Trump-era lawlessness must be prosecuted. Our new group is working to end the impunity | Kenneth Roth

The Democrats’ midterm victory was resounding, but it will not be enough to re-establish the rule of law in the United States.The basic principle that even the president and his officials and cronies are subject to the law has been profoundly undermined by Donald Trump through unchecked ICE violence, apparently large-scale official corruption, and frequent defiance of the law.Democratic-run congressional committees can investigate and expose lawlessness but cannot prosecute the criminality they uncover. More is needed.Many people equate democracy with elections, but they are not enough. A president can be elected, his policies can be publicized by the media and debated by the public, his legislative proposals can require the assent of a majority of lawmakers, but if the president holds himself above the law, a nation ceases to be a democracy. That is what has been at stake in Trump’s second term.The American system delegates many of the responsibilities for upholding the rule of law to an independent judiciary. If a president violates our rights, we can file a civil suit in court and hope a judge orders the president to stop.But if the president or his allies engage in criminality, the American system has a built-in weakness. Some countries empower prosecutors to be independent, akin to a judge. But in the United States, the prosecutor for any federal crime is an employee of the Department of Justice. It is headed by the attorney general, who is nominated by and serves at the pleasure of the president.In other words, the president can decide which criminal conduct in his administration will be prosecuted – and which will not.Because the president’s ability to control the Department of Justice could put him and his friends above the law, presidents traditionally have exercised that power with restraint. While setting broad priorities, most presidents deferred to the judgment of their attorney general. But not Trump.Trump has weaponized his justice department, pursuing his perceived political enemies while neglecting crimes by his allies, who have often enjoyed effective impunity. They have little to fear from Trump’s politicized prosecutors.The result has been increasingly brazen behavior – seemingly corrupt deals that few past officials would have dared to make, and arbitrary violence by ICE and others that is excused rather than investigated.The Rule of Law Project, a new civic group of which I am a founding board member, seeks to end that impunity. We are hiring former federal prosecutors and FBI agents to investigate allegations of corruption and abuse by government officials and their accomplices that the current justice department is ignoring.We have attracted an extraordinary set of past public servants. Many have served in the justice department, which has been decimated in the second Trump administration. We don’t know their political views and haven’t asked. What we know is that they are eager to continue their work in a different capacity.The Rule of Law Project operates from the premise that criminal cases are more likely to be pursued if a prosecutor can be handed a case file that is largely ready for action. We will do the legwork of interviewing witnesses, collecting documents, and analyzing the results, with the aim of putting cases together while the evidence is fresh.We won’t have subpoena power, wiretaps, or a grand jury, but many cases can be built with witnesses who voluntarily cooperate. Indeed, in the most sensitive cases, cooperating witnesses are essential.Until we have a president and attorney general who believe in the rule of law, we plan to present these ready-made cases to state and local prosecutors, who are not subject to federal control. Many would like to uphold the law but lack the investigative resources to take on these cases on their own.I have seen the power of such investigations in my global work. For the mass atrocities under Syria’s former president Bashar al-Assad, for example, the international criminal court did not have jurisdiction, and Syrian prosecutors took instructions from the dictator.The only option was national courts around the world exercising what is known as universal jurisdiction. But a typical prosecutor there would have no clue about how to prosecute torture, executions, or forced disappearances in Syria, let alone the resources to advance such a case.That’s why, with the encouragement of Human Rights Watch, the UN general assembly established the International, Impartial and Independent Mechanism (IIIM) for Syria. A similar mechanism has been established to address atrocities by the military junta in Myanmar.The IIIM, based in Geneva, is essentially a prosecutorial team without a court. They have no capacity to bring prosecutions, but they prepare them. That way, when an abusive Syrian official shows up in a national jurisdiction, local prosecutors have a place to turn for the evidence they need.That happened in the German city of Koblenz, where a former Syrian intelligence officer was convicted of crimes against humanity for overseeing a detention facility where torture was pervasive. He was sentenced to life in prison. The IIIM has contributed to 269 distinct investigations and prosecutions in 16 different jurisdictions, including in France, Germany, Sweden, the Netherlands and the United States.The Rule of Law Project will play a similar role in the United States. It will develop the prosecution-ready cases that make it harder for available prosecutors to say they are too busy to take on Trump officials’ illegality.The project will also make it harder to look forward, not back, as Barack Obama erroneously did with respect to the torture and abuse of the George W Bush administration’s “war on terrorism”. In May 2009, I met with Obama to make the case that the failure to hold perpetrators accountable would lead to future abuses. He thought it would be too divisive.Sadly, that precedent of impunity is contributing to Trump’s lawlessness today, such as the summary execution of people in alleged drug boats that he has ordered in the Caribbean and eastern Pacific.This is not a vindictive exercise. The project seeks not to even scores but to uphold the law. It will apply an “ordinary times” test – what would a prosecutor do, regardless of the party holding the White House, if they simply analyzed the facts and applied the law free of the politicized limitations of the Trump administration?What if Trump pardons the culpable before he steps down? That is unlikely to save his accomplices, because the president’s pardon power does not extend to state crimes. Much of the criminality that merits investigation can be characterized as an offense under either federal or state law.It is extraordinary that the United States needs a group like the Rule of Law Project. But these are extraordinary, even unprecedented, times.To salvage America’s democracy, it is not enough to vote out corrupt and abusive officials. They should also be prosecuted to re-establish the rule of law.We cannot count on the federal government under Trump to perform this role. We as citizens must take it on. Kenneth Roth is a Guardian US columnist, a senior fellow at Yale University and a former executive director of Human Rights Watch. He is the author of Righting Wrongs: Three Decades on the Front Lines Battling Abusive Governments