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Analysis

Permanently Stopping Abuse of Power in the Executive Branch

Recent abuses demonstrate the need for long-term solutions to restore the rule of law.

July 23, 2021

Pres­id­ent Biden came into office six months ago on a prom­ise to strengthen demo­cratic insti­tu­tions. Since then, his admin­is­tra­tion has taken several crit­ical steps to revital­ize norms that success­fully guided many past admin­is­tra­tions, but there is much more work to be done.

Repeated abuse of exec­ut­ive power, govern­ment offi­cials’ uneth­ical conduct, and politi­ciz­a­tion of govern­ment func­tions have eroded public trust. A core tenet of our demo­cracy — that no one is above the law — must be restored. Fortu­nately, a pres­id­en­tial admin­is­tra­tion dedic­ated to account­ab­il­ity can do much to rebuild confid­ence and check abuses of power.

On his first day in office, Biden issued an exec­ut­ive order requir­ing an enforce­able ethics pledge from all exec­ut­ive branch appointees that experts have praised for address­ing gaps left by the Obama and Trump admin­is­tra­tions. Biden also returned to pre-Trump norms by volun­tar­ily disclos­ing his tax returns and prom­ising that none of his family members would “be involved in any govern­ment under­tak­ing or foreign policy.”

Further, Biden issued a memor­andum laying out stand­ards and proced­ures to safe­guard against the politi­ciz­a­tion of scientific research at govern­ment agen­cies. The deeply flawed initial response to the Covid-19 pandemic demon­strated the crit­ical import­ance of protect­ing scientific integ­rity in the federal govern­ment. The memo also directs agen­cies to ensure that science advis­ory commit­tees func­tion prop­erly to provide expert advice to poli­cy­makers. And the Biden admin­is­tra­tion has organ­ized a govern­ment-wide Scientific Integ­rity Task Force.

This past week, the White House Coun­sel’s Office and the Depart­ment of Justice publicly issued policies limit­ing contacts between the White House and DOJ. This was a crit­ical step, in line with similar action taken by every pres­id­ent since Gerald Ford to insu­late DOJ from undue polit­ical inter­fer­ence. The depart­ment’s insu­la­tion from polit­ics was badly damaged through­out the Trump admin­is­tra­tion, from improper White House commu­nic­a­tions during the Russia invest­ig­a­tion to Pres­id­ent Trump’s repeated contacts with DOJ offi­cials in his effort to subvert the result of the 2020 elec­tion. The White House memo is impress­ive in scope, applic­able not only to the Justice Depart­ment DOJ but to a broader range of agen­cies within the exec­ut­ive branch.

Despite these prom­ising devel­op­ments, there is still much more to do. Most urgently, the Biden admin­is­tra­tion needs to take addi­tional action to restore the integ­rity of the rule of law. With trust in govern­ment near a historic low, now is the time for Biden to leave a last­ing mark on the pres­id­ency and insti­tute struc­tural change to ensure that the govern­ment serves the public interest for gener­a­tions to come. Key next steps should include deter­ring abuses of the pardon power and ensur­ing that inde­pend­ent exec­ut­ive branch watch­dogs have the power to take on miscon­duct. These exec­ut­ive actions are import­ant, and they should be codi­fied by stat­ute as well.

Biden should recom­mit to using the pardon power as a means to uphold, rather than subvert, the rule of law by insti­tut­ing a proced­ure to enhance the trans­par­ency of the clem­ency process. Although abuse of the pardon power was a hall­mark of the previ­ous admin­is­tra­tion, pres­id­ents on both sides of the aisle have misused this author­ity. For example, Pres­id­ent Bill Clin­ton pardoned finan­cier Marc Rich, whose family had made signi­fic­ant contri­bu­tions to the Clin­ton library. Pres­id­ent George W. Bush commuted the prison sentence of Vice Pres­id­ent Dick Cheney’s chief of staff Scooter Libby, and Pres­id­ent Trump pardoned several former advisers and poten­tial witnesses in invest­ig­a­tions in which he was implic­ated.

And further, Pres­id­ent Biden should follow through on the commit­ment he made as a candid­ate to protect inspect­ors general from polit­ical pres­sure. His admin­is­tra­tion has yet to take formal steps to ensure that these govern­ment watch­dogs can perform their import­ant role in hold­ing govern­ment offi­cials account­able and stop­ping abuse. This is partic­u­larly press­ing in light of Pres­id­ent Trump’s attacks on and removal of several inspect­ors general in appar­ent retali­ation for their scru­tiny of alleged miscon­duct.

However, exec­ut­ive actions are not enough, because they can be reversed by the next pres­id­ent. To truly have a last­ing legacy, Pres­id­ent Biden must work with Congress to pass legis­la­tion to strengthen Amer­ican demo­cracy, shore up the rule of law, and prevent less scru­pu­lous successors from circum­vent­ing common­sense protec­tions. One of the most crit­ical legis­lat­ive prior­it­ies right now is the For the People Act, which would blunt the wave of voter suppres­sion fueled by Trump’s Big Lie that the 2020 elec­tion was stolen and take other steps to shore up our demo­cracy. While less publi­cized, the bill also contains crit­ical reforms to strengthen ethics laws, includ­ing by requir­ing the pres­id­ent and vice pres­id­ent to disclose their tax returns and adhere to the same conflict of interest laws as other exec­ut­ive branch offi­cials, as well as by strength­en­ing exec­ut­ive branch ethics enforce­ment over­all.

Other key legis­la­tion includes the Scientific Integ­rity Act, which would create legal guard­rails to prevent the politi­ciz­a­tion of science in the federal govern­ment, as well as the Protect­ing Our Demo­cracy Act, omni­bus govern­ment reform legis­la­tion that would safe­guard the rule of law by, among other things, regu­lat­ing contacts between the White House and the Justice Depart­ment, increas­ing trans­par­ency for some contro­ver­sial pardons, and codi­fy­ing the Emolu­ments Clauses.

Biden is the first pres­id­ent in half a century to have spent decades in Congress and, as such, is uniquely posi­tioned to under­stand the import­ance of checks and balances between the two elec­ted branches, partic­u­larly the need to limit abuse of exec­ut­ive power. Now is the time for him to work with Congress to restore and revital­ize the bedrock prin­ciples of demo­crat­ic­ally account­able govern­ment.