge everyone to watch this conversation about her with former Minnesota State Representative Patrick Garofalo (R).

Eventually amendments such as repealing term limits, abolishing elections, or granting dictatorial powers could undermine democracy.

There is a story about Kurt Gödel, one of the greatest logicians of all time, who apparently figured out how to transform American democracy into an autocracy in entirely legal ways. Gödel had come to the U.S. to escape from Nazi-occupied Austria. When he applied for citizenship in 1947, he had an interview before a judge. Albert Einstein (yes, that Einstein) and the economist Oskar Morgenstern came along. To their surprise he told them on the way that the Constitution did not prevent authoritarian take-overs. The matter came up during the interview, but Einstein and Morgenstern quickly distracted everyone. Gödel did become a citizen and never explained his idea publicly. His discovery is known as “Gödel’s Loophole.” According to one educated guess, what he had in mind was a process of gradually turning the Amendment procedure in Article V on itself, making it increasingly easier to amend the Constitution. Eventually amendments such as repealing term limits, abolishing elections, or granting dictatorial powers could undermine democracy. Short of legally making the U.S. authoritarian, to be sure, the performance of democracy itself can deteriorate. That’s where we are now. In a benchmark survey known as Bright Line Watch, U.S.-based political scientists rate American democracy on a scale from zero (complete dictatorship) to 100 (perfect democracy). Right after Trump's reelection, it got a rating of 67. Several weeks later, that figure had already plummeted to 55. One driver behind this decline seems to be the systematic dismantling of accountability structures, which has also found its way into the tax bill (the One Big Beautiful Bill Act) currently debated in Congress. If this dismantling continues, it might eventually become irrelevant whether autocracy arises legally or illegally: authoritarian rule would finally catch up with Gödel’s new home (where he died in 1978). Given the empirical links between democracy and human rights, what’s bad news for democracy will likely be bad news for human rights. 

Accountability structures are under siege everywhere in the American system. The handcuffing of California Senator Alex Padilla on June 12 at a press conference with Kristi Noem – the Secretary of Homeland Security who weeks into her role understood habeas corpus as a constitutional right the president has to be able to remove people from the country – for trying to ask questions should make us all pause. (For a statement by Governor Gavin Newsom about the situation in his state in broader context, see here.) It is unsettling how much one finds once one starts looking for examples for ways in which accountability is under siege.

It’s hard for a shared public sphere to exist if people inhabit different realities.

We have long been used to the current president’s complaints about the unfairness and lack of professionalism of any critical reporting. Martha Minow recently reminded us of the value of public media (like PBS and NPR), which already play a subordinate role in the U.S. compared to public media, say, in the UK or Germany. People who get all their news on CNN experience a different reality than people who get theirs from Fox (and differences between CNN and Fox are far from exhausting the spectrum). If one looks at the Heritage Foundation’s Mandate for Leadership, also known as Project 2025 (which seems to have considerable influence on the Trump administration and has been called out for its efforts to create an imperial presidency) one finds an outright dismissal of the idea of public media out of fear that the left wing will immediately overrun any such media. It’s hard for a shared public sphere to exist if people inhabit different realities. The resulting contestation of just about everything is bad for accountability.

A major blow specifically to presidential accountability came from the Supreme Court’s judgement in Trump vs. United States on July 1, 2024. The Court ruled that presidents have absolute immunity for acts committed as president within their core constitutional purview, at least presumptive immunity for official acts within the outer perimeter of their official responsibility, and no immunity for unofficial acts. The Court offered such little guidance on the delineation of official acts that presidents can effectively count on immunity for just about anything not glaringly unrelated to presidential responsibilities. Moreover, the presidential power to pardon – including power to issue pardons for acts that people have not yet been accused of – creates far-reaching possibilities of undermining accountability for anyone who does the president’s bidding. Trump started his presidency by issuing such a large number of clemencies that rule-of-law concerns arose immediately. Presidential pardons also create a clientele that remains beholden to the president. Congress is supposed to rein in presidential power, but the Republican Party has turned into a personality cult. Republicans unwilling to go along, such as Liz Cheney or Adam Kinzinger, were forced out. The president’s ongoing references to how he won the election of 2020 make it exceedingly unlikely that anyone will be a Republican member of Congress who as a matter of standard democratic practice accepts the outcome that has been upheld by dozens of courts against challenges made on Trump’s behalf.

Especially non-American observers tend to be shocked when they realize that the far-reaching tax bill that is currently under consideration in Congress is officially called One Big Beautiful Bill Act. This is worth pondering. A bill that is more regressive than any major bill in decades, makes massive cuts to the social safety net, is specifically putting the future of Medicate at risk, and about which an article in the Chronicle of Higher Education on June 11 wondered whether it really could seriously be processed “by adults” is actually officially called One Big Beautiful Bill Act, in deference to the president’s manner of speaking about such matters. And speaking of that Act: As of now, when someone violates a court order, judges may hold them in contempt and issue fines or even jail time as punishment. But there is a provision deep in the One Big Beautiful Bill Act that requires anyone suing the government to pay a bond before the court could use its contempt power to enforce orders. This would put conditions on a federal court’s authority to hold officials in contempt if they violate judicial orders, and thus make it less likely that officials will be held accountable in such cases. (Also see here.)

For some domains of governance, independent agencies exist that are supposed to stand watch over them. They have come under presidential attack, and so far courts have taken no conclusive action to protect them. Moreover, one of the hundreds of legal struggles that are going on to delineate presidential power is about federal efforts to exert more control over federal elections, typically a state responsibility. Some fear that such efforts could lead to disenfranchisement of millions of voters. Such efforts at changing control over federal elections must be seen in the context of all these other efforts to limit accountability. And in fact, President Trump already announced as good news to his voters that in four years’ time they might not have to vote again. That the party of smaller federal government and stronger states rights can allow this to happen is bewildering. (A federal judge for now blocked Trump’s efforts in this domain.)

What about the legal profession? Aren’t they a “profession” because they are beholden to standards that benefit the public and thus should care about upholding standards of accountability that are essential to the rule of law? Early on in his second administration, Trump issued executive orders targeting high-profile law firms. Some firms agreed to his demands, to avoid complications in their affairs, or in order not to lose top talent to competitors. The administration thereby secured pro bono work from top lawyers worth hundreds of millions of dollars. Other firms have sued the administration in response. Several of Trump's executive orders have been ruled unconstitutional by district judges, but the struggle is ongoing.  What is astounding is that not more of these lawyers – who are among the highest-paid professionals in the world – have taken the threat to the rule of law that comes from such activities in the executive branch sufficiently seriously to push back. That is, it is astounding that not more have opted to help make sure legal standards of accountability are not depressed by law firms doing pro bono work for the government at a massive scale to avoid being sanctioned.

But doesn’t a thick layer of governmental functionaries guarantee the continuity of basic state functions and thus of governmental accountability across presidential administrations? In many countries across the world – and so far that list has included the U.S. – a sophisticated group of public servants do indeed make sure “the state” is visible and intelligible to citizens and to foreign powers across democratic governments. On the far right in the U.S., these civil servants have long been known as “the deep state.” Project 2025 especially has intensified concerns about them as obstacles to the executive power of the presidency. As a result, the government now plans to test applicants for federal jobs on their loyalty to Trump’s priorities. That is also where DOGE comes in. Trump established a Department of Government Efficiency (DOGE) that Elon Musk headed for several months. It is unclear just what DOGE has so far accomplished, but there has been good reason all along to fear that buyout offers meant to reduce the federal workforce will drive away workers with greatest expertise, who have the most options to work in the private sector. In the process DOGE also centralized massive amounts of personal data from previously separated sources across the vast reaches of the US government, in ways that with high probability were accompanied by considerable shortfalls in basic security protocols. (Bruce Schneier provided testimony to Congress on these matters in early June.) There is a certain logic to this strong understanding of presidential power, to be fair, and Russ Vought sets it out in Chapter 2 of the Mandate for Leadership. The Constitution, after all, vests executive power in the president, not a state apparatus. But what has been happening with DOGE is a splendid illustration of why it has made sense for previous presidents (Democrat and Republican alike) to organize the executive power in a state apparatus.

Trump accuses Biden and the Democrats of violating certain standards of good governmental conduct whereas it is in fact him who violates them.

Trump has also abandoned the traditional attitude of presidential standoffishness when it comes to law enforcement. Despite his own complaints that Biden weaponized the Justice Department against him, he has deployed this department to go after his political opponents. There is no evidence all for his claim about Biden, to be sure. In fact, Trump’s claims that the Biden administration had weaponized the Justice Department is a typical case of gaslighting as I have defined it elsewhere. Trump accuses Biden and the Democrats of violating certain standards of good governmental conduct whereas it is in fact him who violates them. He thereby creates a moral high ground from which he can shout out his indignation and on which his supporters can rally, forcing opponents to engage in a debate in which their voices just join the cacophony.

Civil society is strong in the U.S., and this is a distinctive feature of American society. Philanthropy is strong, and private foundations and individual giving matter a great deal for all sorts of purposes, including the strengthening of accountability structures across society, for instance in the work of human rights or civil rights NGOs. But here too the current administration tries to make things harder, and this too shows up in the One Big Beautiful Bill. For one thing, the bill is set to increase taxes on philanthropy. What is more alarming, however, is that one proposal under consideration is to empower the treasury secretary, and thus the president, to designate tax-exempt organizations as “terrorist supporting” without having to go through due process (and thereby to deprive them of their tax-exempt status). (Also see here.) But given for instance how loosely this administration has for instance spoken of an “invasion” of LA as a way of characterizing the protests against the ICE activities in the area, one needs to worry rather profoundly about enabling the government to assign such a label without much due process, especially in the fraught context of the Israel/Palestine conflict and American policy vis-à-vis that conflict. Civil society organizations that need to worry about such things might well be less eager in their efforts to hold the government accountable lest there is something in their communications or event set-ups that brings the label “terrorist-supporting” upon them.

As far as accountability at the international level is concerned, the second Trump Administration continues its hostility towards the International Criminal Court. American businesses and individual citizens are banned from providing funds, goods or services to certain blacklisted judges. Any assets these judges hold in the U.S. are frozen. Last month apparently the ICC's chief prosecutor lost access to his emails and saw his bank accounts frozen. It appears these businesses had discontinued services out of fear of being targeted by U.S. authorities for supporting blacklisted persons.

As far as the international domain is concerned, the One Big Beautiful Bill also goes out of its way to try to undermine the spirit of accountability. For one thing, the version passed by the House provides for a 3.5% tax on remittances, money foreigner who work in the U.S. send home. Some countries in Central America might lose up to 1% of GNI this way. This is a tax paid on the otherwise after-tax income of foreign workers who feel a sense of responsibility to their families back home and thereby also do something that is widely recognized as effective development aid. Moreover, section 899 seeks to impose punitive taxes on people, investors, and companies from countries with taxes of which U.S. Congress disapproves, such as the digital services tax that mostly affect American tech giants, or a global minimum corporate tax on undertaxed profits. The result would likely either be to make the U.S. a difficult country for foreigners to invest in or else undermine efforts elsewhere to levy certain taxes intended to make multinationals pay their fair share.

One topic worth mentioning in conclusion is how the One Big Beautiful Bill also hampers accountability in yet another way. As far as Artificial Intelligence is concerned, the U.S. is doing rather little by way of creating regulation or even systematic guidance at the federal level. Instead of empowering experts or negotiating norms, Trump shrinks government agencies and personalized decisions. The version of the bill that passed the House and at the time of this writing remains under consideration would even bar states from regulating artificial intelligence for 10 years. And by the way, climate change, another hugely important issue for the future of humanity, is not a topic for this administration, and appears in the One Big Beautiful Bill Act mostly by way of slashing incentives for green technologies such as solar, wind, batteries, electric cars, and heat pumps.

Corruption has flooded America. The dams are breaking.

President Trump has more than doubled his personal wealth since starting his 2024 election campaign. Billions of foreign dollars have flown into his family’s real estate and crypto ventures. “Corruption has flooded America. The dams are breaking,” as one recent op-ed puts it in this context. (See also here and here.) All these efforts to dismantle accountability structures have the potential to make the America of 2030 dramatically different from the America of 2020. And all this is happening when we actually need to spend our energies on the problems that should really matter, such as, indeed, Artificial Intelligence and climate change. But it should not be surprising that a political culture that dismantles accountability structures does not concern itself much with the future.

Mathias Risse, Faculty Director, Carr-Ryan Center, Harvard Kennedy School