‘It’s called transparency’ works for Trump on TV, not so much on campaign finance

In what became a televised face-off, President TrumpDonald John TrumpTrump mocks wind power: 'When the wind doesn't blow, just turn off the television' Pentagon investigator probing whether acting chief boosted former employer Boeing Trump blasts McCain, bemoans not getting 'thank you' for funeral MORE recently gave Democratic leaders an ultimatum that has become all-too-common in American politics: Either give me what I want (here, $5 billion in taxpayer dollars for a U.S.-Mexico border wall) or I’ll shut down the government.

For many reasons, politicians’ habit of using federal workers and their families as the ultimate leverage in policy brawls is deplorable. But this time, Trump’s tactic did the unexpected: It cast a ray or two of sunshine in what’s undeniably a very dark era for American democracy.

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After nearly 20 minutes of sparring with House and Senate Minority Leaders Nancy PelosiNancy Patricia D'Alesandro PelosiRisk-averse Republicans are failing the republic The Hill's Morning Report - Trump, Dems put manufacturing sector in 2020 spotlight Trump, Saturday Night Live and why autocrats can't take a joke MORE (D-Calif.) and Chuck SchumerCharles (Chuck) Ellis SchumerGOP senator: Trump's criticism of McCain 'deplorable' Schumer to introduce bill naming Senate office building after McCain amid Trump uproar Why we need to build gateway now MORE (D-N.Y.) in the Oval Office, Trump made the politically-fraught commitment that if the federal government shuts down for lack of an agreement, the buck will stop with him. “I am proud to shut down the government for border security,” he said. “So I will take the mantle. I will be the one to shut it down. I won’t blame you for it.” 

There you have it: Trump publicly taking accountability for something he is accountable for. Gasp. 

But there’s more. Unaware that the press was invited, Pelosi and Schumer both asked that the debate continue in private. “We came in here in good faith, and we’re entering into a — this kind of a discussion in the public view,” Pelosi stated.

As a matter of democratic governance, Trump’s response — uncharacteristically — was spot on. “But it’s not bad, Nancy. It’s called transparency.”

Yes, Mr. President. James Madison wrote in 1788 that the “road to the decision of the people ought to be marked out and kept open.” One of the strongest values running through American government and American public law is transparency.

Although transparency is not articulated explicitly in the Constitution, it may as well be:

  • Article I requires that the House and Senate keep and publish journals of their proceedings, record certain votes and publish information regarding appropriations.
  • Article II mandates that the president “from time to time give to the Congress Information of the State of the Union.”
  • The First Amendment has been construed to protect “the right to receive information and ideas.”
  • The Sixth Amendment makes criminal trials open to the public.

Beyond the Constitution, Congress designed numerous federal statutes specifically to ensure a transparent government. The Freedom of Information Act empowers regular citizens to request information about what federal government agencies are up to, the Administrative Procedure Act requires that federal agencies put lots of information in the public record, and the Government in the Sunshine Act makes certain agency committee meetings open to the public. Candidates for federal office have to disclose detailed data about their finances and other matters related to conflicts of interest, and thousands of federal employees undergo highly personal background checks to obtain their jobs. 

As elected officials, the president and members of Congress don’t have to contend with FBI probes as a precondition to holding office, unlike Supreme Court nominees and other White House appointees. We simply assume that other means of getting candidate-related information to the public — including a free press — create an electoral system in which the good and the ugly will be made known to voters before ballots are cast. If that system breaks down, there must be consequences.

Trump’s heralding of transparency on Tuesday, therefore, is exceedingly ironic. Consider the repeated claims by Trump and congressional Republicans that violations of campaign finance laws aren’t a big deal. (“I don’t care” if the president of the United States committed a crime that kept voters in the dark, quipped Utah Sen. Orrin HatchOrrin Grant HatchNY's political prosecution of Manafort should scare us all Congress must break its addiction to unjust tax extenders The FDA crackdown on dietary supplements is inadequate MORE).

In the sentencing of Trump’s longtime attorney, Michael Cohen, federal prosecutors gave an elegant answer to Hatch’s nonchalance — and it’s precisely why the widespread lies and the deception around Russian infiltration of the 2016 presidential electoral process are so corrosive to democracy. 

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On page 25 of a criminal sentencing memo, prosecutors wrote, “Cohen’s commission of two campaign finance crimes on the eve of the 2016 election for President of the United States struck a blow to one of the core goals of the federal campaign laws: transparency.”

“While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows,” the prosecutors added. “He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual-1 (aka Trump).”

And they concluded, “In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.”

The memo thus makes plain that Cohen isn’t the only person who deceived the voting public. Trump did too. We’ve all heard the mantras. Sunshine is the best disinfectant; democracy dies in the dark. Every American — of whatever political stripe — must now take heed if our democracy is to survive.

Kim Wehle is a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Her forthcoming book is “How to Read the Constitution and Why,” available spring of 2019. Follow her on Twitter at @kim_wehle.