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Analysis

It’s Time to Enact Reforms to Curb Executive Branch Abuses

The Protecting our Democracy Act would help restore checks and balances in the federal government that have degraded.

  • Christine Todd Whitman
  • Preet Bharara
October 21, 2021
U.S. Capitol building
Mike Kline

This piece was origin­ally published in The Hill.

On Septem­ber 21, members of the House of Repres­ent­at­ives rein­tro­duced the Protect­ing Our Demo­cracy Act, a set of reforms to strengthen legal guard­rails against self-deal­ing by govern­ment offi­cials and rein­force protec­tions for the rule of law. Its fixes would help restore checks and balances in the federal govern­ment that have degraded during the past several pres­id­en­tial admin­is­tra­tions, most precip­it­ously under former Pres­id­ent Donald Trump. Forti­fy­ing these safe­guards is essen­tial to revital­iz­ing and strength­en­ing Amer­ican demo­cracy for future gener­a­tions, and to ensur­ing that members of both parties adhere to its core ideas. Congress should pass the bill without delay.

One of the most import­ant things the Protect­ing Our Demo­cracy Act would do is create clear stand­ards for enfor­cing the Consti­tu­tion’s emolu­ments clauses. The Foreign Emolu­ments Clause requires Congress to consent to any federal govern­ment offi­cial receiv­ing a bene­fit from a foreign govern­ment, while the Domestic Emolu­ments Clause prohib­its the pres­id­ent from receiv­ing any personal bene­fit from a U.S. state or local govern­ment.

These provi­sions have been in the Consti­tu­tion since the Found­ing era, but there is no easy way to enforce them in most cases. The Protect­ing Our Demo­cracy Act would estab­lish a broad defin­i­tion of the term “emolu­ment” (includ­ing proceeds from commer­cial trans­ac­tions), prohibit federal offi­cials from receiv­ing foreign emolu­ments of signi­fic­ant value without congres­sional consent, and estab­lish a flat prohib­i­tion on the pres­id­ent receiv­ing most domestic emolu­ments.

Stronger safe­guards like these could have fore­stalled a number of scan­dals in recent decades. For instance, if such a system had been in place during the Trump admin­is­tra­tion, it would have enforced stronger separ­a­tion between the pres­id­ent and his sprawl­ing busi­ness interests — some of which regu­larly dealt with foreign govern­ments and state offi­cials look­ing to influ­ence U.S. policy. These safe­guards could also have preven­ted scan­dals involving members of Congress from both parties doing busi­ness or accept­ing signi­fic­ant travel and other gifts from foreign govern­ments beyond what current law author­izes. By codi­fy­ing the emolu­ments clauses, the bill can help ensure that govern­ment offi­cials put the interests of the Amer­ican people first over their own enrich­ment.

Another crucial set of reforms in the bill would estab­lish guard­rails to stave off polit­ical inter­fer­ence in law enforce­ment. The Protect­ing Our Demo­cracy Act would shield agency inspect­ors general from polit­ical pres­sure. It would also codify and expand the long­stand­ing exec­ut­ive branch prac­tice of limit­ing who in the White House may contact the Depart­ment of Justice about specific law enforce­ment matters and require those commu­nic­a­tions to be logged. And, the bill requires trans­par­ency about certain contro­ver­sial pardons, which would increase account­ab­il­ity and likely deter abuse of the pardon power.

These protec­tions would have helped blunt the Trump admin­is­tra­tion’s attempts to inter­fere in sens­it­ive Justice Depart­ment matters, includ­ing the pres­id­ent’s effort to enlist the depart­ment in over­turn­ing the result of the 2020 elec­tion. They could have also helped address troub­ling incid­ents in prior admin­is­tra­tions, such as the George W. Bush admin­is­tra­tion’s drastic expan­sion of the number of polit­ical person­nel permit­ted to contact the Depart­ment of Justice and politi­cized firings of U.S. attor­neys, the ill-advised meet­ing between Pres­id­ent Barack Obama’s Attor­ney General Loretta Lynch and former Pres­id­ent Bill Clin­ton while the FBI was invest­ig­at­ing Secret­ary of State Hillary Clin­ton’s use of a private email server, and Pres­id­ent Clin­ton’s contro­ver­sial pardons — includ­ing of his own brother.

To be sure, the Protect­ing Our Demo­cracy Act does­n’t address every abuse of power or viol­a­tion of the norms that uphold Amer­ican demo­cracy.

We stud­ied these prob­lems as co-chairs of the National Task Force on Rule of Law & Demo­cracy, convened by the Bren­nan Center for Justice at NYU Law.

Another crit­ical issue we iden­ti­fied is the vulner­ab­il­ity of govern­ment science to increas­ing polit­ical inter­fer­ence, which contrib­uted greatly to the federal govern­ment’s flawed response to the COVID-19 pandemic. A separ­ate bill, the Scientific Integ­rity Act, would create safe­guards to ameli­or­ate these prob­lems. Of course, we also need broader federal demo­cracy and ethics reforms such as those the House passed last March in H.R. 1, the For the People Act.

But the Protect­ing Our Demo­cracy Act is a crucial piece of the puzzle. It would help restore the public’s trust in the exec­ut­ive branch, and in our govern­ment more broadly. By rein­ing in abuses at the federal level, it would also send a strong message to states that trans­par­ency and ethical conduct must be corner­stones of demo­cracy in the United States.

In the past, crises and scan­dals have forced us to assess what we need to do to make our system of govern­ment stronger and to insti­tute reforms so that the abuses that have been commit­ted never happen again. Now too is a time to act. The Protect­ing Our Demo­cracy Act is a key step towards a more account­able govern­ment, and Congress should pass it now.

Preet Bhar­ara is the former U.S. Attor­ney for the South­ern District of New York. Christine Todd Whit­man, pres­id­ent of the Whit­man Strategy Group, was admin­is­trator of the Envir­on­mental Protec­tion Agency and governor of New Jersey. Both are co-chairs of the National Task Force on Rule of Law and Demo­cracy housed at the Bren­nan Center for Justice.