Transparency Without Accountability is Worse than Opacity (Stone/Barr/Trump edition)
by Michael C. Dorf
The call by over two thousand Justice Department alumni for Attorney General William Barr to resign over his handling of the Roger Stone sentencing recommendation provides an occasion for reflecting on a side issue that has emerged in this and other scandals of the Trump administration. One former DOJ official who has not joined the call for Barr's resignation is his former deputy, George Terwilliger, who was interviewed last week on NPR. In addition to defending Barr, Terwilliger expressed some mild criticism of the president's tweeting, but then pivoted to offer a silver lining. He said:
Is that right? If the president is improperly influencing DOJ prosecutions for political ends and otherwise befouling our national discourse, does the resulting transparency provide some offsetting compensation? The short answer is no.
To understand why not, one must understand the value of transparency, which is contextual. In a system that holds people accountable for their bad acts, transparency promotes accountability and thus prevents and remedies bad acts. That is what Louis Brandeis had in mind when he wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." The idea is that, knowing that there will be accountability for corrupt or other bad acts, bad actors will be deterred.
But what happens when bad actors publicly engage in bad acts and pay no price? In such circumstances, transparency does not deter. On the contrary, as we see in the purges following the Senate's "acquittal" of Trump after a non-trial--and as everyone other than Susan Collins expected--that when a bad actor faces no adverse consequences for his bad acts even after they are exposed, he draws the logical inference that he can continue to get away with and thus will commit additional bad acts.
Transparency without accountability is not merely useless. It is downright harmful in two ways.
First, the lack of accountability signals to the bad actor that he can continue the bad acts. If you're stealing office supplies and haven't yet been caught, you will be cautious, stealing only when no one is looking, say. But if one day the boss sees you loading toner cartridges and legal pads into the back of your car and just smiles and waves, you will become more brazen. Transparency without accountability affirmatively reinforces bad acts.
Second, transparency without accountability can be used as a means of issuing not-so-subtle threats. Let's say the mob boss in some region is worried about the possibility that he might get caught. He might still order a hit, but he will need to be careful to maintain deniability. If it's obvious that he ordered the hit, then he risks being caught and prosecuted. However, if we imagine a society without effective law enforcement, the mob boss will want it widely known that he ordered the hit, because that widespread knowledge will enforce his power. After he publicly--that is to say, transparently--orders the killing of a few rivals and deadbeats, no one else will dare to challenge him or fail to pay the tribute he has extorted.
As with office supply embezzlers and mob bosses, so with our execrable president. He persists in his foul deeds because his Republican enablers exact no price for them, and he does so publicly--as in the ceremonial frog-marching of Gordon Sondland and the Lieutenant Colonels Vindman--as a warning to those who might cross him. Transparency exacerbates rather than mitigates Trump's awfulness.
The call by over two thousand Justice Department alumni for Attorney General William Barr to resign over his handling of the Roger Stone sentencing recommendation provides an occasion for reflecting on a side issue that has emerged in this and other scandals of the Trump administration. One former DOJ official who has not joined the call for Barr's resignation is his former deputy, George Terwilliger, who was interviewed last week on NPR. In addition to defending Barr, Terwilliger expressed some mild criticism of the president's tweeting, but then pivoted to offer a silver lining. He said:
I would agree that it would perhaps be better if the president didn't tweet about matters of this nature that are before the Justice Department. But on the other hand, there is a level of transparency as to his position that might not otherwise be seen.In response to a follow-up question, Terwilliger repeated the claim, stating that "there's a certain level of transparency to the public that's there. This isn't some Nixonian, behind-the-scenes improper influence."
Is that right? If the president is improperly influencing DOJ prosecutions for political ends and otherwise befouling our national discourse, does the resulting transparency provide some offsetting compensation? The short answer is no.
To understand why not, one must understand the value of transparency, which is contextual. In a system that holds people accountable for their bad acts, transparency promotes accountability and thus prevents and remedies bad acts. That is what Louis Brandeis had in mind when he wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." The idea is that, knowing that there will be accountability for corrupt or other bad acts, bad actors will be deterred.
But what happens when bad actors publicly engage in bad acts and pay no price? In such circumstances, transparency does not deter. On the contrary, as we see in the purges following the Senate's "acquittal" of Trump after a non-trial--and as everyone other than Susan Collins expected--that when a bad actor faces no adverse consequences for his bad acts even after they are exposed, he draws the logical inference that he can continue to get away with and thus will commit additional bad acts.
Transparency without accountability is not merely useless. It is downright harmful in two ways.
First, the lack of accountability signals to the bad actor that he can continue the bad acts. If you're stealing office supplies and haven't yet been caught, you will be cautious, stealing only when no one is looking, say. But if one day the boss sees you loading toner cartridges and legal pads into the back of your car and just smiles and waves, you will become more brazen. Transparency without accountability affirmatively reinforces bad acts.
Second, transparency without accountability can be used as a means of issuing not-so-subtle threats. Let's say the mob boss in some region is worried about the possibility that he might get caught. He might still order a hit, but he will need to be careful to maintain deniability. If it's obvious that he ordered the hit, then he risks being caught and prosecuted. However, if we imagine a society without effective law enforcement, the mob boss will want it widely known that he ordered the hit, because that widespread knowledge will enforce his power. After he publicly--that is to say, transparently--orders the killing of a few rivals and deadbeats, no one else will dare to challenge him or fail to pay the tribute he has extorted.
As with office supply embezzlers and mob bosses, so with our execrable president. He persists in his foul deeds because his Republican enablers exact no price for them, and he does so publicly--as in the ceremonial frog-marching of Gordon Sondland and the Lieutenant Colonels Vindman--as a warning to those who might cross him. Transparency exacerbates rather than mitigates Trump's awfulness.