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Analysis

Restoring the Rule of Law

Congress should pass the Protecting Our Democracy Act, which is designed to improve checks and balances by curbing presidential power.

The United States flag flying in front of the Capitol building.
narvikk

This origin­ally appeared in the Fulcrum

From inap­pro­pri­ate contacts with the Depart­ment of Justice to polit­ic­ally motiv­ated pardons to the pres­id­ent’s refusal to separ­ate himself from his busi­nesses, one of the most troub­ling hall­marks of the Trump admin­is­tra­tion was disreg­ard for long-estab­lished guard­rails designed to ensure that the govern­ment serves the public interest in an even-handed manner.

And while Trump-era excesses were unique, it must be acknow­ledged that prior admin­is­tra­tions also commit­ted seri­ous abuses. Given what our nation has just exper­i­enced, shor­ing up safe­guards for the rule of law and ethical govern­ment are a crit­ical prior­ity.

Legis­la­tion that we expect will soon start moving through the House, known as the Protect­ing Our Demo­cracy Act, is an import­ant first step in this regard. Among its most import­ant provi­sions, the bill would improve enforce­ment of the emolu­ments clauses of the Consti­tu­tion, prevent abuse of the pres­id­ent’s pardon powers, insu­late the Justice Depart­ment from polit­ical inter­fer­ence and protect the inde­pend­ence of inspect­ors general.

Donald Trump refused to divest from his busi­nesses after becom­ing pres­id­ent. And several, like his Wash­ing­ton hotel, became ready-made aven­ues for both foreign govern­ments and domestic polit­ical allies to curry favor with his admin­is­tra­tion.

While this did not viol­ate federal conflict of interest rules, which exempt the pres­id­ent, it argu­ably did viol­ate both the foreign and domestic emolu­ments clauses, consti­tu­tional provi­sions that bar the pres­id­ent — and in the case of foreign emolu­ments, all federal offi­cials — from accept­ing bene­fits from foreign govern­ments and indi­vidual U.S. states.

The pres­id­ent was sued repeatedly to enforce these safe­guards, but these suits faced signi­fic­ant proced­ural hurdles. This is because the Consti­tu­tion is silent about how to enforce these clauses and, except in limited circum­stances, Congress has not enacted legis­la­tion to imple­ment or inter­pret them.

The legis­la­tion would define what consti­tute unlaw­ful bene­fits under the emolu­ments clauses and lay out the process for Congress to pursue viol­a­tions. It would also require disclos­ure of emolu­ments and give the Office of Govern­ment Ethics and the Office of Special Coun­sel power to enforce this legis­la­tion.

Trump routinely used the pres­id­ent’s pardon power to subvert the rule of law, grant­ing clem­ency to personal and polit­ical cronies, war crim­in­als, corrupt politi­cians and a repeat civil rights viol­ator. Other pres­id­ents also abused the pardon power, notably the first Pres­id­ent George Bush, who pardoned members of the Reagan admin­is­tra­tion for their involve­ment in the Iran-Contra scan­dal, and Pres­id­ent Bill Clin­ton, who pardoned his own brother and one of his big polit­ical donors.

The bill begins to address this prob­lem by requir­ing trans­par­ency for pardons of family members — although Jared Kush­ner’s father, whom Trump pardoned, would not meet the stat­utory defin­i­tion employed here — and for others who commit certain offenses related to obstruc­tion of justice. It would also extend crim­inal liab­il­ity, includ­ing to the pres­id­ent and vice pres­id­ent, for bribery asso­ci­ated with acts of clem­ency. Finally, it would inval­id­ate self-pardons.

But the bill should go further to deter and expose contro­ver­sial acts of clem­ency beyond those involving just the pres­id­ent or their family members. At a minimum, Congress should require trans­par­ency for acts of clem­ency where the recip­i­ent has a close rela­tion­ship to the pres­id­ent, the pres­id­ent’s family members or close asso­ci­ates.

Like its prede­cessors, the Trump White House purpor­ted to limit who could commu­nic­ate with the Depart­ment of Justice about specific law enforce­ment matters — a prac­tice first adop­ted by the Ford admin­is­tra­tion in the wake of Water­gate. (Some admin­is­tra­tions exten­ded this policy to other law enforce­ment agen­cies, as well.) But the previ­ous admin­is­tra­tion policy appears to have been primar­ily honored in the breach. For instance, Trump and other White House offi­cials repeatedly viol­ated the admin­is­tra­tion’s contacts policy, exert­ing improper polit­ical pres­sure on Depart­ment of Justice offi­cials — such as when Trump contac­ted Jeffrey Clark, the acting head of the Civil Divi­sion, in order to push the depart­ment to pursue claims of voter fraud.

The legis­la­tion proposes a simple solu­tion to this prob­lem: It would require the attor­ney general to submit a log of all covered commu­nic­a­tions with the White House to Justice’s inspector general, who would forward any inap­pro­pri­ate commu­nic­a­tions to Congress. This provi­sion could be made even stronger by narrow­ing the scope of its exemp­tions and apply­ing it to other enforce­ment agen­cies, such as the depart­ments of Labor and State, which also face the risk of improper politi­ciz­a­tion.

In the wake of the contro­ver­sial removal of several inspect­ors general during the Trump admin­is­tra­tion, the legis­la­tion seeks to safe­guard these inde­pend­ent watch­dogs by grant­ing them for-cause removal protec­tion. Another bill, which passed the House in the last Congress, would expand the Justice inspector gener­al’s juris­dic­tion to include alleg­a­tions relat­ing to a depart­ment attor­ney’s author­ity to invest­ig­ate, litig­ate or provide legal advice. This would be an import­ant addi­tion to the Protect­ing Our Demo­cracy Act. Inspect­ors general at other law enforce­ment agen­cies should also have the express stat­utory author­ity to invest­ig­ate improper polit­ical inter­fer­ence.

These are among a number of provi­sions in the meas­ure that aim to safe­guard the rule of law and promote the ideal of public service as a public trust. The bill is an import­ant first step to revital­ize import­ant guard­rails for the rule of law. These reforms repres­ent the codi­fic­a­tion of many prac­tices and norms to which admin­is­tra­tions of both parties long adhered — and which admin­is­tra­tions of both parties have broken.

Many of the meas­ures in the bill, which has support from organ­iz­a­tions across the ideo­lo­gical spec­trum, have had bipar­tisan support in Congress. Now is the time for Congress to ensure that our govern­ment has a strong found­a­tion.