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Policy Solution

Proposals for Reform: National Task Force on Rule of Law & Democracy

Summary: The National Task Force on Rule of Law and Democracy is a nonpartisan group of former public servants and policy experts who have come together to develop solutions to repair and revitalize our democracy.

  • Preet Bharara, Co-Chair
  • Christine Todd Whitman, Co-Chair
  • Mike Castle
  • Christopher Edley, Jr.
  • Chuck Hagel
  • David Iglesias
  • Amy Comstock Rick
  • Donald B. Verrilli, Jr.
  • Rudy Mehrbani (Staff)
  • Wendy R. Weiser (Staff)
  • Daniel Weiner (Staff)
  • Martha Kinsella (Staff)
  • Natalie Giotta (Staff)
Published: October 2, 2018

I. Introduction

The values that under­gird Amer­ican demo­cracy are being tested. As has become increas­ingly clear, our repub­lic has long relied not just on formal laws and the Consti­tu­tion, but also on unwrit­ten rules and norms that constrain the beha­vior of public offi­cials. These guard­rails, often invis­ible, curb abuses of power. They ensure that offi­cials act for the public good, not for personal finan­cial gain. They protect nonpar­tisan public servants in law enforce­ment and else­where from improper polit­ical influ­ence. They protect busi­nesspeople from corrupt­ing favor­it­ism and graft. And they protect citizens from arbit­rary and unfair govern­ment action. These prac­tices have long held the alle­gi­ance of public offi­cials from all polit­ical parties. Without them, govern­ment becomes a chaotic grab for power and self-interest.

Lately, the nation has learned again just how import­ant those protec­tions are — and how flimsy they can prove to be. For years, many assumed that pres­id­ents had to release their tax returns. It turns out they don’t. We assumed pres­id­ents would refrain from inter­fer­ing in crim­inal invest­ig­a­tions. In fact, little prevents them from doing so. Respect for expert­ise, for the role of the free press, for the proper inde­pend­ent role of the judi­ciary, seemed firmly embed­ded prac­tices. Until they weren’t.

Pres­id­ents have over­reached before. When they did so, the system reacted. George Wash­ing­ton’s decision to limit himself to two terms was as solid a preced­ent as ever exis­ted in Amer­ican polit­ical life. Then Frank­lin D. Roosevelt ran for and won a third and then a fourth term. So, we amended the Consti­tu­tion to form­ally enshrine the two-term norm. After John F. Kennedy appoin­ted his brother to lead the Justice Depart­ment and other elec­ted offi­cials sought patron­age posi­tions for their family members, Congress passed an anti-nepot­ism law. Richard Nixon’s many abuses promp­ted a wide array of new laws, ranging from the special prosec­utor law (now expired) to the Budget and Impound­ment Control Act and the War Powers Act. Some of these were enacted after he left office. Others, such as the federal campaign finance law, were passed while he was still serving, with broad bipar­tisan support, over his veto. In the wake of Water­gate, a full-fledged account­ab­il­ity system — often unspoken — constrained the exec­ut­ive branch from lawless activ­ity. This held for nearly half a century.

In short, time and again abuse produced a response. Reform follows abuse — but not auto­mat­ic­ally, and not always. Today the coun­try is living through another such moment. Once again, it is time to act. It is time to turn soft norms into hard law. A new wave of reform solu­tions is essen­tial to restore public trust. And as in other eras, the task of advan­cing reform cannot be for one or another party alone.

Hence the National Task Force on Rule of Law and Demo­cracy. The Task Force is a nonpar­tisan group of former public servants and policy experts. We have worked at the highest levels in federal and state govern­ment, as prosec­utors, members of the milit­ary, senior advisers in the White House, members of Congress, heads of federal agen­cies, and state exec­ut­ives. We come from across the coun­try and reflect vary­ing polit­ical views. We have come together to develop solu­tions to repair and revital­ize our demo­cracy. Our focus is not on the current polit­ical moment but on the future. Our system of govern­ment has long depended on lead­ers follow­ing basic norms and ground rules designed to prevent abuse of power. Unless those guard­rails are restored, they risk being destroyed perman­ently — or being replaced with new anti­demo­cratic norms that future lead­ers can exploit.

We have examined norms and prac­tices surround­ing finan­cial conflicts, polit­ical inter­fer­ence with law enforce­ment, the use of govern­ment data and science, the appoint­ment of public offi­cials, and many other related issues. We have consul­ted other experts and former offi­cials from both parties. Despite our differ­ences, we have iden­ti­fied concrete ways to fix what has been broken.

We begin with those norms. What are they? And why do they matter?

Checks and balances. The phrase appears nowhere in the Consti­tu­tion, but it is cent­ral to blunt arbit­rary power and the poten­tial for tyranny.  foot­note1_z83615n 1 The Feder­al­ist No. 51 (James Madison) (“In a single repub­lic, all the power surrendered by the people is submit­ted to the admin­is­tra­tion of a single govern­ment; and the usurp­a­tions are guarded against by a divi­sion of the govern­ment into distinct and separ­ate depart­ments.”).  It’s more than the clock­work mech­an­ism of three separ­ate but coequal branches. Checks have evolved within each branch as well. Congres­sional ethics commit­tees police improper conduct.  foot­note2_nyw4c4d 2 S. Res. 338, 88th Cong. (1964) (estab­lish­ing a Select Commit­tee on Stand­ards and Conduct in the Senate); “Senate Commit­tee Reor­gan­iz­a­tion,” Congres­sional Record, vol. 123, Feb. 1, 1977, p. 2886 (creat­ing a perman­ent Select Commit­tee on Ethics to replace the Select Commit­tee on Stand­ards and Conduct); H.R. Res. 1013, 89th Cong. (1966) (estab­lish­ing a Select Commit­tee on Stand­ards and Conduct in the House of Repres­ent­at­ives); H.R. Res. 418, 90th Cong. (1967) (estab­lish­ing a Commit­tee on Stand­ards of Offi­cial Conduct in the House of Repres­ent­at­ives); H.R. Res. 895, 110th Cong. (2008) (estab­lish­ing an inde­pend­ent Office of Congres­sional Ethics in the House of Repres­ent­at­ives).  Courts oper­ate under a self-imposed code of conduct. Chief judges, circuit judi­cial coun­cils, or the Judi­cial Confer­ence invest­ig­ate alleg­a­tions of wrong­do­ing.  foot­note3_phi8bg3 3 “Code of Conduct for Judi­cial Employ­ees,” in Guide to Judi­ciary Policy, Admin­is­trat­ive Office of the United States Courts, 2013, avail­able at http://www.uscourts.gov/rules-policies/judi­ciary-policies/code-conduct/code-conduct-judi­cial-employ­ees.  The exec­ut­ive branch has stand­ards of ethical conduct, as well as inspect­ors general, internal audit­ors, and the Justice Depart­ment’s special coun­sel regu­la­tions. These over­lap­ping safe­guards check the conduct of the power­ful.

An even­han­ded and unbiased admin­is­tra­tion of the law. The awesome power of prosec­u­tion must be wiel­ded without consid­er­a­tion of indi­vidu­als’ polit­ical or finan­cial status, or their personal rela­tion­ships. This precept has deep roots. It draws from Brit­ish law. Its viol­a­tion formed a chief complaint in the Declar­a­tion of Inde­pend­ence. And it was woven into Amer­ica’s Consti­tu­tion in the Fifth and Four­teenth Amend­ments, with their prom­ise of “equal protec­tion” and “due process of law.”

Public ethics. Offi­cials are obliged to seek the public good, not private gain. The Consti­tu­tion includes key anti-corrup­tion provi­sions, such as the Emolu­ments Clauses that prevent a pres­id­ent from receiv­ing funds from foreign govern­ments or states. The Framers had a broad view of corrup­tion. To them, it meant a public offi­cial serving some other master — whether pecu­ni­ary or polit­ical — rather than the public.

Respect for science and the free flow of inform­a­tion. In a modern economy, data — whether envir­on­mental, demo­graphic, or finan­cial — must be trust­worthy. Begin­ning espe­cially in the 1970s, an expect­a­tion of govern­ment trans­par­ency — and trans­par­ency of govern­ment data — became stand­ard. And through­out the nation’s history, the account­ab­il­ity provided by a some­times fero­cious free press has been regarded as crucial.

We believe these values are more than fussy polit­ical etiquette. They are, in fact, vital to our demo­cratic insti­tu­tions and neces­sary to restore public trust. We hope that the reflex­ive partis­an­ship of our age does not pose an insur­mount­able obstacle. At other times of reform, Amer­ic­ans from across the ideo­lo­gical spec­trum, includ­ing members of both parties, have come together to restore and repair public insti­tu­tions. Despite today’s intense partisan polar­iz­a­tion, we believe that our great nation can and should simil­arly achieve consensus for reform. In fact, we believe these values still command deep alle­gi­ance from Amer­ic­ans across the polit­ical spec­trum. Our nonpar­tisan work has rein­forced this view. It is up to patri­ots from all parties to work together on behalf of what we believe to be core precepts of our demo­cracy.

“We the People” gave our govern­ment its power. That notion made Amer­ican demo­cracy, imper­fect as it was, truly revolu­tion­ary from the start. Restor­ing these prin­ciples is cent­ral to the task of revital­iz­ing demo­cracy itself.

With these values in mind, the Task Force examined some of the most signi­fic­ant current areas of concern where our demo­cratic system is most under pres­sure from offi­cial over­reach.

In this report, we put forward specific propos­als in support of two basic prin­ciples — the rule of law and ethical conduct in govern­ment.

In future reports, we will turn to other areas, includ­ing issues related to money in polit­ics, congres­sional reform, govern­ment-sponsored research and data, and the process for appoint­ing qual­i­fied profes­sion­als to crit­ical govern­ment posi­tions. Most of our propos­als reflect a decision to make previ­ously long­stand­ing prac­tices legally required. They reflect, we believe, an exist­ing consensus across both parties.

Ethical Conduct and Govern­ment Account­ab­il­ity

To ensure trans­par­ency in govern­ment offi­cials’ finan­cial deal­ings:

  • Congress should pass legis­la­tion to create an ethics task force to modern­ize finan­cial disclos­ure require­ments for govern­ment offi­cials, includ­ing clos­ing the loop­hole for family busi­nesses and privately held compan­ies, and redu­cing the burdens of disclos­ure.

  • Congress should require the pres­id­ent and vice pres­id­ent, and candid­ates for those offices, to publicly disclose their personal and busi­ness tax returns.
  • Congress should require a confid­en­tial national secur­ity finan­cial review for incom­ing pres­id­ents, vice pres­id­ents, and other senior offi­cials.

To better ensure that govern­ment offi­cials put the interests of the Amer­ican people first:

  • Congress should pass a law to enforce the safe­guards in the Consti­tu­tion’s Foreign and Domestic Emolu­ments Clauses, clearly artic­u­lat­ing what payments and bene­fits are and are not prohib­ited and provid­ing an enforce­ment scheme for viol­a­tions.
  • Congress should extend federal safe­guards against conflicts of interest to the pres­id­ent and vice pres­id­ent, with specific exemp­tions that recog­nize the pres­id­ent’s unique role.

To ensure that public offi­cials are held account­able for viol­a­tions of ethics rules where appro­pri­ate:

  • Congress should reform the Office of Govern­ment Ethics (OGE) so that it can better enforce federal ethics laws, includ­ing by:
    • grant­ing OGE the power, under certain circum­stances, to conduct confid­en­tial invest­ig­a­tions of ethics viol­a­tions in the exec­ut­ive branch,
    • creat­ing a separ­ate enforce­ment divi­sion within OGE,
    • allow­ing OGE to bring civil enforce­ment actions in federal court,
    • specify­ing that the OGE director may not be removed during his or her term except for good cause,
    • provid­ing OGE an oppor­tun­ity to review and object to conflict of interest waivers, and
    • confirm­ing that White House staff must follow federal ethics rules.

The Rule of Law and Even­han­ded Admin­is­tra­tion of Justice

To safe­guard against inap­pro­pri­ate inter­fer­ence in law enforce­ment for polit­ical or personal aims:

  • Congress should pass legis­la­tion requir­ing the exec­ut­ive branch to artic­u­late clear stand­ards for, and report on how, the White House inter­acts with law enforce­ment, includ­ing by:

    • requir­ing the White House and enforce­ment agen­cies to publish policies specify­ing who should and should not parti­cip­ate in discus­sions about specific law enforce­ment matters,
    • requir­ing law enforce­ment agen­cies to main­tain a log of covered White House contacts and to provide summary reports to Congress and inspect­ors general.
  • Congress should empower agency inspect­ors general to invest­ig­ate improper inter­fer­ence in law enforce­ment matters.

To ensure that no one is above the law:

  • Congress should require writ­ten justi­fic­a­tions from the pres­id­ent for pardons involving close asso­ci­ates.
  • Congress should pass a resol­u­tion expressly and categor­ic­ally condemning self-pardons.
  • Congress should pass legis­la­tion provid­ing that special coun­sels may only be removed “for cause” and estab­lish­ing judi­cial review for removals.

End Notes

II. Ethical Conduct and Government Accountability

Our repub­lic is rooted in the prin­ciple that govern­ment offi­cials serve the people, not them­selves — that govern­ment power derives from the people and is inten­ded to be used for the people.  foot­note1_wykfwd7 1 “Govern­ments are insti­tuted among Men, deriv­ing their just powers from the consent of the governed.” Declar­a­tion of Inde­pend­ence para. 2 (U.S. 1776); “We the People of the United States, . . . do ordain and estab­lish this Consti­tu­tion for the United States of Amer­ica.” U.S. Const. preamble.; “…Gov­ern­ment of the people, by the people, for the people, shall not perish from the earth.” Abra­ham Lincoln, the Gettys­burg Address (Gettys­burg, PA, Nov. 19, 1863).

The Framers recog­nized that polit­ical lead­ers, being human, will be temp­ted from time to time to put their own interests ahead of the public’s. To restrain abuses of power, they created a system of checks and balances. They also included several provi­sions in the Consti­tu­tion to ensure that top public offi­cials are not econom­ic­ally beholden to others. For example, Foreign Emolu­ments Clause prohib­its federal offi­cials from receiv­ing payments or gifts from foreign govern­ments.  foot­note2_ug3qk78 2 U.S. Const. art. I, § 9, cl. 8 (“No title of nobil­ity shall be gran­ted by the United States: and no person hold­ing any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolu­ment, office, or title, of any kind whatever, from any king, prince, or foreign state.”).  Its Domestic Emolu­ments Clause applies a similar rule to the pres­id­ent with respect to U.S. states, and also specifies that Congress may not award the pres­id­ent salary increases during his or her term.  foot­note3_i6795xw 3 U.S. Const. art. II, § 1, cl. 7 (“The Pres­id­ent shall, at stated times, receive for his service, a compens­a­tion, which shall neither be increased nor dimin­ished during the period for which he shall have been elec­ted, and he shall not receive within that period any other emolu­ment from the United States, or any of them.”)  And the Due Process Clauses of the Fifth and Four­teenth Amend­ments prohibit federal and state judges from presid­ing over cases in which they have a personal interest.  foot­note4_06873jk 4 U.S. Const. amends. V, XIV; Caper­ton v. A.T. Massey Coal Co<em>.</em>, 556 U.S. 868 (2009) (find­ing that a West Virginia Supreme Court of Appeals judge should have recused, as a matter of due process, where defend­ant contrib­uted $3 million to judge’s elec­tion campaign).

These consti­tu­tional provi­sions provide the found­a­tion and support for a broad range of other rules — writ­ten and unwrit­ten — adop­ted over time to constrain top lead­ers. Most notably, a set of robust conflict of interest laws, put in place more than a century ago, prohibit many public offi­cials from taking part in govern­ment matters involving their own personal finan­cial interests or those of their imme­di­ate famil­ies. Nearly half a century ago, in the wake of Water­gate, Congress strengthened these protec­tions by passing the Ethics in Govern­ment Act of 1978. This law created a federal agency, the Office of Govern­ment Ethics, dedic­ated to monit­or­ing govern­ment offi­cials’ compli­ance with conflict of interest and other ethics rules. It also requires high-rank­ing govern­ment offi­cials to disclose their finan­cial interests and deal­ings to the public. (For a summary of ethics and disclos­ure require­ments for elec­ted and appoin­ted offi­cials, please see Appendix on page 28.)

These laws reflect the shared under­stand­ing that public offi­cials should not be able to use their power to advance their own personal or finan­cial interests, that trans­par­ency is needed to enable the public to identify improper influ­ences, and that some meas­ure of account­ab­il­ity is needed to deter miscon­duct.

Unfor­tu­nately, formal ethics laws exempt most senior govern­ment offi­cials — specific­ally the pres­id­ent and vice pres­id­ent, and, with respect to some laws, members of Congress and federal judges. That the law does not bind these top offi­cials does not mean, however, that they should not follow its prin­ciples.

Elec­ted office­hold­ers have long volun­tar­ily adop­ted ethics prac­tices to rein­force the public’s faith in the integ­rity of our govern­ment. For example, while conflict of interest laws do not apply to the pres­id­ent, vice pres­id­ent, or members of Congress, in recent decades many of these offi­cials — includ­ing, until recently, every pres­id­ent and vice pres­id­ent in the last four decades — have volun­tar­ily divested from assets that could poten­tially pose a conflict with their offi­cial duties or kept such invest­ments in a blind trust whose contents were hidden from them.  foot­note5_byocllh 5 See infra at 8 (discuss­ing divest­ment by past pres­id­ents and vice pres­id­ents).  Simil­arly, although not required by law, all pres­id­ents since Richard Nixon, and all major party pres­id­en­tial nomin­ees since Jimmy Carter, had, until recently, volun­tar­ily disclosed their personal tax returns to the public to provide more inform­a­tion about their personal finances and to confirm that they were paying their fair share in taxes.  foot­note6_ibx7qrt 6 See infra at 6–7 (discuss­ing public disclos­ure of tax returns by past pres­id­ents and pres­id­en­tial candid­ates).

These long­stand­ing prac­tices, or norms, have come to be under­stood as a crit­ical compon­ent of account­able govern­ment for the people. Because our lead­ers have been commit­ted to the tradi­tion of ethics in public service, includ­ing finan­cial trans­par­ency and inde­pend­ent over­sight, the fact that they have been form­ally exemp­ted from many ethics laws has not posed a major prob­lem.

Unfor­tu­nately, that commit­ment is erod­ing. This phenomenon is not entirely new. Pres­id­ent Bill Clin­ton, for instance, notori­ously issued pardons during his last day in office to a fugit­ive investor whose ex-wife had made substan­tial dona­tions to the Clin­ton Pres­id­en­tial Library and to Hillary Clin­ton’s Senate campaign,  foot­note7_d6xh2x7 7 James Grim­aldi, “Denise Rich Gave Clin­ton Library $450,000,” Wash­ing­ton Post, Feb. 10, 2001, https://www.wash­ing­ton­post.com/archive/busi­ness/2001/02/10/denise-rich-gave-clin­ton-library-450000/e0e10291–841a-4e38–893e-d500ee4a5b30.  and to a busi­ness­man who had retained Mrs. Clin­ton’s brother to advoc­ate for a clem­ency applic­a­tion.  foot­note8_yxjx­it6 8 James V. Grim­aldi and Peter Slevin, “Hillary Clin­ton’s Brother Was Paid for Role in 2 Pardons,” Wash­ing­ton Post,Feb. 22, 2001, https://www.wash­ing­ton­post.com/archive/polit­ics/2001/02/22/hillary-clin­tons-brother-was-paid-for-role-in-2-pardons/c5c94a42-b71c-4fe0-a90e-b6189664a8a4/.  Mrs. Clin­ton herself was later faul­ted for her many deal­ings with indi­vidu­als and entit­ies who donated to the Clin­ton Found­a­tion, which was still run by her husband and daugh­ter, while she served as Pres­id­ent Obama’s secret­ary of state.  foot­note9_5e5b­dbr 9 Rosalind S. Held­er­man, Spen­cer S. Hsu, and Tom Hamburger, “Emails Reveal How Found­a­tion Donors Got Access to Clin­ton and Her Close Aides at State Dept.,” Wash­ing­ton Post, Aug. 22, 2016, http://wapo.st/2bxLDlH.  Recent decades have seen a number of scan­dals over congres­sional conflicts of interest and other alleged miscon­duct.  foot­note10_usrl4rm 10 See, e.g., Jane Coaston, “GOP Rep. Chris Collins Was Just Charged with Insider Trad­ing,” Vox, Aug. 8, 2018,https://www.vox.com/2018/8/8/17663938/chris-collins-arres­ted-insider-trad­ing-immun­o­thera­peut­ics; Susan Davis, “Senate Ethics Panel Admon­ishes Sen. Menen­dez,” NPR, Apr. 26, 2018,https://www.npr.org/2018/04/26/606165063/senate-ethics-panel-admon­ishes-sen-menen­dez; Matt Rourke, “Veteran Pa. Congress­man Convicted in Rack­et­eer­ing Case,” CBS News, June 21, 2016,https://www.cbsnews.com/news/veteran-pennsylvania-congress­man-convicted-in-rack­et­eer­ing-case-chaka-fattah/; Susan Schmidt and James V. Grim­aldi, “Ney Sentenced to 30 Months in Prison for Abramoff Deals,” Wash­ing­ton Post, Jan. 20, 2007,http://www.wash­ing­ton­post.com/wp-dyn/content/article/2007/01/19/AR2007011900162.html; “Abscam Scan­dal Clouded Congress’ Image,” CQ Almanac, 36th ed. (Wash­ing­ton, D.C.: Congres­sional Quarterly, 1981), 513–21 avail­able at http://library.cqpress.com/cqal­manac/cqal80–1174797 (several members of Congress convicted of vari­ous bribery and conspir­acy charges in connec­tion with payments received in exchange for govern­ment contracts, prom­ises to intro­duce legis­la­tion, or help obtain­ing offi­cial U.S. resid­ency).

What is differ­ent today is the pervas­ive­ness of breaches in ethical norms, espe­cially at the highest levels of govern­ment. These breaches threaten to under­mine public trust not only in partic­u­lar offi­cials but also in the integ­rity of bedrock govern­mental insti­tu­tions.

The starkest example is Pres­id­ent Trump’s decision to keep owner­ship and control of his far-flung busi­ness interests — a major depar­ture from the expect­a­tions set by his prede­cessors.  foot­note11_x5ka592 11 Peter Overby, “Change to Pres­id­ent Trump’s Trust Lets Him Tap Busi­ness Profits,” NPR, Apr. 3, 2017, http://www.npr.org/2017/04/03/522511211/change-to-pres­id­ent-trumps-trust-lets-him-tap-busi­ness-profits; Jennifer Calfas, “Eric Trump Says He’ll Give the Pres­id­ent Quarterly Updates on Busi­ness Empire,” Fortune Magazine, Mar. 24, 2017, http://fortune.com/2017/03/24/eric-trump-pres­id­ent-busi­ness-organ­iz­a­tion/; Rosalind S. Held­er­man and Drew Harwell, “Docu­ments Confirm Trump Still Bene­fit­ing from His Busi­ness,” Wash­ing­ton Post, Feb. 4, 2017, http://wapo.st/2k7rTFa; see gener­ally infra 8–15.  It has produced an ever-expand­ing list of situ­ations where his decisions as pres­id­ent could directly or indir­ectly affect his personal finan­cial affairs.  foot­note12_iw9lnsr 12 Daniel I. Weiner, Strength­en­ing Pres­id­en­tial Ethics Law, Bren­nan Center for Justice, 2017, 4–5 & nn. 23–41, avail­able at https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/Strength­en­ing%20Pres­id­en­tial%‌20Eth­ics%20Law.%20Daniel%20Weiner.pdf.   That circum­stance in turn can make it hard to discern where the public interest ends and the pres­id­ent’s self-interest begins.  foot­note13_xzl1m2x 13 Id. at 3.

Take, for example, the admin­is­tra­tion’s recent contro­ver­sial decision to rescue the Chinese tech giant ZTE, which had been sanc­tioned for viol­at­ing U.S. law.  foot­note14_kwisi12 14 SeeMark Sulli­van, “Why Trump’s Desire to Bail Out Chinese Tech Giant ZTE Is so Alarm­ing,” Fast Company, May 16, 2018, https://www.fast­com­pany.com/40573250/why-trumps-desire-to-bail-out-chinese-tech-giant-zte-is-so-alarm­ing.  Crit­ics have sugges­ted that the decision was motiv­ated by the pres­id­ent’s personal grat­it­ude for a loan China made to a Trump project in Indone­sia.  foot­note15_7scu68z 15 See, e.g., Matthew Yglesias, “Trump Helps Sanc­tioned Chinese Phone Maker after China Deliv­ers a Big Loan to a Trump Project,” Vox, May 15, 2018, https://www.vox.com/policy-and-polit­ics/2018/5/15/17355202/trump-zte-indone­sia-lido-city.  But the move was also consist­ent with further­ing a legit­im­ate policy object­ive: build­ing good­will with the Chinese govern­ment ahead of the pres­id­ent’s summit with North Korean leader Kim Jong-un.  foot­note16_qi7ena4 16 Ana Swan­son, “Trump Strikes Deal to Save Chin­a’s ZTE as North Korea Meet­ing Looms,” New York Times, June 7, 2018, https://www.nytimes.com/2018/06/07/busi­ness/us-china-zte-deal.html.  If that was the case, the pres­id­ent’s personal deal­ings with China only served to obscure what his admin­is­tra­tion was trying to accom­plish.

Doubts about pres­id­ents’ interests can sap their legit­im­acy and the legit­im­acy of their actions, even when they are not actu­ally motiv­ated by self-interest. That should concern any pres­id­ent’s polit­ical support­ers as much as his or her oppon­ents.  foot­note17_3hyupjt 17 As David Frum, formerly a top aide to Pres­id­ent George W. Bush, has noted, “legit­im­acy is import­ant precisely because it shapes the beha­vior and beliefs of non-support­ers,” who will only accept policies with which they disagree if they perceive them as a legit­im­ate exer­cise of author­ity. David Frum, “Trump’s Crisis of Legit­im­acy,” The Atlantic, July 17, 2018, https://www.theat­lantic.com/polit­ics/archive/2018/07/is-trumps-pres­id­ency-legit­im­ate/565451/.

If the ethics preced­ents set by Pres­id­ent Trump are not addressed now, they could also balloon in future admin­is­tra­tions. For example, poten­tial contenders for the Demo­cratic nomin­a­tion in 2020 include: the founder and chief exec­ut­ive of Face­book, a global social media company with more than 2 billion users around the world;  foot­note18_d8jd­jzu 18 Shawn M. Carter, “More Signs Point to Mark Zuck­er­berg Possibly Running for Pres­id­ent in 2020,” CNBC, Aug. 15, 2017, https://www.cnbc.com/2017/08/15/mark-zuck­er­berg-could-be-running-for-pres­id­ent-in-2020.html; “Company Info,”Face­book News­room, accessed Aug. 31, 2018, https://news­room.fb.com/company-info/ (summar­iz­ing inform­a­tion about the company’s global user base and multiple offices abroad).  the former CEO of Star­bucks, which has loca­tions in dozens of coun­tries;  foot­note19_kbpr9t8 19 Beth Kowitt, “Star­bucks’ Howard Schultz to Retire. Will His Next Role Be Pres­id­en­tial Candid­ate?” Fortune, June 4, 2018, http://fortune.com/2018/06/04/howard-schultz-star­bucks-retire-pres­id­ent/. Star­bucks’ website boasts offices in 75 markets. “Star­bucks Coffee Inter­na­tional,” Star­bucks, accessed Aug. 27, 2018, https://www.star­bucks.com/busi­ness/inter­na­tional-stores.  and a former Massachu­setts governor who now serves as a managing director at Bain Capital, a global hedge fund with offices in 10 coun­tries.  foot­note20_12lh­f98 20 Michael Leven­son, “Deval Patrick Plans to Ramp Up His Polit­ical Activ­ity This Year,” Boston Globe, Apr. 13, 2018, https://www.boston­globe.com/metro/2018/04/13/deval-patrick-contem­plat­ing-white-house-run-says-plans-ramp-his-polit­ical-activ­ity-this-year/6QGDvt­Mzn­B2bm­BplIg­g1PM/story.html; “Global Offices,” Bain & Company, https://www.bain.com/about/offices/ (summar­iz­ing inform­a­tion about the company’s global reach).

Disreg­ard for long­stand­ing ethical guidelines is not limited to the pres­id­ency. The disreg­ard has also affected other public offi­cials in both the exec­ut­ive branch and Congress. Former Envir­on­mental Protec­tion Agency Admin­is­trator Scott Pruitt, for instance, attrac­ted bipar­tisan criti­cism for his many ethical lapses, like rent­ing a luxury apart­ment at below-market rates from the wife of an energy lobby­ist with busi­ness before his agency.  foot­note21_n0worwy 21 Eric Lipton, “Pruitt Had a $50-a-Day Condo Linked to Lobby­ists. Their Client’s Project Got Approved,” New York Times, Apr. 2, 2018, https://www.nytimes.com/2018/04/02/climate/epa-pruitt-pipeline-apart­ment.html, (report­ing that Demo­crats on the House Commit­tee on Energy and Commerce were intent on examin­ing the terms of the lease); Sean Sulli­van, “Three Repub­lican Senat­ors Voice Concern about EPA Head Scott Pruit­t’s Conduct,” Wash­ing­ton Post, Apr. 8, 2018, https://wapo.st/2qgcjvq (Senat­ors John Neely Kennedy, Lind­sey O. Graham, and Susan Collins criti­ciz­ing Pruitt for the lease and his response to scru­tiny about it).

Most Amer­ic­ans would agree that this is not accept­able. Indeed, accord­ing to recent polling, more than three-quar­ters of voters rank corrup­tion in govern­ment as a top issue for the 2018 elec­tion, with almost a third call­ing it the most import­ant issue.  foot­note22_u1gug3r 22 Ashley Kirzinger et al., Kaiser Health Track­ing Poll — Late Summer 2018: The Elec­tion, Pre-exist­ing Condi­tions, and Surprises on Medical Bills, Sept. 5, 2018, https://www.kff.org/bca7b93.  The prin­ciple that govern­ment service should not be used to advance one’s personal finan­cial interests is one of our polit­ical system’s bedrock values.  foot­note23_u3sz0s7 23 The Supreme Court called self-deal­ing of this sort “an evil that endangers the very fabric of a demo­cratic soci­ety.” United States v. Missis­sippi Valley Gener­at­ing Co., 364 U.S. 520, 562 (1961).See alsoZephyr Teachout, “The Anti-Corrup­tion Prin­ciple,” Cornell Law Review 94 (2009): 342, 345 (arguing that the Consti­tu­tion “carries within it an anti-corrup­tion prin­ciple” and that “power-and-wealth seek­ing by repres­ent­at­ives and elites is a major and constant threat to our demo­cracy”); Philip B. Heymann, “Demo­cracy and Corrup­tion,” Ford­ham Inter­na­tional Law Journal 20 (1996): 327–28 (discuss­ing impact of corrup­tion on demo­cracy, citing inter­na­tional examples).  To protect it, we must trans­late some of the tradi­tions and ground rules to which many of our lead­ers have volun­tar­ily adhered into legal require­ments, while updat­ing and revital­iz­ing exist­ing ethics and anti­cor­rup­tion laws.

Ensure Trans­par­ency in Govern­ment Offi­cials’ Finan­cial Deal­ings

Trans­par­ency rules are among the most funda­mental ethical safe­guards to help ensure that ulti­mate power remains with the people. Without mean­ing­ful disclos­ure of public offi­cials’ finan­cial and personal deal­ings, it is diffi­cult for the public to detect poten­tial sources of bias and to hold its repres­ent­at­ives account­able. Disclos­ure also empowers journ­al­ists, legis­lat­ors, and law enforce­ment offi­cials to expose offi­cial self-deal­ing and deter corrupt acts. Of course, govern­ment offi­cials do not forfeit their privacy completely, and they have legit­im­ate reas­ons for main­tain­ing privacy in some areas. But sunlight remains the best disin­fect­ant.  foot­note24_5q20tte 24 Louis D. Bran­deis, Other People’s Money and How the Bankers Use It (New York: Fred­er­ick A. Stokes Co., 1914), 62.

PROPOSAL 1
Congress should pass legis­la­tion to create an ethics task force to modern­ize finan­cial disclos­ure require­ments for public offi­cials.

The Ethics in Govern­ment Act of 1978, enacted in response to the Water­gate scan­dal, requires high-rank­ing federal offi­cials — includ­ing the pres­id­ent, vice pres­id­ent, members of Congress, and candid­ates for those offices — to publicly file a report detail­ing their finan­cial hold­ings and personal deal­ings.  foot­note25_yh3i9w2 25 Specific­ally, the OGE 278 requires that offi­cials disclose their personal sources of income, assets, debts, and other finan­cial inform­a­tion, and employ­ment arrange­ments and agree­ments, as well as inform­a­tion for spouses and depend­ent chil­dren. 5 C.F.R. § 2634; Office of Govern­ment Ethics, Form 278-e, Public Finan­cial Disclos­ure (2018); see also Table 1.  These reports help ethics regu­lat­ors and the voting public identify poten­tial biases that could influ­ence how they will govern.

While the Act’s disclos­ure rules are tremend­ously valu­able, they are also sorely in need of an over­haul. In some cases, the Act allows crit­ical inform­a­tion to remain undis­closed. For example, while the law requires candid­ates and offi­cials to identify family busi­nesses and other private compan­ies in which they have substan­tial owner­ship interests, these provi­sions have not kept pace with chan­ging finan­cial struc­tures. Unlike in the 1970s, today many wealthy indi­vidu­als hold most of their assets indir­ectly through networks of limited liab­il­ity compan­ies (LLCs) and similar entit­ies that were not common when the Ethics in Govern­ment Act was passed.  foot­note26_x52q6tm 26 Most states did not pass laws permit­ting LLCs until the late 1980s and early 1990s. SeeLarry Ribstein, “The Emer­gence of the Limited Liab­il­ity Company,” Busi­ness Lawyer 51, no. 1 (1995): 1, 2 (noting that between 1977, when Wyom­ing enacted first LLC stat­ute, and 1995, all U.S. juris­dic­tions but Vermont and Hawaii had enacted LLC stat­utes); see alsoAmer­ican Bar Asso­ci­ation,“LLCs: Is the Future Here? A History and Prognosis,” Law Trends and News 1 (Oct. 2004), avail­able at https://www.amer­ic­an­bar.org/news­let­ter/public­a­tions/law_trends_news_prac­tice_area_e_news­let­ter_home/llc.html (discuss­ing 1977 Wyom­ing stat­ute and evol­u­tion of other states’ LLC stat­utes). Accord­ing to the IRS, based on tax returns, the number of LLCs went from 17,335 in 1993 to 1,898,178 in 2008. See “Stat­ist­ics of Income (SOI) Tax Stats — Integ­rated Busi­ness Data 1980–2008,” Internal Revenue Service, https://www.irs.gov/pub/irs-soi/80ot1all.xls.  Current law does not gener­ally require candid­ates and offi­cials to disclose crit­ical inform­a­tion about those entit­ies, includ­ing their sources of income, debts, or co-owners.  foot­note27_9jyglnn 27 Daniel I. Weiner and Lawrence Norden, Pres­id­en­tial Trans­par­ency: Beyond Tax Returns,Bren­nan Center for Justice, 2017, 2–3, avail­able at https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/Pres­id­en­tial%20Trans­par­ency%20Bey­ond%20Tax%20Re­turns.pdf. Ethics offi­cials can request such inform­a­tion from specific filers as a condi­tion for certi­fy­ing, but they do not have to do so, and the inform­a­tion is not publicly disclosed. See gener­ally Guide to Draft­ing Ethics Agree­ments for PAS Nomin­ees, Office of Govern­ment Ethics, Septem­ber 2014, avail­able at https://www.oge.gov/Web/oge.nsf/Resources/PAS+­Nom­in­ee+Eth­ic­s+Agree­ment+Guide+(MS+Word).  Too often, that deprives the public of the inform­a­tion they need to determ­ine poten­tial conflicts of interest.

Limiting Presidential Terms graphic 5W Infographic

Take, for example, a family busi­ness that derives substan­tial income from contracts with foreign govern­ments, owes money to a foreign coun­try’s state-run bank, or is even co-owned by a foreign offi­cial. Under current ethics law, candid­ates and govern­ment offi­cials would have no legal oblig­a­tion to disclose any such ties.  foot­note28_zkzw4ys 28 SeeEth­ics in Govern­ment Act, 5 U.S.C. App. § 102 (list­ing disclos­ure require­ments, which do not include report­ing for family busi­nesses). In the case of Pres­id­ent Trump, for instance, most of his hold­ings are tied up in a web of approx­im­ately 500 LLCs and other closely-held entit­ies, which makes it likely his disclos­ure reports omit crit­ical inform­a­tion about the pres­id­ent’s finances. See Ben Popken, “What Trump’s Disclos­ure of His 500 LLCs Can and Can’t Tell Us,” NBC News, May 16, 2018, https://www.nbcnews.com/busi­ness/taxes/what-trump-s-disclos­ure-his-500-llcs-can-can-t-n874391.

In other ways, the ethics disclos­ure rules enacted four decades ago have become unduly burden­some for public offi­cials. Most notably, they require disclos­ure of very minor sources of income and small assets unlikely to raise signi­fic­ant ethical ques­tions. That is because the require­ments are keyed to dollar values that have not changed since the 1970s. These and other outdated rules can make the filing exper­i­ence oner­ous even for candid­ates and offi­cials with relat­ively simple finances. This creates the oppor­tun­ity for inad­vert­ent errors and may even deter qual­i­fied people from pursu­ing public service.  foot­note29_4r7fkmg 29 Work­ing Group on Stream­lin­ing Paper­work for Exec­ut­ive Nomin­a­tions, Stream­lin­ing Paper­work for Exec­ut­ive Nomin­a­tions (Wash­ing­ton, D.C.: Exec­ut­ive Office of the Pres­id­ent of the United States, 2012), 4, 48, https://www2.oge.gov/Web/OGE.nsf/0/2CE9B19C0F0ED82A85257EA600655818/$FILE/243ff5ca6d384f6f­b89728a57e65552f3.pdf (find­ing that the “two areas partic­u­larly ripe for reform are: (1) elim­in­at­ing the require­ment to report invest­ment income…and (2) rais­ing and ration­al­iz­ing minimum report­ing thresholds across report­ing categor­ies to exclude the disclos­ure of finan­cial items too insig­ni­fic­ant to raise a concern over conflict of interest” and that imple­ment­ing these changes may attract more civic and private-sector lead­ers to senior govern­ment service); Terry Sulli­van, “Fabulous Form­less Dark­ness: Pres­id­en­tial Nomin­ees and the Morass of Inquiry,” Brook­ings, Mar. 1, 2001, https://www.brook­ings.edu/articles/fabulous-form­less-dark­ness-pres­id­en­tial-nomin­ees-and-the-morass-of-inquiry/ (call­ing for simpli­fic­a­tion of paper­work nomin­ees are required to complete); Memor­andum from O’Melveny and Myers, on behalf of the Part­ner­ship for Public Service, to Fred Field­ing, White House Coun­sel,“Propos­als to Reform the Pres­id­en­tial Appoint­ments Process” (Apr. 10, 2008): 2, 3, 5, avail­able at http://pres­id­en­tial­trans­ition.org/public­a­tions/view­con­tent­de­tails.php?id=807 (noting that burden­some process and divestit­ure require­ments may deter qual­i­fied people from public service, and recom­mend­ing that nomin­ees’ paper­work be stream­lined in order to reduce error).

The federal ethics disclos­ure require­ments should be updated to address such concerns. To achieve the best outcome, Congress should pass legis­la­tion direct­ing the Office of Govern­ment Ethics to convene a task force of ethics experts to prepare a detailed proposal for a legis­lat­ive over­haul of the relev­ant sections of the Ethics in Govern­ment Act. At a minimum, the legis­la­tion should require the task force to:

  • Address the disclos­ure loop­hole related to family busi­nesses and other privately-held compan­ies. Specific­ally, the task force should propose a way to require filers with signi­fic­ant direct or indir­ect interests in such entit­ies to provide relev­ant inform­a­tion, includ­ing disclos­ure of the entity’s assets, ulti­mate sources of income, liab­il­it­ies (includ­ing cred­it­ors by name), and the iden­tit­ies of other owners.
  • Propose meas­ures to stream­line the filer exper­i­ence and make it less burden­some by, among other things, substan­tially rais­ing the monet­ary thresholds at which partic­u­lar income and assets need to be disclosed.

Fixing outdated disclos­ure rules is some­thing on which poli­cy­makers on both sides of the aisle should be able to agree. Amer­ic­ans of all ideo­lo­gical stripes over­whelm­ingly support trans­par­ency in polit­ics and governance.  foot­note30_aim2ksf 30 Ninety-six percent of Amer­ic­ans polled this year said that it is import­ant that govern­ment be “open and trans­par­ent.” The Public, the Polit­ical System and Amer­ican Demo­cracy¸ Pew Research Center, 2018, 23, avail­able at http://assets.pewre­search.org/wp-content/uploads/sites/5/2018/04/15160829/4–26–2018-Demo­cracy-release1.pdf. Polling shows that large swaths of the Amer­ican public believe it is possible to “address the prob­lem of polit­ical corrup­tion by reform­ing current ethics and elec­tion laws.” Jeffrey D. Milyo and David M. Primo, Public Atti­tudes and Campaign Finance, Bipar­tisan Policy Center, 2017, 17, avail­able at https://bipar­tis­an­policy.org/wp-content/uploads/2018/01/Public-Atti­tudes-and-Campaign-Finance.-Jeffrey-D.-Milyo-David-M.-Primo.pdf.  Reform­ing finan­cial disclos­ure require­ments to give the public more inform­a­tion will give the Amer­ican people greater confid­ence that our lead­ers’ decisions are guided by the nation’s best interests rather than self-deal­ing or hidden interests. Congress can and should ensure that Amer­ic­ans have the inform­a­tion they need to hold public offi­cials account­able, while redu­cing unne­ces­sary require­ments that burden public service.

PROPOSAL 2 
Congress should require the pres­id­ent and vice pres­id­ent, and candid­ates for those offices, to publicly disclose their personal and busi­ness tax returns.

A second import­ant reform is to stand­ard­ize and codify the long­stand­ing prac­tice of sitting pres­id­ents, vice pres­id­ents, and candid­ates for those offices disclos­ing their tax returns.

In 1973, in the wake of scan­dal and seek­ing vindic­a­tion, Pres­id­ent Nixon publicly released his personal tax returns because, as he put it, “People have got to know whether or not their pres­id­ent is a crook.”  foot­note31_txntdfr 31 James Wieghart, “Pres­id­ent Nixon Says, ‘I’m Not a Crook,’ on National Tele­vi­sion,” New York Daily News, Nov. 18, 1973, http://www.nydailynews.com/news/polit­ics/pres­id­ent-nixon-national-tele­vi­sion-not-crook-article-1.2876186. Since then, until 2016, every pres­id­ent, vice pres­id­ent, and major party nominee for those offices has publicly disclosed their personal tax inform­a­tion. Most other seri­ous contenders for the pres­id­ency have also done so.  foot­note32_np1sqxm 32 See “Pres­id­en­tial Tax Returns,” Tax History Project, accessed July 27, 2018, http://www.taxhis­tory.org/www/website.nsf/web/pres­id­en­tialtaxre­turns; Matt Clary, “DNC Says Pres­id­en­tial Candid­ates Usually Release Tax Returns but Romney Won’t,” Poli­ti­fact, Dec. 16, 2011, https://www.poli­ti­fact.com/truth-o-meter/state­ments/2011/dec/16/demo­cratic-national-commit­tee/dnc-says-pres­id­en­tial-candid­ates-usually-release-t/. The complete­ness of these disclos­ures has varied over the years. For example, Pres­id­ent Obama disclosed all his returns from the eight years before he took office, while Pres­id­ent Ford disclosed only summary data about his federal taxes from 1966 to 1975. Id. In addi­tion, while every major party nominee for pres­id­ent and vice pres­id­ent between 1976 and 2016, and many other top contenders, disclosed tax inform­a­tion for at least the year prior to the elec­tion (and in some cases many years), there have been notable excep­tions, includ­ing Ross Perot, Ralph Nader, and most other third-party candid­ates. SeeKaren Your­ish, “Clin­ton Released Her Taxes. Will Trump Follow This Tradi­tion?” New York Times, Aug. 12, 2016, https://www.nytimes.com/inter­act­ive/2016/08/05/us/elec­tions/pres­id­en­tial-tax-returns.html; Emily Schul­theis and Maggie Haber­man, “Rich Pols Play Taxes Hide-and-Seek,” Politico, July 20, 2012, https://www.politico.com/story/2012/07/rich-candid­ates-play-hide-and-seek-with-taxes-078747; James Borne­meier, “Candid­ate Nader Silent on Finances,” L.A. Times, June 4, 1996, http://articles.latimes.com/1996–06–04/news/mn-11625_1_ralph-nader; Form SF-278 (Ralph Nader addendum), Public Finan­cial Disclos­ure Form, June 14, 2000, at 21, avail­able at http://pfds.open­secrets.org/N00000086_99.pdf.  With few excep­tions, the prac­tice had until recently become routine and noncon­tro­ver­sial.  foot­note33_nm4z6iu 33 See, e.g., Stephen Gandel, Shawn Tully, and Stacy Jones, “Here’s Why Donald Trump ‘Not Releas­ing’ His Taxes Could Be Disastrous for his Candid­acy,” Fortune, July 27, 2016, http://fortune.com/2016/07/27/donald-trump-not-releas­ing-taxes/ (report­ing that, since 1980, every party nominee produced a tax return, and all but three released their returns before the nomin­at­ing conven­tions); Joshua Gillin, “Which Pres­id­en­tial Candid­ate Has Released the Most Tax Returns in History?” Poli­ti­fact, July 1, 2015, https://www.poli­ti­fact.com/flor­ida/state­ments/2015‌/jul/01/jeb-bush/which-pres­id­en­tial-candid­ate-has-released-most-tax/ (report­ing on pres­id­en­tial candid­ates’ tax return disclos­ures). Before Pres­id­ent Trump, the last signi­fic­ant contro­versy over a candid­ate’s tax returns involved Mitt Romney, the 2012 Repub­lican Party nominee. Romney delayed releas­ing any tax inform­a­tion until after he won the nomin­a­tion, but bowing to public pres­sure he even­tu­ally disclosed returns for the two prior tax years (2010 and 2011) and summary inform­a­tion for the preced­ing two decades. See Philip Rucker, Jia Lynn Yang, and Steven Mufson, “Mitt Romney Releases Tax Return for 2011, Show­ing He Paid 14.1 Percent Tax Rate,” Wash­ing­ton Post, Sept. 21, 2012, http://wapo.st/UyPfls.

Pres­id­en­tial or vice pres­id­en­tial candid­ates’ tax returns provide a snap­shot of their income and help to confirm that they are follow­ing the same rules that apply to every­one by paying their fair share of taxes. This a real concern. Nixon’s returns, which showed that he had paid very little in certain years thanks to dubi­ous deduc­tions, helped to under­mine his cred­ib­il­ity with the public near the height of the Water­gate scan­dal.  foot­note34_q306urk 34 Mitchell Zuck­off, “Why We Ask to See Candid­ates’ Tax Returns,” New York Times, Aug. 5, 2016, https://www.nytimes.com/2016/08/06/opin­ion/why-we-ask-to-see-candid­ates-tax-returns.html.  His first vice pres­id­ent, Spiro Agnew, resigned in the wake of an invest­ig­a­tion into tax evasion, to which he pleaded no contest.  foot­note35_ya9mj69 35 James M. Naughton, “Agnew Quits Vice Pres­id­ency and Admits to Tax Evasion in ’67; Nixon Consults on Successor,” New York Times, Oct. 10, 1973, https://archive.nytimes.com/www.nytimes.com/learn­ing/general/onthis­day/big/1010.html#article.

 

 Tax returns may also shed addi­tional light on specific conflicts of interest and self-deal­ing, espe­cially those related to tax policy.

 

For all of these reas­ons, codi­fy­ing the long­stand­ing prac­tice of tax return disclos­ure would comple­ment other public disclos­ure require­ments in the Ethics in Govern­ment Act that assist voters and deter corrup­tion.  foot­note36_rni5nmf 36 Under current law, candid­ates are required to file a state­ment of candid­acy once their campaign raises $5,000, see 5 U.S.C. App. § 101(c);11 CFR § 101.3; this proposal would add tax returns to the list of required disclos­ures at that point.  Congress should there­fore pass legis­la­tion that:

  • Requires the pres­id­ent, vice pres­id­ent, and candid­ates for those offices to disclose their personal tax returns and the tax returns of any privately held busi­nesses in which they have a controlling interest at the same time as they make other mandat­ory ethics disclos­ures pursu­ant to the Ethics in Govern­ment Act.  foot­note37_lr9z9pp 37 While disclos­ure of busi­ness tax returns has not been part of the long­stand­ing prac­tice, for the reas­ons stated above, it makes sense to update our disclos­ure require­ments to include them.
  • Requires disclos­ure of returns for the three years preced­ing a candid­ate’s declar­a­tion that they are running for pres­id­ent or vice pres­id­ent and returns for every year a sitting pres­id­ent or vice pres­id­ent is in office for any portion of the year.  foot­note38_6s7998f 38 Three years is the length of time that the IRS already requires taxpay­ers to keep their returns. This bench­mark creates public account­ab­il­ity without over­bur­den­ing the candid­ates. See “How long should I keep records?” Internal Revenue Service, last modi­fied Apr. 23, 2018, https://www.irs.gov/busi­nesses/small-busi­nesses-self-employed/how-long-should-i-keep-records. See gener­ally“Pres­id­en­tial Tax Returns,” Tax History Project, accessed July 27, 2018, http://www.taxhis­tory.org/www/website.nsf/web/pres­id­en­tialtaxre­turns (reflect­ing that many candid­ates disclosed three prior years or more).  

Similar propos­als have been advanced by public offi­cials and advoc­ates of all polit­ical stripes. A number of bills are currently pending before Congress, most notably the Pres­id­en­tial Tax Trans­par­ency Act,  foot­note39_n9aifk9 39 Pres­id­en­tial Tax Trans­par­ency Act, S. 26, 115th Cong. (2017); H.R. 305, 115th Cong. (2017).  which has bipar­tisan support. A grow­ing number of states are also consid­er­ing legis­la­tion that would require candid­ates to disclose their tax returns prior to appear­ing on a ballot, although a uniform federal rule would be prefer­able.  foot­note40_0k007tc 40 Legis­lat­ors have intro­duced bills to require tax return disclos­ure as a condi­tion for access to the ballot in at least 28 states. Max Rieper, “States Continue to Pursue Legis­la­tion on Pres­id­en­tial Tax Return Disclos­ure,” Multistate Insider, Sept. 20, 2017, https://www.multistate.us/blog/updated-on-pres­id­en­tial-candid­ates-to-disclose-tax-returns. See also Alexi McCam­mond, “The Big Picture: The State Efforts to Keep Trump Off the 2020 Ballot,” Axios, June 24, 2018, https://www.axios.com/states-tax-return-laws-pres­id­en­tial-2020-trump-88e84cce-7214–409d-b4c7-a24aad919bdb.html. None of the bills has passed into law, but in some states like New Jersey and Cali­for­nia, the legis­la­tion passed both legis­lat­ive bodies before being vetoed. See Matt Fried­man, “Christie Vetoes Trump-Inspired Bill to Require Tax Returns From Pres­id­en­tial Candid­ates,” Politico, May 1, 2017, https://www.politico.com/states/new-jersey/story/2017/05/01/christie-vetoes-bill-to-require-tax-returns-from-pres­id­en­tial-candid­ates-111677; David Siders, “Jerry Brown Vetoes Bill to Pry Loose Trump’s Tax Returns,” Politico, Oct. 16, 2017, https://www.politico.com/story/2017/10/16/jerry-brown-trump-tax-returns-bill-243799.

Legis­la­tion along these lines is plainly within Congress’s consti­tu­tional powers. Pres­id­ents and vice pres­id­ents, like other public offi­cials, have long been required to disclose signi­fic­ant finan­cial inform­a­tion, with no sugges­tion that such require­ments inter­fere with any consti­tu­tional rights or respons­ib­il­it­ies. Requir­ing disclos­ure of tax returns would be no differ­ent.

PROPOSAL 3 
Congress should require a national secur­ity finan­cial review for incom­ing pres­id­ents, vice pres­id­ents, and other senior offi­cials. 

Disclos­ure of finan­cial inform­a­tion is espe­cially vital in the national secur­ity arena, where it can help identify poten­tial sources of lever­age foreign adversar­ies or entit­ies might have over our polit­ical lead­ers. In his nuclear treaty nego­ti­ations with the Soviet Union, Pres­id­ent Reagan famously advised that Amer­ic­ans should “trust, but verify.”  foot­note41_yeyxqgt 41 Ronald Reagan, “Remarks on Sign­ing the Inter­me­di­ate-Range Nuclear Forces Treaty” (speech, The White House, Wash­ing­ton, D.C., Dec. 8, 1987), avail­able at http://www.pres­id­ency.ucsb.edu/ws/?pid=33795.  The same can be said here.

These concerns are partic­u­larly reson­ant in an era when foreign powers are openly seek­ing to meddle in U.S. elec­tions. As the commander-in-chief of the U.S. milit­ary and the face of U.S. foreign policy, the pres­id­ent is a unique target for foreign adversar­ies. And those efforts are more likely to bear some fruit when a large number of high-rank­ing offi­cials, includ­ing the pres­id­ent and other senior admin­is­tra­tion offi­cials, have globe-span­ning busi­ness interests.  foot­note42_r8ds068 42 See, e.g., James Hill, “A Look Inside Trump’s Global Busi­ness Interests,” ABC News, Jan. 10, 2017, https://abcnews.go.com/Polit­ics/inside-trumps-global-busi­ness-interests/story?id=44416694;Jesse Drucker and Kate Kelly, “Kush­ner’s Firm Deep­ens Ties to Those with Busi­ness in Wash­ing­ton,” New York Times, July 11, 2018, https://www.nytimes.com/2018/07/11/busi­ness/jared-kush­ner-busi­ness-wash­ing­ton.html; Emma Brown and Dani­elle Douglas-Gabriel, “Betsy DeVos’s Ethics Review Raises Further Ques­tions for Demo­crats and Watch­dogs,” Wash­ing­ton Post, Jan. 24, 2017, https://wapo.st/2ko1c2M; Dan Alex­an­der, “Lies, China and Putin: Solv­ing the Mystery of Wilbur Ross’ Miss­ing Fortune,” Forbes, June 18, 2018, https://www.forbes.com/sites/danal­ex­an­der/2018/06/18/lies-china-and-putin-solv­ing-the-mystery-of-wilbur-ross-miss­ing-fortune-trump-commerce-secret­ary-cabinet-conflicts-of-interest/#61d760a7e879.  Indeed, there are already reports that foreign powers sought to use his family’s busi­ness arrange­ments around the world as a source of lever­age over the pres­id­ent’s son-in-law and senior adviser, Jared Kush­ner.  foot­note43_t9z3tpc 43 SeeShane Harris et al., “Kush­ner’s Over­seas Contacts Raise Concerns as Foreign Offi­cials Seek Lever­age,” Wash­ing­ton Post, Feb. 27, 2018, http://wapo.st/2EVqm3q.  This issue is not unique to the current admin­is­tra­tion. Several poten­tial future pres­id­en­tial contenders also have wide-ranging inter­na­tional busi­ness deal­ings.  foot­note44_1ktofkl 44 See supra at 5 (discuss­ing repor­ted contenders for pres­id­en­tial nomin­a­tion in 2020). See alsoShawn Carter, “More Signs Point to Mark Zuck­er­berg Possibly Running for Pres­id­ent in 2020,” CNBC, Aug. 15, 2017, https://www.cnbc.com/2017/08/15/mark-zuck­er­berg-could-be-running-for-pres­id­ent-in-2020.html; Benjamin Hart, “Report: Michael Bloomberg Is, Once Again, Think­ing of Running for Pres­id­ent,” New York Magazine, June 26, 2018, http://nymag.com/daily/intel­li­gen­cer/2018/06/report-bloomberg-is-again-think­ing-of-running-for-pres­id­ent.html; Lauren Dezenski, “Patrick Plans 2020 Decision by End of the Year,” Politico, June 4, 2018, https://www.politico.com/story/2018/06/04/deval-patrick-2020-elec­tions-622825.

When foreign compan­ies seek to purchase Amer­ican busi­nesses, the Treas­ury Depart­ment coordin­ates a govern­ment-wide national secur­ity review process to exam­ine what effect, if any, the proposed trans­ac­tion has on U.S. national secur­ity.  foot­note45_n9gg­zbn 45 The Commit­tee on Foreign Invest­ment in the United States (CFIUS) reviews certain trans­ac­tions involving foreign invest­ments (“covered trans­ac­tions”) in order to determ­ine the effect of such trans­ac­tions on the national secur­ity of the United States. See Defense Produc­tion Act of 1950, 50 U.S.C. § 2170.  Our polit­ical system should have a similar process to eval­u­ate national secur­ity vulner­ab­il­it­ies in the port­fo­lios of senior offi­cials, includ­ing incom­ing pres­id­ents, vice pres­id­ents, and other senior members of the admin­is­tra­tion who have respons­ib­il­it­ies affect­ing national secur­ity.

To that end, Congress should pass legis­la­tion to require the follow­ing:

  • For incom­ing pres­id­ents, vice pres­id­ents, and senior White House staff who work on national secur­ity-related matters, Congress should require the admin­is­tra­tion of a national secur­ity finan­cial risk assess­ment led by the director of the Office of Govern­ment Ethics and the director of National Intel­li­gence. The purpose of the review would be to identify whether an offi­cial’s finan­cial hold­ings present poten­tial national secur­ity vulner­ab­il­it­ies and to issue divest­ment recom­mend­a­tions beyond what may be already required by other laws.
  • Offi­cials subject to the review should be required to provide review­ers with their tax returns and ethics filings, as well as other inform­a­tion the review­ers request about their hold­ings (such as busi­ness trans­ac­tion history and records of mater­ial hold­ings or trans­ac­tions with foreign entit­ies), with a require­ment to update filings whenever there is mater­ial trans­ac­tion but at least on a yearly basis. The review­ers should be required to keep any nonpub­lic inform­a­tion they receive strictly confid­en­tial.
  • The review­ers should be empowered to obtain access to all relev­ant govern­ment inform­a­tion sources and follow-up inform­a­tion from the filers.
  • The review should be under­taken on a confid­en­tial basis, with find­ings presen­ted to the “Gang of Eight,” the bipar­tisan group of congres­sional lead­ers custom­ar­ily briefed on clas­si­fied intel­li­gence matters as part of their over­sight role.
  • The offi­cial in ques­tion should be informed of vulner­ab­il­it­ies the review uncov­ers, unless doing so would imperil coun­ter­in­tel­li­gence gath­er­ing.

There is broad bipar­tisan consensus on the need to combat foreign inter­fer­ence in our elec­tions and in the work­ings of our govern­ment.  foot­note46_49t8lf3 46 See, e.g., Secure Elec­tions Act, S. 2261, 115th Cong. (2017) (bipar­tisan bill that would increase federal support for state and muni­cipal elec­tion cyber­se­cur­ity initi­at­ives with the goal of prevent­ing foreign inter­fer­ence, intro­duced by Sen. James Lank­ford (R-Okla.), with three Demo­cratic and two Repub­lican co-spon­sors). Seventy-two percent of Amer­ic­ans say they are alarmed about foreign inter­fer­ence in U.S. elec­tions, includ­ing 90 percent of Demo­crats, 68 percent of Inde­pend­ents, and 53 percent of Repub­lic­ans. Emily Stew­art, “Most Amer­ic­ans Are Worried about Russian Elec­tion Meddling — And Think Trump Isn’t Taking It Seri­ously,” Vox, Feb. 27, 2018, https://www.vox.com/policy-and-polit­ics/2018/2/27/17057764/poll-trump-elec­tion-meddling-russia-inter­fer­ence (citing a CNN poll conduc­ted by SSRS between Febru­ary 20 and 23, 2018, among a sample of 1,016 respond­ents, avail­able at http://cdn.cnn.com/cnn/2018/images/02/26/rel3c.-.russia.pdf).  A national secur­ity review for incom­ing lead­ers, build­ing on an effect­ive inter­agency program, would provide a way to help ensure that those lead­ers remain account­able to the Amer­ican people rather than any foreign power. The process would also bene­fit the offi­cials them­selves, who may often be unaware of poten­tial vulner­ab­il­it­ies.

Bolster Safe­guards to Ensure Offi­cials Put the Interests of the Amer­ican People First 

Trans­par­ency is import­ant, but it is not enough to ensure that all public offi­cials put the interests of the Amer­ican people ahead of their own. We also need mean­ing­ful guard­rails to prevent offi­cials from cross­ing long-estab­lished lines meant to prevent abuse of power for personal gain. This is espe­cially import­ant at the highest levels of govern­ment because top offi­cials set the tone for the people work­ing under them. Our laws should embody the expect­a­tion that public service be treated as a public trust and not as an oppor­tun­ity for personal enrich­ment. This means chan­ging the law to ensure that those at the very top are subject to the same broad legal stand­ards as those under them.

PROPOSAL 4 
Congress should pass a law to enforce the safe­guards in the Foreign and Domestic Emolu­ments Clauses of the U.S. Consti­tu­tion. 

Two provi­sions in the Consti­tu­tion are specific­ally meant to prevent public offi­cials at all levels from being corrup­ted by conflict­ing finan­cial incent­ives: the Foreign and Domestic Emolu­ments Clauses. Both of these provi­sions have been gener­ally respec­ted by every admin­is­tra­tion since the nation’s found­ing.

The Foreign Emolu­ments Clause seeks to curb foreign influ­ence by prohib­it­ing federal offi­cials from accept­ing “any present, emolu­ment, office, or title, of any kind what­so­ever, from any king, prince, or foreign state” without the consent of Congress.  foot­note47_fhdsteg 47 U.S. Const. art. I, § 9, cl. 8.  The Depart­ment of Justice has frequently applied this provi­sion, issu­ing legal opin­ions on everything from the pres­id­ent’s receipt of the Nobel Peace Prize to govern­ment work­ers perform­ing research stints at foreign univer­sit­ies.  foot­note48_xg3bp1f 48 See Applic­ab­il­ity of the Emolu­ments Clause and the Foreign Gifts and Decor­a­tions Act to the Pres­id­ent’s Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1 (2009), avail­able at https://www.justice.gov/sites/default/files/olc/opin­ions/‌2009/12/31/emolu­ments-nobel-peace_0.pdf (find­ing that Pres­id­ent Obama’s receipt of Nobel Peace Prize did not implic­ate the Foreign Emolu­ments Clause because Nobel Commit­tee was not an instru­ment­al­ity of a foreign govern­ment); Applic­ab­il­ity of Emolu­ments Clause to Employ­ment of Govern­ment Employ­ees by Foreign Public Univer­sit­ies, 18 Op. O.L.C. 13 (1994), avail­able at https://www.justice.gov/file/20391/down­load (conclud­ing that two scient­ists on leave from the National Aero­naut­ics and Space Admin­is­tra­tion could be employed by a public univer­sity in Canada without viol­at­ing the Foreign Emolu­ments Clause because the public univer­sity did not consti­tute an instru­ment­al­ity of a foreign govern­ment).

The Domestic Emolu­ments Clause seeks to prevent undue influ­ence over the pres­id­ent by guar­an­tee­ing the payment of a salary “which shall neither be increased nor dimin­ished during the Period for which he shall have been elec­ted” and by prohib­it­ing the pres­id­ent from receiv­ing any other “emolu­ment from the United States or any of them.”  foot­note49_7ad87lr 49 U.S. Const. art. II, § 1, cl. 7.  There does not appear to be any histor­ical evid­ence of any pres­id­ent ever seek­ing compens­a­tion that would viol­ate this prohib­i­tion.

As it does in many other contexts,  foot­note50_dpw3pcb 50 For example, the Voting Rights Act codi­fies and imple­ments the protec­tions for voting rights in the Four­teenth and Fifteenth Amend­ments. SeeKatzen­bach v. Morgan, 384 U.S. 641 (1966). Simil­arly, the Reli­gious Free­dom Restor­a­tion Act (RFRA) was passed to codify and expand upon the First Amend­ment’s protec­tions for reli­gious liberty. Burwell v. Hobby Lobby, 134 S. Ct. 2751, 2767 (2014).  Congress has passed laws over the years to codify and imple­ment both clauses in certain circum­stances. These range from the Foreign Gifts and Decor­a­tions Act (FGDA), govern­ing when offi­cials may or may not keep cere­mo­nial gifts and honors from foreign govern­ments under the Foreign Emolu­ments Clause  foot­note51_1bfg­fkk 51 5 U.S.C. § 7342 (defin­ing stat­utory terms “gift,” “decor­a­tion,” and “minimal value,” and estab­lish­ing categor­ies of gifts and decor­a­tions to federal employ­ees, the receipt of which Congress consents).  to peri­odic legis­la­tion rais­ing the pres­id­ent’s salary as provided by the Domestic Emolu­ments Clause.  foot­note52_mt2d07q 52 See, e.g., Treas­ury and General Govern­ment Appro­pri­ations Act of 2000, 3 U.S.C. § 102 (1999) (increas­ing the pres­id­ent’s salary from $200,000 to $400,000, effect­ive at noon on Janu­ary 20, 2001).

To further reduce the possib­il­ity of conflicts and emolu­ments viol­a­tions, from the 1970s until 2017, success­ive pres­id­ents and vice pres­id­ents volun­tar­ily divested from prob­lem­atic invest­ments. They gener­ally limited their direct finan­cial hold­ings to “plain vanilla” assets, like cash and widely distrib­uted mutual funds, and turned any remain­ing assets over to a blind trust to be sold and replaced by new invest­ments unknown to the bene­fi­ciary.  foot­note53_6acof44 53 Matt O’Brien, “Donald Trump Won’t Do What Ronald Reagan, George H.W. Bush, Bill Clin­ton, and George W. Bush Did,” Wash­ing­ton Post, Nov. 15, 2016, https://wapo.st/2gcbamH; Roger Parloff, “Why Aren’t Donald Trump’s Epic Conflicts of Interest Illegal?” Fortune, Nov. 15, 2016, http://fortune.com/2016/11/15/donald-trump-conflicts-interest-ethics/; Laura Lee, “What Is a Blind Trust? And Why It May Be Donald Trump’s Best Option,” Fox Busi­ness, Dec. 13, 2016, https://www.foxbusi­ness.com/polit­ics/what-is-a-blind-trust-and-why-it-may-be-donald-trumps-best-option.

Because public offi­cials have gener­ally adhered to these consti­tu­tional safe­guards, little atten­tion has been paid to the fact that the law does not specify how they should be applied in many circum­stances. For example, the Consti­tu­tion says noth­ing about how either clause should be enforced in the event of a viol­a­tion. Congress has also not addressed this ques­tion except in limited contexts like the FGDA’s rules on foreign gifts and decor­a­tions. Nor does the Consti­tu­tion or any federal law specify just how broadly the word “emolu­ment” should be inter­preted. For example, does it cover regu­lat­ory bene­fits, as when a foreign govern­ment grants a patent to a federal offi­cial or a state govern­ment awards a tax subsidy to a busi­ness owned by the pres­id­ent? Does it cover profits from a busi­ness trans­ac­tion between a federal offi­cial and a foreign state?  foot­note54_lp8bua1 54 For the first time this year, a federal court inter­preted the defin­i­tion of “emolu­ment” and held that the term “extends to any profit, gain, or advant­age, of more than de minimis value, received by [the pres­id­ent], directly or indir­ectly, from foreign, the federal, or domestic govern­ments.” D.C. v. Trump, No. 17–1596, 2018 WL 3559027, at 23 (D. Md. July 25, 2018).

Some of these ques­tions have come up over the years (though not conclus­ively resolved) in vari­ous House and Senate Ethics Commit­tee invest­ig­a­tions of members of Congress for everything from rent­ing prop­erty to a foreign diplo­mat to accept­ing travel and other gifts from foreign govern­ments beyond what Congress itself has author­ized by law.  foot­note55_ko3u0bo 55 See Elise Viebeck, “Guam Deleg­ate May Have Viol­ated Emolu­ments Clause with Lease, Ethics Office Says,” Wash­ing­ton Post, Sept. 11, 2017, http://wapo.st/2vQQowg; John Bres­na­han, “Report: Azerbaijani Oil Company Secretly Funded 2013 Lawmaker Trip,” Politico, May 13, 2015, https://www.politico.com/story/2015/05/congress-2013-trip-azerbaijan-house-ethics-commit­tee-117907; John Bres­na­han, “Taiwan Trip Center of Roskam Probe,” Politico, July 26, 2013, https://www.politico.com/story/2013/07/peter-roskam-ethics-invest­ig­a­tion-taiwan-trip-094808; Scott Armstrong and Charles R. Babcock, “Ex-Director Informs on KCIA Action,” Wash­ing­ton Post, June 6, 1977, http://www.wash­ing­ton­post.com/archive/polit­ics/1977/06/06/ex-director-informs-on-kcia-action/de45d7d6-db72–45d0-a817–5234901d­b8b8; Asso­ci­ated Press, “Rangel and Four Others in House Invest­ig­ated over Carib­bean Travel,” New York Times, Jun. 26, 2009, https://www.nytimes.com/2009/06/26/us/polit­ics/26in­quiry.html.  The global reach of Pres­id­ent Trump’s busi­ness hold­ings (includ­ing U.S. hotels that cater to a global client base  foot­note56_os4r­w7y 56 For instance, foreign diplo­mats now frequently stay at the pres­id­ent’s Wash­ing­ton, D.C., hotel, rais­ing ques­tions about whether they are hoping to curry influ­ence or favor with the pres­id­ent. Jonathan O’Con­nell and Mary Jordan, “For Foreign Diplo­mats, Trump Hotel Is Place to Be,” Wash­ing­ton Post, Nov. 18, 2016, http://wapo.st/2fNSW6E. ) — and the prospect that future pres­id­en­tial contenders may have complex busi­ness arrange­ments of their own — has added extra urgency. Pres­id­ent Trump has already been sued in three separ­ate lawsuits for alleged viol­a­tions of both the Foreign and Domestic Emolu­ments Clauses.  foot­note57_2u8btmb 57 See supra n. 57 (deny­ing Pres­id­ent Trump’s motion to dismiss Foreign Emolu­ments Clause suit filed by District of Columbia and Mary­land); Citizens for Respons­ib­il­ity & Ethics in Wash­ing­ton (CREW) v. Trump, No. 1:17-cv-00458 (S.D.N.Y. Dec. 21, 2017) (dismiss­ing Foreign Emolu­ments Clause case due to lack of stand­ing); Richard Blumenthal, et al. v. Donald J. Trump, No. 1:17-cv-01154 (D.D.C. 2017) (pending). See also­Peter Overby, “Emolu­ments Lawsuit against Pres­id­ent Trump Allowed to Proceed,” NPR, Mar. 28, 2018, https://n.pr/2GhzbFL. Task Force member Amy Comstock Rick joined an amicus brief filed on behalf of ten former federal govern­ment ethics officers in CREW v. Trump.

Preventing Nepotism in Govert 5W Graph­ics

While these lawsuits may set new legal preced­ent relat­ing to the partic­u­lars of the pres­id­ent’s busi­ness deal­ings, they will leave many other ques­tions unanswered. But Congress has the author­ity to imple­ment consti­tu­tional safe­guards through rules that are more detailed and compre­hens­ive than the bare bones text that the Consti­tu­tion provides.  foot­note58_r6t2pj7 58 Hobby Lobby, 134 S. Ct. at 2760 (“Congress enacted RFRA in 1993 in order to provide very broad protec­tion for reli­gious liberty.”); Cf.Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721, 728(2003) (recog­niz­ing that Congress can go beyond the narrow require­ments of the 14th Amend­ment to enforce that amend­ment).

To ensure that future public offi­cials adhere to the letter and spirit of the two Emolu­ments Clauses, Congress should enact legis­la­tion that specifies in detail what is and is not prohib­ited under each clause. The meas­ure should also create a fair and compre­hens­ive scheme for enfor­cing those expect­a­tions. At a minimum, the legis­la­tion should:

  • Define which bene­fits consti­tute prohib­ited “emolu­ments.”
  • Estab­lish categor­ies of foreign emolu­ments to which Congress expressly with­holds consent (e.g., those worth over $10,000) beyond those covered by exist­ing laws like the FGDA.
  • Create a regu­lat­ory scheme for enforce­ment of both Emolu­ments Clauses, which should ideally rely on enforce­ment agen­cies like the Depart­ment of Justice and possibly the Office of Govern­ment Ethics (for civil viol­a­tions of the law).
  • Estab­lish stat­utory remed­ies for viol­a­tions, includ­ing disgorge­ment of illegal emolu­ments and crim­inal and civil penal­ties.

The Emolu­ments Clauses provide clear consti­tu­tional author­ity for these meas­ures. These consti­tu­tional provi­sions reflect the Framers’ funda­mental concern that public offi­cials, espe­cially the pres­id­ent, should put the interests of the Amer­ican people first, which reson­ates just as strongly today. Codi­fy­ing them more fully would also bene­fit current and future public offi­cials, who need clear guid­ance to help them avoid running afoul of these key consti­tu­tional constraints. Congress should ensure that the protec­tions both clauses afford are enforced in a clear, concrete and effect­ive manner.

PROPOSAL 5 
Congress should extend federal safe­guards against conflicts of interest to the pres­id­ent and vice pres­id­ent.

Conflict of interest law bars officers and employ­ees of the federal govern­ment from “parti­cip­at­ing person­ally and substan­tially” in specific govern­ment matters in which they or their imme­di­ate family members have a personal finan­cial interest has exis­ted for more than a century.  foot­note59_r9rf­srm 59 See18 U.S.C. § 208(a) (barring most “officers” and “employ­ees” of the federal govern­ment from parti­cip­at­ing “person­ally and substan­tially” in specific matters in which they, their spouse or minor child, busi­ness part­ners, or organ­iz­a­tions with which they are affil­i­ated have a “finan­cial interest”); see also“18 USC § 208: Acts affect­ing a personal finan­cial interest,” Office of Govern­ment Ethics, accessed Nov. 16, 2017, https://www.oge.gov/Web/OGE.nsf/Resources/18+U.S.C.+%C2%A7+208:+Act­s+af­fect­ing+a+per­son­al+fin­an­cial+in­terest (explain­ing that, under Section 208, an employee has “a disqual­i­fy­ing finan­cial interest . . . if there is a close causal link between a partic­u­lar Govern­ment matter . . . and any effect on the asset or other interest (direct effect) and if there is a real possib­il­ity of gain or loss as a result of . . . that matter (predict­able effect)”).  But those laws do not apply to the pres­id­ent and vice pres­id­ent.  foot­note60_agpzfnt 60 See 18 U.S.C. § 202(c) (exempt­ing the pres­id­ent, vice pres­id­ent, members of Congress and federal judges from the defin­i­tion of “officer” or “employee” in the conflict of interest stat­ute). Members of Congress and federal judges are also exempt, although they have their own ethics codes that prohibit some of the same conduct. See, e.g.,“Code of Conduct for Judi­cial Employ­ees,” at 6–9 (defin­ing conflicts of interest); “Rule XXIII – Code of Offi­cial Conduct,” included in Rules of the House of Repres­ent­at­ives, H.R. Doc. No. 114–192 (2017) (regu­lat­ing, inter alia, receipt of gifts and honor­aria); “Rule XXXVII – Conflict of Interest,” included in The Stand­ing Rules of the Senate, S. Doc. No. 113–18 (2013) (defin­ing conflicts of interest and regu­lat­ing, inter alia, outside compens­a­tion).  They should.

Federal conflict of interest law estab­lishes a minimum stand­ard of conduct. The law applies only when govern­ment offi­cials are involved in a decision relat­ing to a specific set of persons or entit­ies and only when the decision will have a “direct and predict­able” effect on offi­cials’ finan­cial interests (or those of their close family members, busi­ness part­ners, or entit­ies with which they are affil­i­ated).  foot­note61_9jrccni 61 See 5 C.F.R. § 2635.402(b) note (“If a partic­u­lar matter involves a specific party or parties, gener­ally the matter will at most only have a direct and predict­able effect[] . . . on a finan­cial interest of the employee in or with a party, such as the employ­ee’s interest by virtue of owning stock.”); Jack Maskell, Finan­cial Assets and Conflict of Interest Regu­la­tion in the Exec­ut­ive Branch, CRS Report No. R43365 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2014), 6–7 (discuss­ing recusal process and waivers).  The law does not apply to matters that involve broad poli­cy­mak­ing.  foot­note62_6iw62y4 62 5 C.F.R. § 2635.402(b)(3).  For instance, regu­la­tions issued by the Office of Govern­ment Ethics specify that govern­ment offi­cials typic­ally cannot award a contract to a company in which they have stock (other than through certain types of mutual funds). On the other hand, the offi­cials usually would be able to work on major legis­la­tion, like a tax over­haul that would favor­ably impact their own bottom line, provided it would affect other Amer­ic­ans in the same way.  foot­note63_fb9kr95 63 See 5 C.F.R. § 2635.402(b)(3) example 1 (“The Internal Revenue Service’s amend­ment of its regu­la­tions to change the manner in which depre­ci­ation is calcu­lated is not a partic­u­lar matter, nor is the Social Secur­ity Admin­is­tra­tion’s consid­er­a­tion of changes to its appeal proced­ures for disab­il­ity claimants.”).

Few would say that the pres­id­ent and vice pres­id­ent should not follow the same basic rules.  foot­note64_eq1273j 64 For example, then future Supreme Court Justice Antonin Scalia, during his time at the Depart­ment of Justice, wrote in a memo on the applic­ab­il­ity of an Exec­ut­ive Order on conflicts of interest, that “it would obvi­ously be undesir­able as a matter of policy for the Pres­id­ent or Vice Pres­id­ent to engage in conduct proscribed by” conflict of interest rules even if they did not tech­nic­ally apply. Antonin Scalia, Assist­ant Attor­ney General, Office of Legal Coun­sel, “Applic­ab­il­ity of 3 C.F.R. Part 100 to the Pres­id­ent and Vice Pres­id­ent” (offi­cial memor­andum, Wash­ing­ton, D.C.: Depart­ment of Justice, 1974), https://fas.org/irp/agency/doj/olc/121674.pdf. See also Pres­id­en­tial Conflicts of Interest Act of 2017, S. 65, 115th Cong. (2017) (requir­ing pres­id­ents and vice pres­id­ents, as well as their spouses and minor chil­dren, to put any poten­tially conflict­ing assets into a blind trust).  Congress exemp­ted them from the formal conflict of interest law based on poten­tial prac­tical and legal concerns related to the pres­id­ency’s unique role in our system of separ­a­tion of powers (which, as noted below, we do not ulti­mately find persuas­ive).  foot­note65_2n92apx 65 The Depart­ment of Justice opined in 1974 that such concerns weighed against find­ing that Congress had inten­ded to include the pres­id­ent and vice pres­id­ent in the most recent version of the conflict of interest stat­ute, which dates back to 1962. SeeLet­ter from Laurence H. Silber­man, Acting Attor­ney General, to Howard W. Cannon, Chair­man, Senate Commit­tee On Rules and Admin­is­tra­tion (Sept. 20, 1974), avail­able at https://fas.org/irp/agency/doj/olc/092074.pdf (“[T]he conflict of interest prob­lems of the Pres­id­ent and the Vice Pres­id­ent as indi­vidual persons must inev­it­ably be treated separ­ately from the rest of the exec­ut­ive branch.” (quot­ing Special Commit­tee on the Federal Conflict of Interest Laws, Conflict of Interest and Federal Service, Asso­ci­ation of the Bar of the City of New York (1960): 16–17)). Congress form­ally codi­fied the exemp­tion in 1989. 18 U.S.C. § 202(c) (amend­ing 18 U.S.C. § 202 (1989)).  Until recently, most also assumed that the public lime­light and account­ab­il­ity of the pres­id­ency would be suffi­cient to ensure that its occu­pants adhere to the same ethics stand­ards that govern other federal employ­ees and officers. It turns out they are not.

The reason these exemp­tions from ethics law for the pres­id­ent and vice pres­id­ent have received scant atten­tion is that pres­id­ents over the last four decades have volun­tar­ily complied with most of their require­ments.  foot­note66_41nx­omk 66 Walter M. Shaub, Jr., Director, U.S. Office of Govern­ment Ethics (remarks, Brook­ings Insti­tu­tion, Wash­ing­ton, D.C., Jan. 11, 2017), avail­able at https://www.brook­ings.edu/wp-content/uploads/2017/01/20170111_oge_shaub_remarks.pdf (“[E]very Pres­id­ent in modern times has taken the strong medi­cine of divestit­ure. This means OGE Direct­ors could always point to the Pres­id­ent as a model. They could also rely on the Pres­id­ent’s impli­cit assur­ance of support if anyone balked at doing what OGE asked them to do.”).  Espe­cially in the wake of Water­gate, it became common wisdom, as Pres­id­ent Reagan’s trans­ition team put it, that “even the possib­il­ity of an appear­ance of any conflict of interest in the perform­ance of his duties” could under­mine the pres­id­ent’s legit­im­acy.  foot­note67_mk0do6f 67 “Announce­ment of the Form­a­tion of a Blind Trust to Manage the Pres­id­ent’s Personal Assets,” Jan. 30, 1981, in Gerhard Peters and John T. Wool­ley, The Amer­ican Pres­id­ency Project, http://www.pres­id­ency.ucsb.edu/ws/?pid=44168.

Reining in the FBI 5W Graph­ics

And not just the pres­id­ent’s. When an offi­cial as power­ful as the pres­id­ent has a personal finan­cial interest in govern­ment decisions, there is a risk that offi­cials who report up the chain will be temp­ted to govern with an eye toward the chief exec­ut­ive’s bottom line. Taken to extremes, it can be virtu­ally impossible to discern which decisions have been infec­ted by consid­er­a­tion of a lead­er’s self-interest. Such doubts under­mine the basic integ­rity of demo­cratic governance.  foot­note68_4u0q3kc 68 See Chris­topher T. Ander­son and Yuliya V. Tver­dova, “Corrup­tion, Polit­ical Alle­gi­ances, and Atti­tudes toward Govern­ment in Contem­por­ary Demo­cra­cies,” Amer­ican Journal of Polit­ical Science 47 (2003): 91–92 (using survey data and stat­ist­ical analysis, authors demon­strate that “high levels of corrup­tion reduce citizen support for demo­cratic polit­ical insti­tu­tions across mature and newly estab­lished demo­cra­cies around the globe”); Weiner, Strength­en­ing Pres­id­en­tial Ethics Law, 5–6.

Now, of course, we have a pres­id­ent who has chosen to keep control of his far-flung busi­nesses, rais­ing the possib­il­ity of numer­ous conflicts of interest.  foot­note69_1j6morl 69 “Donald Trump’s Many, Many Busi­ness Deal­ings in 1 Map,” Time, Jan. 10, 2017, http://time.com/4629308/donald-trump-busi­ness-deals-world-map/; David A. Fahrenthold and Jonathan O’Con­nell, “Nine Ques­tions about Pres­id­ent Trump’s Busi­nesses and Possible Conflicts of Interest,” Wash­ing­ton Post, March 28, 2018, http://wapo.st/2DLYv5f; Emily Stew­art, “Trump Is ‘Def­in­itely Still Involved’ in his Hotel Busi­ness, a New Report Says,” Vox, Dec. 30, 2017, https://www.vox.com/2017/12/30/16832964/trump-busi­ness-wash­ing­ton-hotel. While voters find this distaste­ful,  foot­note70_bb6t­d6m 70 For instance, 66 percent of respond­ents to a Quin­nipiac poll said that Donald Trump should place all of his busi­ness hold­ings into a blind trust. Tim Malloy et al., U.S. Voters Approve of Obama, Disap­prove of Trump, Quin­nipiac Univer­sity National Poll Finds; Trump Should Stop Tweet­ing, Voters Say 2–1, Quin­nipiac Univer­sity, Jan. 10, 2017, 12, avail­able at https://poll.qu.edu/images/polling/us/us01102017_Utb35mky.pdf/.  his decision may embolden his successors to do the same. As a result, the time has come to extend basic safe­guards to the pres­id­ent and vice pres­id­ent by elim­in­at­ing their exemp­tion from federal conflict of interest law.

This does not mean that we must subject the pres­id­ent and vice pres­id­ent, who occupy a unique consti­tu­tional role, to the same legal require­ments as other offi­cials. For example, conflict of interest rules can bar an offi­cial from work­ing on compar­at­ively narrow legis­la­tion, like a bill to regu­late a partic­u­lar industry or to give bene­fits to a small class of people. But the duties of the chief exec­ut­ive are unique. The Consti­tu­tion gives the pres­id­ent sole author­ity to sign or veto legis­la­tion passed by Congress,  foot­note71_kec7­poz 71 U.S. Const. art. I, § 7.  and thou­sands of meas­ures make their way each year to the pres­id­ent’s desk. Rather than impose the unwieldy require­ment of an exhaust­ive conflicts check in each instance, it makes better sense to exempt the pres­id­ent and vice pres­id­ent’s parti­cip­a­tion in the legis­lat­ive process from conflict of interest regu­la­tion. The law should also expli­citly exempt any pres­id­ent or vice pres­id­ent who follows the long­stand­ing prac­tice of limit­ing his or her direct personal hold­ings to noncon­flict­ing assets and placing remain­ing invest­ments in a qual­i­fied blind trust.  foot­note72_cyef637 72 Under OGE rules, mutual funds that track major U.S. indices like the Dow and S&P 500 are not deemed to pose any conflict risk. See 5 C.F.R. § 2634.310. Pres­id­ent Barack Obama, for instance, kept much of his wealth in such assets during his time in office, and it makes sense to allow future pres­id­ents to do the same. See Michael Galvis, “Barack Obama’s Net Worth on his 55th Birth­day,” Time, Aug. 4, 2016, http://time.com/money/4439729/barack-obama-net-worth-55th-birth­day/.

Finally, the law should specify that the only remedy where the pres­id­ent or vice pres­id­ent has a conflict of interest is to sell off his interest in the asset that created the conflict. Typic­ally, an offi­cial with a conflict of interest can address the conflict either through such divestit­ure or through recusal (mean­ing form­ally refrain­ing from parti­cip­a­tion in the matter).  foot­note73_wuzw6du 73 Typic­ally, recusal is docu­mented in a memo or other commu­nic­a­tion to an agency’s Desig­nated Agency Ethics Offi­cial (DAEO) or, for White House staff, a memo to the White House coun­sel.  But pres­id­en­tial recusal could be disrupt­ive to exec­ut­ive branch oper­a­tions.  foot­note74_mzbxqbz 74 See Letter from Laurence H. Silber­man, Acting Attor­ney General, to Howard W. Cannon, Chair­man, Senate Commit­tee On Rules and Admin­is­tra­tion (endors­ing view that apply­ing conflict of interest stat­ute to the pres­id­ent would “disable him from perform­ing some of the func­tions prescribed by the Consti­tu­tion”).  A divestit­ure require­ment avoids that risk and is the best approach for address­ing the relat­ively narrow circum­stances where the pres­id­ent or vice pres­id­ent have conflicts of interest.  foot­note75_08bk6jt 75 As a prac­tical matter, one way for the pres­id­ent or vice pres­id­ent to avoid having to divest would be to refrain from involve­ment in matters where they have a finan­cial interest. Under this proposal, the decision as to whether to do so would remain up to them. In the event a pres­id­ent chooses to avoid parti­cip­a­tion in a matter that raises a possible conflict, divestit­ure would remain an option if his parti­cip­a­tion later proved neces­sary.

The need for reas­on­able exemp­tions does not negate the need for the pres­id­ent and vice pres­id­ent to be subject, broadly speak­ing, to the same laws as the millions of federal employ­ees who work under them.

To that end, Congress should pass legis­la­tion that, at a minimum:

  • Elim­in­ates the blanket exemp­tion to exist­ing federal conflict of interest law for the pres­id­ent and vice pres­id­ent.
  • Sets forth reas­on­able and appro­pri­ate exemp­tions, includ­ing for conflicts arising from the pres­id­ent’s role in propos­ing, sign­ing, or veto­ing legis­la­tion, and the vice pres­id­ent’s role in presid­ing over and cast­ing tie-break­ing votes in the Senate.
  • Exempts any pres­id­ent or vice pres­id­ent whose hold­ings are limited to noncon­flict­ing assets or are placed in a qual­i­fied blind trust.
  • Specifies that divest­ment from the relev­ant asset is the only remedy in cases where the pres­id­ent or vice pres­id­ent has a conflict of interest.

Several propos­als to subject the pres­id­ent and vice pres­id­ent to conflict of interest law are currently pending before Congress.  foot­note76_r570ihc 76 See, e.g.,Pres­id­en­tial Conflicts of Interest Act of 2017, S. 65, 115th Cong. (2017); Pres­id­en­tial Conflicts of Interest Act of 2017, H.R.371, 115th Cong. (2017); We the People Demo­cracy Reform Act of 2017, S. 1880, 115th Cong. (2017).  They follow a long tradi­tion of bipar­tis­an­ship on ethics law  foot­note77_52cs16c 77 Both the Ethics in Govern­ment Act of 1978 and the crim­inal conflicts of interest stat­ute, 18 U.S.C. § 208, passed with strong bipar­tisan support. Senate Vote #245, “To Pass S. 555,” 95th Cong. (1978), avail­able at https://www.govtrack.us/congress/votes/95–1977/s245; House Vote #1500, “To Agree to the Confer­ence Report on S. 555, The Ethics in Govern­ment Act of 1978,” 95th Cong. (1978), avail­able at https://www.govtrack.us/congress/votes/95–1978/h1500. See also“Congress Amends Conflict-of-Interest Laws,” CQ Almanac, 18th ed. (Wash­ing­ton, D.C.: Congres­sional Quarterly, 1962) (the Kennedy and Eisen­hower admin­is­tra­tions both support­ing a crim­inal conflict of interest stat­ute).  as well as a shared under­stand­ing that the pres­id­ent and vice pres­id­ent, despite their unique roles in our system of govern­ment, are not above the law.

While Congress in the past has taken the view that there are prac­tical and consti­tu­tional hurdles to taking such a step, we do not find this view persuas­ive. The most common objec­tion raised is that the pres­id­ent cannot be subject to conflict of interest law because it is impossible for him to recuse from any matter under his author­ity as the head of the exec­ut­ive branch.  foot­note78_w6cmk5j 78 See Letter from Laurence H. Silber­man, Acting Attor­ney General to Howard W. Cannon, Chair­man, Senate Commit­tee On Rules and Admin­is­tra­tion (endors­ing the view that apply­ing conflict of interest stat­ute to the pres­id­ent would “disable him from perform­ing some of the func­tions prescribed by the Consti­tu­tion”). The other objec­tion that is some­times raised is that making the pres­id­ent and vice pres­id­ent subject to conflict of interest law would amount to an uncon­sti­tu­tional qual­i­fic­a­tion on their offices. See id. The Consti­tu­tion sets forth specific qual­i­fic­a­tions for these offices (natural born citizens at least 35 years old), U.S. Const. art. II, § 1, cl. 5, as it does for Congress, U.S. Const. art. I, § 2, cl. 2 (House of Repres­ent­at­ives); U.S. Const. art. I, § 3, cl. 3 (Senate); other qual­i­fic­a­tions are disal­lowed absent a separ­ate consti­tu­tional amend­ment. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (hold­ing that state consti­tu­tional prohib­i­tion of the name of an other­wise-eligible candid­ate for Congress from appear­ing on the general elec­tion ballot, if that candid­ate has already served three terms in the House of Repres­ent­at­ives or two terms in the Senate, viol­ates the Qual­i­fic­a­tions Clause of the Consti­tu­tion for members of the House of Repres­ent­at­ives). But making the pres­id­ent and vice pres­id­ent subject to the same ethical rules as other offi­cials does not amount to impos­i­tion of an addi­tional “qual­i­fic­a­tion” on either office any more than subject­ing him or her to other laws barring egre­gious offi­cial miscon­duct like bribery or obstruc­tion of justice does.  But even if that is true,  foot­note79_iqst3om 79 There is reason to believe that a pres­id­ent can indeed recuse himself from a partic­u­lar matter. Recusal means refrain­ing from active involve­ment in the matter, not giving up all legal respons­ib­il­ity. Stephen D. Potts, Director, “Recusal Oblig­a­tion and Screen­ing Arrange­ments” (offi­cial memor­andum, Wash­ing­ton, D.C.: Office of Govern­ment Ethics, 1999), http://webapp1.dlib.indi­ana.edu/virtual_disk_library/index.cgi/4248912/FID265/DAEO­GRAM/99/Do99018.pdf. Given that the pres­id­ent already does not actu­ally parti­cip­ate in the vast major­ity of exec­ut­ive branch matters, some have argued that there is no consti­tu­tional bar to requir­ing him to recuse in many instances. See, e.g., Weiner, Strength­en­ing Pres­id­en­tial Ethics Law; see alsoD­aphna Renan, “Pres­id­en­tial Norms and Article II,” Harvard Law Review 131 (2018): 2210–15, avail­able at https://harvard­lawre­view.org/wp-content/uploads/2018/06/2187–2282_Online.pdf (discuss­ing prac­tices and norms to which pres­id­ents and exec­ut­ive branch agen­cies have conformed to prevent the pres­id­ent’s direct involve­ment in specific enforce­ment matters).  the proposal here does not require recusal. Sale of assets is also a common means of managing conflicts of interest in the public sector.  foot­note80_jz32kif 80 See Managing Conflict of Interest in the Public Sector: A Toolkit, Organ­iz­a­tion for Economic Cooper­a­tion and Devel­op­ment, 2005, avail­able at https://www.oecd.org/gov/ethics/49107986.pdf  Already for decades, pres­id­ents have volun­tar­ily divested from most of their assets that could give rise to even the appear­ance of conflicts. And they aren’t the only ones: Many other high-rank­ing federal offi­cials are also required to divest from assets that would create insur­mount­able conflicts of interest relat­ing to their core respons­ib­il­it­ies.  foot­note81_x9uk59m 81 See, e.g., 5 C.F.R § 7501.104(a) (detail­ing certain prohib­ited assets and trans­ac­tions for even high-rank­ing Depart­ment of Hous­ing and Urban Devel­op­ment employ­ees). See also 5 C.F.R § 3501.103(b) (detail­ing certain prohib­ited land or natural resource interests and trans­ac­tions for high-rank­ing offi­cials in the Depart­ment of the Interior).  Simil­arly, it is not unreas­on­able to require the pres­id­ent to divest in situ­ations where there is a clear risk that the unique powers of his office could be used for personal gain.

Such a require­ment would not offend the Consti­tu­tion, which permits Congress to place restric­tions on the pres­id­ent where there is “an over­rid­ing need to promote object­ives within the consti­tu­tional author­ity of Congress.”  foot­note82_02hok56 82 Nixon v. Admin­is­trator of General Services, 433 U.S. 425, 443 (1977). Guard­ing against offi­cial self-deal­ing, which the Supreme Court has called “an evil which endangers the very fabric of a demo­cratic soci­ety,”  foot­note83_4nl4mun 83 United States v. Missis­sippi Valley Gener­at­ing Co., 364 U.S. 520, 562 (1961).  is surely one such object­ive. Congress should prevent the use of the pres­id­ency for personal gain, just as it prohib­its the chief exec­ut­ive from enga­ging in other kinds of offi­cial miscon­duct.  foot­note84_m2dp8pt 84 For example, most comment­at­ors agree that the pres­id­ent can be punished for obstruc­tion of justice, at least once he or she leaves office. See Daniel J. Hemel and Eric A. Posner, “Pres­id­en­tial Obstruc­tion of Justice,” Public Law and Legal Theory Work­ing Papers 665 (2017): 5, avail­able at https://chica­goun­bound.uchicago.edu/cgi/view­con­tent.cgi?article=2115&context=public_law_and_legal_theory (“[I]f the pres­id­ent inter­feres with an invest­ig­a­tion because he worries that it might bring to light crim­inal activ­ity by himself, his family, or his top aides—and not for reas­ons related to national secur­ity or faith­ful execu­tion of federal law—then he acts corruptly, and thus crim­in­ally.”); Sean Illing, “Trump’s Lawyer: The Pres­id­ent Can’t Obstruct Justice. 13 Legal Experts: Yes, He Can,” Vox, Jan. 5, 2018, https://www.vox.com/2017/12/4/16733422/donald-trump-new-york-times-sessions-russia-mueller-probe; Benjamin Wittes, “The Flaw in Trump’s Obstruc­tion-of-Justice Defense,” The Atlantic, June 4, 2018, https://www.theat­lantic.com/polit­ics/archive/2018/06/even-the-pres­id­ent-can-obstruct-justice/561935/ (arguing that where pres­id­ent’s “allegedly obstruct­ive action was taken prov­ably outside the contours of the pres­id­ent’s oath office and his take-care clause oblig­a­tions,” obstruc­tion stat­utes should apply).

Related Issues: Pres­id­en­tial conflicts of interest are not the only area of ethics law in need of reform. Members of Congress are also exempt from federal conflict of interest law,  foot­note85_28odyot 85 18 U.S.C. § 202(c)  and congres­sional conflicts are also an endur­ing prob­lem. Members of Congress are bound by certain ethics rules, but those have far fewer teeth than the laws govern­ing most federal officers and employ­ees.  foot­note86_3qcir06 86 Meredith McGe­hee and Willian Gray, The Ethics Blind Spot, Issue One, 2018, avail­able at https://www.issueone.org/wp-content/uploads/2018/02/Ethics-Blind-Spot-Final.pdf (explain­ing that the Office of Congres­sional Ethics lacks subpoena power and requires reau­thor­iz­a­tion every new Congress).  Many lawmakers take volun­tary steps to limit their personal invest­ments and avoid any appear­ance of bias, but others do not.  foot­note87_g0k0qzz 87 Maggie Severns, “Reck­less Stock Trad­ing Leaves Congress Rife with Conflicts,” Politico, May 14, 2017, https://www.politico.com/story/2017/05/14/congress-stock-trad­ing-conflict-of-interest-rules-238033.  In recent years, for instance, there have been many reports of members of Congress enga­ging in inap­pro­pri­ate stock trad­ing involving indus­tries under the juris­dic­tion of commit­tees on which those members sit.  foot­note88_pii8geu 88 Id. (report­ing that 28 House members and six senat­ors each traded more than 100 stocks in the past two years).  Others have accep­ted ques­tion­able travel and other gifts from foreign govern­ments.  foot­note89_3mu1j3x 89 See Viebeck, “Guam Deleg­ate May Have Viol­ated Emolu­ments Clause with Lease, Ethics Office Says”; Bres­na­han, “Report: Azerbaijani Oil Company Secretly Funded 2013 Lawmaker Trip”; Bres­na­han, “Taiwan Trip Center of Roskam Probe”; Armstrong and Babcock, “Ex-Director Informs on KCIA Action”; Asso­ci­ated Press, “Rangel and Four Others in House Invest­ig­ated Over Carib­bean Travel.” Some members have even gone to prison for bribery and other offi­cial miscon­duct span­ning many years.  foot­note90_5r1gtpq 90 See, e.g., Jerry Markon, “Ex-Rep Jeffer­son (D-La.) Gets 13 Years in Freezer Cash Case,” Wash­ing­ton Post, Nov. 14, 2009, http://www.wash­ing­ton­post.com/wp-dyn/content/article/2009/11/13/AR2009111301266.html; “Former Ohio Congress­man Sentenced to Eight Years in Prison,” PBS News Hour, July 30, 2002, https://www.pbs.org/news­hour/polit­ics/polit­ics-july-dec02-trafic­ant_07–30; Asso­ci­ated Press, “3-year prison term for Rick Renzi,” Politico, Oct. 28, 2013, https://www.politico.com/story/2013/10/rick-renzi-prison-sentence-098963.

Such scan­dals suggest that stronger legal safe­guards may be needed. That could include making members of Congress subject to conflict of interest law, requir­ing them to divest from certain assets, or simply provid­ing for better enforce­ment of exist­ing House and Senate rules.

Congress should also consider ways to lighten the regu­lat­ory burden on the many federal officers and employ­ees who must comply with a much stricter regime of restric­tions than elec­ted offi­cials. They must follow rules govern­ing everything from who can take them to lunch to whether they can be paid for teach­ing a class at their local community center.  foot­note91_42kiakw 91 See 5 C.F.R. § 2635.807 (prevent­ing federal employ­ees from receiv­ing outside compens­a­tion for teach­ing, speak­ing or writ­ing that relates to the employ­ee’s offi­cial duties). See also “Gifts from Outside Sources,” Office of Govern­ment Ethics, last modi­fied Apr. 11, 2017, accessed Aug. 12, 2018, https://www.oge.gov/web/oge.nsf/Gifts%20and%20Pay­ments/8CEAAC03A29F­DE9C85257E96006364F8?open­doc­u­ment.  Moreover, absent a waiver, they are subject to the full force of conflict of interest law even if the actual finan­cial interest in ques­tion is negli­gible, like a single share of stock in a regu­lated industry. Schol­ars have criti­cized such heavy regu­la­tion as too strict,  foot­note92_45uq2jg 92 See, e.g., Kath­leen Clark, “Do We Have Enough Ethics in Govern­ment Yet? An Answer from the Fidu­ciary Theory,” Univer­sity of Illinois Law Review 57 (1996): 63, avail­able at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2054648 (conclud­ing that “many exec­ut­ive branch restric­tions are too strict”); Alfred S. Neely IV, Ethics-In-Govern­ment Laws: Are They Too “Ethical”?,Amer­ican Enter­prise Insti­tute, 1984, avail­able at http://www.aei.org/public­a­tion/ethics-in-govern­ment-laws-are-they-too-ethical/ (call­ing for reforms to, inter alia, rules regard­ing finan­cial disclos­ure, divest­ment, and outside compens­a­tion); Thomas D. Morgan, “Appro­pri­ate Limits on Parti­cip­a­tion by a Former Agency Offi­cial in Matters Before an Agency,” Duke Law Journal 1980, no. 1 (1980), avail­able at https://schol­ar­ship.law.duke.edu/cgi/view­con­tent.cgi?article=2730&context=dlj (discuss­ing diffi­culties and disin­cent­ives created by federal employee ethics laws). with real and substan­tial burdens on ordin­ary federal employ­ees. A full ethics reform pack­age should include meas­ures to lighten these burdens for the millions of men and women in the rank-and-file federal work­force, where appro­pri­ate.

The Task Force expects to take up these and other related issues in its next report.

Ensure that Offi­cials Are Held Account­able Where Appro­pri­ate 

Along with changes to actual legal require­ments, effect­ive enforce­ment is neces­sary to prevent offi­cial self-deal­ing and abuse of power. No rule enacted by Congress will have any effect without mean­ing­ful action to ensure legal account­ab­il­ity. Any enforce­ment mech­an­ism should be even-handed and effect­ive. Enforce­ment actions must be propor­tional to the offense, and the rights of those alleged to have commit­ted miscon­duct must be protec­ted. Unfor­tu­nately, our current ethics regime is defi­cient on both counts: there is no inde­pend­ent body dedic­ated primar­ily to ethics enforce­ment, and those wrong­fully accused of viol­a­tions outside of the formal process have no way to clear their names. Congress should rectify this.

PROPOSAL 6 
Congress should reform the Office of Govern­ment Ethics so that it can better enforce federal ethics laws. 

The Office of Govern­ment Ethics (OGE) is the only federal agency primar­ily devoted to govern­ment ethics, and the logical choice for an inde­pend­ent body to handle day-to-day enforce­ment of ethics rules. Created in the wake of Water­gate to improve the uniform applic­a­tion of federal ethics rules across the exec­ut­ive branch, OGE’s primary func­tion is to inter­pret and promote compli­ance with federal conflict of interest laws, gift restric­tions, limits on outside employ­ment, and related safe­guards.  foot­note93_p0c293n 93 Ethics in Govern­ment Act, 5 U.S.C. App. §§ 401–08 (1978).  While its director is a pres­id­en­tial appointee, the role has usually been filled by a nonpar­tisan expert, includ­ing under the current admin­is­tra­tion.  foot­note94_h1ncn1e 94 See Peter Overby, “Trump’s Choice for Ethics Chief Wins Praise as ‘Some­body Who Plays it by the Book,’” NPR, Feb. 9, 2018, https://www.npr.org/2018/02/09/584394977/trumps-choice-for-new-ethics-chief-wins-praise-some­body-who-plays-it-by-the-book. This was a continu­ation of a long tradi­tion. See, e.g., John A. Rohr, “Bureau­cratic Moral­ity in the United States,” Inter­na­tional Polit­ical Science Review 9 (1988): 174 (noting that Ronald Reagan kept on his Demo­cratic prede­cessor’s OGE Director to avoid the appear­ance of polit­ical influ­ence).  No other federal agency simil­arly combines a tradi­tion of nonpar­tis­an­ship with compar­able expert­ise in govern­ment ethics.

As currently configured, OGE is not equipped to serve as an effect­ive, inde­pend­ent enforce­ment body. While it has developed an extens­ive body of regu­la­tions and other guid­ance, its role has been primar­ily advisery. The office has no author­ity to invest­ig­ate alleged viol­a­tions that come to its atten­tion and very limited abil­ity to compel a remedy for even the most obvi­ous viol­a­tions.  foot­note95_y7uocqm 95 The Ethics in Govern­ment Act does give OGE the power to “order correct­ive action” when it discov­ers an ethical viol­a­tion but does not explain what that might look like or how OGE can enforce its own orders. 5 U.S.C. App. § 402(b)(9). There is no record of the agency exer­cising this author­ity. See Alex Guillén, “Ethics Office Weighs ‘Cor­rect­ive Action’ for Pruitt,” Politico, June 15, 2018, https://www.politico.com/story/2018/06/15/ethics-office-invest­ig­a­tion-scott-pruitt-scan­dals-1425413.

OGE also is not truly inde­pend­ent. Although its director serves for a fixed five-year term and is usually a nonpar­tisan expert, there appears to be no stat­utory safe­guard against a pres­id­ent, upset by OGE’s pursuit of ethical issues in his or her admin­is­tra­tion, remov­ing the director without cause.  foot­note96_1fmuuga 96 5 U.S.C. App. § 401 (contain­ing appoint­ment proced­ure and term length for director, but no for-cause removal provi­sion).  This is less protec­tion than that accor­ded other import­ant watch­dog agen­cies, includ­ing the Secur­it­ies Exchange Commis­sion and Federal Elec­tion Commis­sion, whose lead­ers the pres­id­ent may gener­ally remove only for good cause (e.g., neglect of duty or miscon­duct in office).  foot­note97_uhc698e 97 See Free Enter­prise Fund v. Public Co. Account­ing Over­sight Bd., 561 U.S. 477, 487 (2010) (“The parties agree that the Commis­sion­ers cannot them­selves be removed by the Pres­id­ent except [for] . . . ‘inef­fi­ciency, neglect of duty, or malfeas­ance in office,’ . . . and we decide the case with that under­stand­ing.”) (internal cita­tions omit­ted); Federal Elec­tion Comm’n v. NRA Polit­ical Victory Fund, 6 F.3d 821, 826 (D.C. Cir. 1993) (“The [Federal Elec­tion] Commis­sion suggests that the Pres­id­ent can remove the commis­sion­ers only for good cause, which limit­a­tion is implied by the Commis­sion’s struc­ture and mission as well as the commis­sion­ers’ terms. We think the Commis­sion is likely correct[] . . . .”).  As a further guar­an­tee of inde­pend­ence, such agen­cies also typic­ally have the abil­ity to commu­nic­ate directly with Congress, includ­ing submit­ting their own budget requests, rather than going through the White House.  foot­note98_572atcf 98 SeeJim Jukes, Assist­ant Director for Legis­lat­ive Refer­ence, “Agen­cies with Legis­lat­ive and Budget ‘Bypass’ Author­it­ies – Inform­a­tion,” (offi­cial memor­andum, Wash­ing­ton, D.C.: Office of Manage­ment and Budget, 2001), https://www.citizen.org/sites/default/files/ombdoc­u­ment1.pdf.

Finally, OGE also lacks the neces­sary resources to perform an expan­ded over­sight role. With approx­im­ately 75 employ­ees and a $12 million budget, OGE would not have the capa­city to hire the qual­i­fied attor­neys, invest­ig­at­ors, and other staff needed to effect­ively enforce ethics rules across the sprawl­ing exec­ut­ive branch.

These short­com­ings have not received the atten­tion they deserve. Until recently, volun­tary adher­ence to OGE’s guid­ance has long been the expect­a­tion at the highest levels in both Demo­cratic and Repub­lican admin­is­tra­tions. Every pres­id­ent since OGE was created has direc­ted cabinet members and other close aides to follow the agency’s instruc­tions to recuse, sell prop­erty, or take other steps to avoid conflicts of interest, and to direct their subor­din­ates to do the same.  foot­note99_1x80uen 99 Supra n. 69.  Pres­id­ents and vice pres­id­ents have also sought OGE approval for their own volun­tary asset plans, which set the tone for their admin­is­tra­tions.  foot­note100_40h4s4k 100 Id.

To be sure, there have always been cracks in this façade. At times, OGE has been unable or unwill­ing to hold offi­cials who were determ­ined to bend or break the rules account­able.  foot­note101_6akt­db7 101 See, e.g.,Clif­ford D. May, “Wash­ing­ton Talk: Office of Govern­ment Ethics; Taking Lots of Heat from and about Meese,” New York Times, July 8, 1987, avail­able at https://www.nytimes.com/1987/07/08/us/wash­ing­ton-talk-office-govern­ment-ethics-taking-lots-heat-about-meese.html (OGE came under fire in past decades for its fail­ure to suffi­ciently scru­tin­ize Attor­ney General Edwin Meese’s finan­cial disclos­ures, which contained several notable omis­sions; crit­ics argued that greater scru­tiny and stronger enforce­ment of the rules could have avoided the Wedtech scan­dal, in which Meese was accused of bring­ing improper influ­ence to bear on behalf of a contractor to which he had finan­cial ties).  But today, the admin­is­tra­tion does not even make a show of follow­ing OGE’s guid­ance in high-profile cases  foot­note102_og0zwhq 102 In one notable example, after pres­id­en­tial coun­selor Kelly­anne Conway urged Amer­ic­ans to purchase Ivanka Trump-branded products, she was merely “counseled,” though the OGE Director recom­men­ded more force­ful discip­lin­ary action consist­ent with the norm under prior admin­is­tra­tions. Matt Ford, “Ethics Office: ‘Dis­cip­lin­ary Action Is Warran­ted’ Against Kelly­anne Conway,” The Atlantic, Feb. 14, 2017, https://www.theat­lantic.com/polit­ics/archive/2017/02/kelly­anne-conway-ethics-discip­line/516729/; see also Matea Gold, “Power Struggle Intens­i­fies between White House and Ethics Office,” Wash­ing­ton Post, May 22, 2017, http://wapo.st/2qIoGBW.  and has publicly ques­tioned whether most federal ethics rules even apply to White House aides, citing an unper­suas­ive legal tech­nic­al­ity.  foot­note103_flquz7r 103 See Letter from Stefan Passantino, Deputy Coun­sel to the Pres­id­ent, Compli­ance and Ethics, to Walter M. Shaub, Jr., Director, U.S. Office of Govern­ment Ethics (Feb. 28, 2017), 1, avail­able at https://demo­crats-over­sight.house.gov/sites/demo­crats.over­sight.house.gov/files/docu­ments/Over­sight%20Re­sponse%20to%20Shaub%20re%20KAC.PDF. The Passantino letter notes the OGE is stat­utor­ily author­ized to issue regu­la­tions and other guid­ance with respect to “agency” employ­ees, and that the Exec­ut­ive Office of the Pres­id­ent is not tech­nic­ally an agency.

This is not sustain­able. Like any other set of rules, ethics stand­ards will never be truly effect­ive, espe­cially at the highest levels, unless they have real teeth. That means enfor­cing them consist­ently and not just in the most egre­gious cases.

Currently, enforce­ment of conflict of interest law and ethics stand­ards is left primar­ily to the pres­id­ent and thou­sands of other admin­is­tra­tion offi­cials who have super­vis­ory author­ity to reprim­and or fire subor­din­ates who break ethics rules. This decent­ral­ized system is prone to incon­sist­ency  foot­note104_ew1zahr 104 See Letter from Campaign Legal Center, Common Cause, Demo­cracy 21, Public Citizen, U.S. PIRG, to Richard M. Thomas, Asso­ci­ate General Coun­sel, Office of Govern­ment Ethics (Nov. 14, 2011), 5, avail­able at https://www.citizen.org/sites/default/files/oge-gift-comments.pdf (discuss­ing incon­sist­ent applic­a­tion of the gift rule through­out the ranks of the civil service).  and can break down entirely in an admin­is­tra­tion that simply does not view compli­ance with these rules as a prior­ity.

Where a conflict of interest is seri­ous enough to warrant crim­inal or civil penal­ties, the Depart­ment of Justice has the power to pursue enforce­ment in federal court (includ­ing on a refer­ral from OGE).  foot­note105_y5u662x 105 See 18 U.S.C. § 216(b). For a recent example, see “Acting Ethics Chief Flags Trump Finan­cial Disclos­ure Form for Rod Rosen­stein,” CBS News, May 16, 2018, https://www.cbsnews.com/news/trumps-finan­cial-disclos­ure-form-released-by-ethics-office-live-updates/.  But the depart­ment has rarely made such cases a prior­ity. In 2016, for example, it appears to have secured (accord­ing to data collec­ted by OGE) only seven crim­inal convic­tions and one civil settle­ment under the federal conflict of interest stat­ute and laws under OGE’s purview.  foot­note106_zua4pjp 106 See David J. Apol, “2016 Conflict of Interest Prosec­u­tion Survey” (offi­cial memor­andum, Wash­ing­ton, D.C.: Office of Govern­ment Ethics, 2017, https://www.oge.gov/web/OGE.nsf/0/FEB69F94825247F2852581750045FE2B/$FILE/FINAL%202016%20Pro­sec­u­tion%20Sur­vey%20LA.pdf (detail­ing conflict of interest enforce­ment actions taken against federal employ­ees in 2016). In 2015 and 2016 combined, there were only 12 prosec­u­tions for viol­a­tions of the federal conflict of interest stat­ute at all. Id. Walter M. Shaub, “2015 Conflict of Interest Prosec­u­tion Survey” (offi­cial memor­andum, Wash­ing­ton, D.C.: Office of Govern­ment Ethics, 2016), https://www.oge.gov/Web/OGE.nsf/0/42DCFE53F8D2211F85257FF­D0058D­B04/$FILE/Clean%20FI­NAL%202015%20Pros­euc­tion%20Sur­vey%207_26_16.pdf.

The exist­ing frame­work for admin­is­ter­ing and enfor­cing federal ethics rules in the exec­ut­ive branch does not provide suffi­cient account­ab­il­ity. A polit­ic­ally sens­it­ive issue like ethics needs a regu­lator with some inde­pend­ence who has the power to formu­late broad policy through regu­la­tions and pursue civil enforce­ment actions in seri­ous cases that do not rise to the level of crim­inal miscon­duct but still need to be addressed in the interest of deterrence.  foot­note107_ad5l4jq 107 SeeNuno Garoupa and Fernando Gomez-Pomar, “Punish Once or Punish Twice: A Theory of the Use of Crim­inal Sanc­tions in Addi­tion to Regu­lat­ory Penal­ties,” Amer­ican Law and Econom­ics Review 6 (2004): 415 (civil enforce­ment is often more effect­ive than crim­inal enforce­ment given the lower burden of proof and greater like­li­hood of a sanc­tion); see also Celena Vinson and Julie Coun­tiss, “The Power of Civil Enforce­ment,” Amer­ican Journal of Crim­inal Law 43 (2015) (discuss­ing the util­ity of civil injunc­tions and other enforce­ment mech­an­isms to prevent gang activ­ity, pros­ti­tu­tion, and the illegal sale of alco­hol); V.S. Khanna, “Corpor­ate Crim­inal Liab­il­ity: What Purpose Does It Serve?” Harvard Law Review 109 (1996): 1532 – 33 (find­ing that there are very limited circum­stances in which corpor­ate crim­inal liab­il­ity is more socially desir­able than civil liab­il­ity). Even with OGE as the primary civil enfor­cer of ethics laws, the Depart­ment of Justice would continue to have sole juris­dic­tion over crim­inal matters. Over­lap­ping respons­ib­il­it­ies of this sort are common in the federal govern­ment. Agen­cies will typic­ally resolve any conflicts (such as between ongo­ing crim­inal and civil invest­ig­a­tions) through informal commu­nic­a­tions or by draft­ing a formal cooper­a­tion agree­ment, either of which could be used here.

OGE already has primary rule­mak­ing author­ity for ethics matters in the exec­ut­ive branch. Its expert­ise is widely acknow­ledged. The agency’s director, while not protec­ted against removal, custom­ar­ily serves a term of five years,  foot­note108_k4hc5d1 108 5 U.S.C. App. § 401.  span­ning multiple pres­id­en­tial terms, which helps to foster inde­pend­ence. There is also a tradi­tion of profes­sion­al­ism at OGE, evid­enced by the appoint­ment of direct­ors with signi­fic­ant ethics exper­i­ence and nonpar­tisan creden­tials.  foot­note109_z4jojee 109 Supra n. 97. It there­fore makes sense for OGE to take on this crit­ic­ally import­ant enforce­ment role.

To ensure proper account­ab­il­ity for ethical stand­ards at all levels of the exec­ut­ive branch, Congress should pass legis­la­tion giving OGE a meas­ure of formal inde­pend­ence from the pres­id­ent akin to that of other inde­pend­ent regu­lat­ors. The agency should also have the full range of civil enforce­ment tools that are at the disposal of other watch­dog bodies, along with suffi­cient safe­guards to protect against the politi­ciz­a­tion of invest­ig­a­tions and bureau­cratic over­reach. Finally, Congress should take other steps to ensure more uniform applic­a­tion of ethical stand­ards across the exec­ut­ive branch.

To insu­late rule­mak­ing and civil enforce­ment processes on ethics matters from undue polit­ical inter­fer­ence, legis­la­tion passed by Congress should:

  • Specify that the pres­id­ent cannot remove OGE’s director during his or her stat­utory term except for good cause, such as neglect of duty or miscon­duct in office. Such limit­a­tions on removal are the most import­ant way to ensure agency inde­pend­ence. The process of nomin­at­ing and confirm­ing new direct­ors and ongo­ing congres­sional over­sight can be used to ensure that the director remains polit­ic­ally account­able to elec­ted lead­ers.
  • Empower OGE to commu­nic­ate directly with Congress. Most agen­cies must go through the White House to submit budget requests or other­wise commu­nic­ate with Congress, limit­ing their abil­ity to pursue goals that do not align with the prior­it­ies of the admin­is­tra­tion. To ensure a meas­ure of autonomy from the pres­id­ent, OGE should, like other inde­pend­ent agen­cies, be permit­ted to submit its own budget estim­ates, substant­ive reports, and legis­lat­ive recom­mend­a­tions without White House approval.  foot­note110_y37q0fu 110 For instance, the Federal Elec­tion Commis­sion submits its budget to Congress and OMB concur­rently, rather than using OMB as an inter­me­di­ary. See Fiscal Year 2018 Congres­sional Budget Justi­fic­a­tion (Wash­ing­ton, D.C.: Federal Elec­tion Commis­sion, 2017). https://www.fec.gov/resources/cms-content/docu­ments/FEC_FY_2018_Congres­sional_Budget_Justi­fi­ci­ation.pdf.

To ensure effect­ive enforce­ment of ethics rules, this legis­la­tion should also:

  • Grant OGE power to initi­ate and conduct invest­ig­a­tions of alleged ethics viol­a­tions in the exec­ut­ive branch on refer­ral from another govern­ment body or on its own initi­at­ive. To prevent abuse in this polit­ic­ally sens­it­ive area, the agency’s invest­ig­at­ive power should be constrained through best prac­tices used at other inde­pend­ent watch­dog bodies. Among other things, the legis­la­tion should require the director to sign off on all subpoenas to compel testi­mony or the produc­tion of docu­ments; require agency staff to keep pending invest­ig­a­tions strictly confid­en­tial (with crim­inal penal­ties for viol­at­ors); and specify that all decisions to invest­ig­ate must be suppor­ted by a writ­ten determ­in­a­tion approved by the director that there are reas­on­able grounds to believe a viol­a­tion may have occurred.  foot­note111_06tf7qn 111 Similar require­ments are contained in the stat­ute author­iz­ing the Federal Elec­tion Commis­sion to invest­ig­ate poten­tial viol­a­tions of campaign finance law. See 52 U.S.C. §§ 30107(a)(3), 30109(a)(2), 30109(a)(12). Of course, the FEC is an evenly-divided commis­sion that is prone to grid­lock. These safe­guards would be far more import­ant at a watch­dog agency headed by a single director.
  • Grant the OGE director power to bring civil enforce­ment actions in federal court and seek other correct­ive action where the director has determ­ined in writ­ing that there is prob­able cause to believe a viol­a­tion occurred. Almost all inde­pend­ent watch­dog agen­cies have author­ity to either impose penal­ties and other sanc­tions or seek them in court. For an agency to assess major fines or hand out other punish­ment itself requires the creation of elab­or­ate internal proced­ures to protect the due process rights of alleged wrong­do­ers.  foot­note112_3t2dgpd 112 See 5 U.S.C. § 556(d) (outlining the proced­ural protec­tions in place for those facing sanc­tion in an agency adju­dic­a­tion); see also Richard­son v. Perales, 402 U.S. 389, 401 (1971) (“[P]roced­ural due process is applic­able to the adju­dic­at­ive admin­is­trate proceed­ing involving ‘the differ­ing rules of fair play, which through the years, have become asso­ci­ated with differ­ent types of proceed­ings.’”); Muset v. Ishi­maru, 783 F. Supp. 2d 360 (E.D.N.Y. 2011) (hold­ing that due process requires that an agency adju­dic­ator give those being punished notice and an oppor­tun­ity to be heard before enfor­cing the punish­ment).  It makes more sense for an agency of OGE’s size to instead bring enforce­ment actions for civil or injunct­ive relief in federal court. Cases where the only sanc­tion sought is a person­nel action like dismissal could be brought to the Merit Systems Protec­tion Board, the body that adju­dic­ates employ­ment issues for federal work­ers.
  • Create an OGE Enforce­ment Divi­sion. Enfor­cing rules is very differ­ent from writ­ing them or provid­ing informal guid­ance. These func­tions should not be entrus­ted to the same staffers. The best approach would be for OGE, like other watch­dog agen­cies, to have a separ­ate enforce­ment divi­sion staffed by lawyers and profes­sional invest­ig­at­ors with civil service protec­tion. Given the sens­it­iv­ity of their role, employ­ees of the new Enforce­ment Divi­sion (and poten­tially all OGE staff) should be barred under civil service rules from parti­cip­at­ing in partisan polit­ics.  foot­note113_gc9gk86 113 See 5 U.S.C. § 7323(B)(1) (prevent­ing employ­ees of certain agen­cies from taking an active part in polit­ical manage­ment or polit­ical campaigns).  While enforce­ment staff would do the day-to-day work of invest­ig­at­ing alleged viol­a­tions and pursu­ing sanc­tions, major decisions — includ­ing whether to launch an invest­ig­a­tion or bring an enforce­ment action once the invest­ig­a­tion is done — would require the direct­or’s approval.
  • Estab­lish minimum qual­i­fic­a­tions for the OGE director, in light of these expan­ded respons­ib­il­it­ies, such as exper­i­ence in ethics, compli­ance, law enforce­ment, or related fields; manage­ment exper­i­ence; and repu­ta­tion for integ­rity. This would help guard against abuse and ensure that future direct­ors would meet the stand­ards that have previ­ously been met in prac­tice. Detailed qual­i­fic­a­tions are not neces­sary because the director is subject to confirm­a­tion by the Senate, provid­ing an addi­tional check.
  • Direct OGE and DOJ to estab­lish a process for confid­en­tial refer­rals of poten­tial crim­inal viol­a­tions. As noted, OGE can refer poten­tial crim­inal matters to the Depart­ment of Justice for invest­ig­a­tion and poten­tial prosec­u­tion, but the process is informal and possibly subject to leaks. DOJ has no oblig­a­tion to respond. Congress should require that refer­rals be kept confid­en­tial and that DOJ respond to refer­rals within 120 days to allow OGE to determ­ine whether to take other action on its own.

Finally, to ensure more uniform applic­a­tion of ethical stand­ards across the exec­ut­ive branch, legis­la­tion passed by Congress should:

  • Give OGE author­ity to review and raise objec­tions to indi­vidual conflict of interest exemp­tions. Currently, federal law gives offi­cials the power to exempt their subor­din­ates from conflict of interest law in specific cases where they determ­ine that the poten­tial viol­a­tion is not suffi­ciently import­ant to justify recusal or other action.  foot­note114_db2a8gq 114 18 U.S.C. § 208(b)(1). One recent waiver, for example, allowed a senior White House economic adviser to work on matters affect­ing compan­ies whose stock was still in his port­fo­lio (the White House claims he has since divested). See Peter Overby, “Ethics Docu­ments Suggest Conflict of Interest by Trump Adviser,” NPR, March 14, 2017, https://www.npr.org/sections/thetwo-way/2017/03/14/520121822/ethics-docu­ments-suggest-conflict-of-interest-by-trump-adviser. However, the waiver prob­lem is not new. In one notori­ous example from the George W. Bush admin­is­tra­tion, the admin­is­tra­tion’s Medi­care chief, Thomas A. Scully, was gran­ted a waiver to seek employ­ment repres­ent­ing private health­care clients even as he was help­ing to craft the admin­is­tra­tion’s proposal to expand Medi­care cover­age to prescrip­tion drugs. See Amy Gold­stein, “Admin­is­tra­tion Alters Rules on Ethics Waivers,” Wash­ing­ton Post, Jan. 14, 2004, https://www.wash­ing­ton­post.com/archive/polit­ics/2004/01/14/admin­is­tra­tion-alters-rules-on-ethics-waivers/b92b­b516-b3a0–483f-8e11–58f989318999/?utm_term=.25f4a0a9616f.  OGE not only should be noti­fied of these waivers (as is already the prac­tice)  foot­note115_pw2o4y0 115 For a discus­sion of OGE’s vari­ous stat­utory author­it­ies, seeLet­ter from Walter M. Shaub, Director, Office of Govern­ment Ethics, to John M. Mulvaney, Director, Office of Manage­ment and Budget (May 22, 2017), avail­able at https://assets.docu­mentcloud.org/docu­ments/3728657/OGE-Letter-to-OMB-Director-Mulvaney.pdf.  but also should have the abil­ity to form­ally object within a reas­on­able period of time. The offi­cial who gran­ted the waiver should, in turn, be oblig­ated to respond to OGE’s concerns in writ­ing, and the waiver, along with OGE’s objec­tions and the offi­cial response, should be made public.
  • Confirm that White House staff must follow federal ethics rules. White House staff are subject to the prohib­i­tion on conflicts of interest and most federal ethics laws, and they have also long followed the guid­ance OGE promul­gated via regu­la­tion. As noted, however, admin­is­tra­tion offi­cials recently ques­tioned whether OGE rules actu­ally bind them, based on a legal tech­nic­al­ity.  foot­note116_u9wd­cd8 116 See supra n. 106.  Congress should amend the law to remove this ambi­gu­ity and make clear that OGE has author­ity to promul­gate rules for all exec­ut­ive branch officers, includ­ing White House staff.

 

Protecting the Justice Department 5W Graph­ics

End Notes

III. The Rule of Law and Evenhanded Administration of Justice

The propos­als here are modeled on other success­ful inde­pend­ent agen­cies. Many have been advanced for years by nonpar­tisan reform groups.  foot­note1_tm5t2by 1 See, e.g., Memor­andum from Issue One to Edit­or­ial Boards (May 23, 2017), avail­able at https://www.issueone.org/wp-content/uploads/2017/08/IO-OGE-Edit-Memo-2017.pdf (“RE: Time to Revisit the Office of Govern­ment Ethics (OGE)”); Letter from Liz Hempow­icz, Project on Govern­ment Over­sight, to Honor­able Jason Chaf­fetz, Chair­man, and Honor­able Elijah Cummings, Rank­ing Member, House Commit­tee on Over­sight and Govern­ment Reform (Feb. 14, 2017), avail­able at https://www.pogo.org/letter/2017/02/sugges­ted-ethics-reforms-for-2017/ (“Sugges­ted Ethics Reforms for 2017”); Exec­ut­ive Branch Reform Act of 2007: Hear­ings on H.R. 984, Before the House Comm. on Over­sight and Govern­ment Reform, 110th Cong. 6 (2007) (testi­mony of Craig Holman, Ph.D., Legis­lat­ive Repres­ent­at­ive for Public Citizen), avail­able at https://fas.org/sgp/congress/2007/021307hol­man.pdf.  They repres­ent a balanced frame­work that will give ethics rules real teeth while also protect­ing alleged viol­at­ors who may not have commit­ted any wrong­do­ing. Congress should revamp our ethics enforce­ment system along these lines.

The Founders estab­lished “a govern­ment of laws and not of men.”  foot­note2_x0rrni1 2 Mass. Const. art. XXX (1780) (John Adams).  As Thomas Jeffer­son wrote, “[t]he most sacred of the duties of govern­ment [is] to do equal and impar­tial justice to all its citizens.”  foot­note3_z4b33p1 3 Thomas Jeffer­son, “Note,” in Antoine Louis Claude Destutt de Tracy, Treat­ise on Polit­ical Economy, ed. Thomas Jeffer­son (1817), 202.  But the rule of law does not enforce itself. Those in power will always be temp­ted to favor friends and allies over adversar­ies. That is why, over the course of Amer­ican history, we have built up a robust set of laws, prac­tices, and norms to promote the even­han­ded applic­a­tion of the law, without bias or polit­ical favor.

Conflict of interest law bars offi­cials from involve­ment in law enforce­ment matters where they have an actual or perceived bias. Detailed profes­sional respons­ib­il­ity rules guide most career law enforce­ment offi­cials and, when followed, ensure differ­ent cases and invest­ig­a­tions proceed accord­ing to similar stand­ards and guidelines. Mech­an­isms within agen­cies — internal review processes, inspect­ors general, and audit­ors — seek to enforce stand­ards and hold offi­cials account­able.

Informal policies matter even more. Every admin­is­tra­tion since that of Pres­id­ent Ford has limited which offi­cials in the White House may commu­nic­ate with Depart­ment of Justice person­nel about active invest­ig­a­tions or cases and how they may do so.  foot­note4_x3hebu5 4 See infra n. 151.  Another norm discour­ages senior polit­ical offi­cials from making prema­ture declar­a­tions about the guilt or inno­cence of a defend­ant or the outcome of a trial before it is complete.  foot­note5_2q2oal3 5 See infra 17–21, A gener­ally; see also Andrew McCanse Wright, “Justice Depart­ment Inde­pend­ence and White House Control” (Feb. 18, 2018): 51 avail­able at http://dx.doi.org/10.2139/ssrn.3125848 (“The White House has tradi­tion­ally avoided comment on pending crim­inal invest­ig­a­tions because of the percep­tion of pres­id­en­tial control.”); Luke M. Milligan, “The ‘Ongo­ing Crim­inal Invest­ig­a­tion’ Constraint: Getting away with Silence,” William & Mary Bill of Rights Journal (2008): 756, avail­able at https://schol­ar­ship.law.wm.edu/wmborj/vol16/iss3/4/ (“The White House has histor­ic­ally behaved as though it were constrained from comment­ing on the merits, progress, or inform­a­tion gathered during ongo­ing federal crim­inal invest­ig­a­tions or prosec­u­tions of which the Pres­id­ent is perceived to be at least nomin­ally in control.”).  And yet another discour­ages law enforce­ment from issu­ing indict­ments or taking other public steps that could affect an elec­tion in the period directly before the vote.  foot­note6_hh80caq 6 In its exam­in­a­tion of conduct at the FBI during the 2016 Pres­id­en­tial elec­tion, the Depart­ment of Justice’s Office of the Inspector General conduc­ted inter­views with several current and former law enforce­ment offi­cials who described the exist­ence of an unwrit­ten “Sixty Day Rule,” under which prosec­utors avoid public disclos­ure of invest­ig­at­ive steps related to elect­oral matters or the return of indict­ments against a candid­ate for office within 60 days of a primary or general elec­tion. See Depart­ment of Justice Office of the Inspector General, A Review of Vari­ous Actions by the Federal Bureau of Invest­ig­a­tion and Depart­ment of Justice in Advance of the 2016 Elec­tion (Wash­ing­ton, D.C.: U.S. Depart­ment of Justice, 2018), 17–18, https://www.over­sight.gov/sites/default/files/oig-reports/2016_elec­tion_final_report_06–14–18_0.pdf.  No law requires these policies, but they reduce the risk that polit­ics distorts vital law enforce­ment processes.

It wasn’t always this way. When Amer­ican govern­ment was far less formal, it was assumed that the attor­ney general would be a close legal adviser to the pres­id­ent. Theodore Roosevelt saw no prob­lem in minutely direct­ing anti­trust prosec­u­tions.  foot­note7_5xh85gn 7 Roosevelt direc­ted his attor­ney general to produce a memo analyz­ing the legal­ity of J.P. Morgan’s North­ern Secur­it­ies Trust and had a hand in choos­ing the venue for bring­ing the govern­ment’s suit to enjoin the combin­a­tion. Later, he provided his assur­ances that other combin­a­tions would not be subject to anti-trust complaints. James F. Rill and Stacy L. Turner, “Pres­id­ents Prac­ti­cing Anti­trust: Where to Draw the Line?” Anti­trust Law Journal 79 (2017).  Robert F. Kennedy was his brother’s chief polit­ical adviser and was prepar­ing to resign as attor­ney general to serve as campaign manager in Novem­ber 1963. foot­note8_1wj0jmf 8 “Bobby Kennedy: Is He the ‘Assist­ant Pres­id­ent’?” U.S. News & World Report, Feb. 19, 1962, https://www.usnews.com/news/articles/2015/06/05/bobby-kennedy-is-he-the-assist­ant-pres­id­ent.  When Richard Nixon appoin­ted his campaign manager, John Mitchell, as attor­ney general in 1969, few eyebrows were raised.  foot­note9_0c69mme 9 Gerald Caplan, “The Making of the Attor­ney General: John Mitchell and the Crimes of Water­gate Recon­sidered,” McGeorge Law Review 41 (2010).

That all changed nearly five decades ago, when Water­gate showed the costs of politi­cized justice — and spurred a national reck­on­ing with the abuse and politi­ciz­a­tion of law enforce­ment.

From the outset, White House lawyers care­fully monitored and molded the federal invest­ig­a­tion of the break-in at the Demo­cratic National Commit­tee headquar­ters. Then, in the “Saturday Night Massacre,” Nixon famously ordered his subor­din­ates to fire the special prosec­utor. (His attor­ney general quit and his deputy attor­ney general was fired rather than carry out this improper order. foot­note10_ssydz0i 10 Even­tu­ally, Soli­citor General and then-Acting Attor­ney General Robert Bork carried out Nixon’s order to fire Water­gate Special Prosec­utor Archibald Cox. Carroll Kilpatrick, “Nixon Forces Firing of Cox; Richard­son, Ruck­elshaus Quit,” Wash­ing­ton Post, Oct. 21, 1973, https://www.wash­ing­ton­post.com/wp-srv/national/longterm/water­gate/articles/102173–2.htm. ) In other abuses, Nixon interfered with an anti­trust enforce­ment action on behalf of a large polit­ical donor, IT&T,  foot­note11_plk4at2 11 While the Justice Depart­ment eval­u­ated its merger case against IT&T, the corpor­a­tion donated hundreds of thou­sands of dollars to the Repub­lican National Conven­tion. White House tapes recor­ded Pres­id­ent Nixon order­ing Attor­ney General Richard Klein­di­enst to tell the Depart­ment’s lead anti­trust lawyer to “stay the hell out” of “the IT&T thing” or risk being fired. See Impeach­ment Inquiry Staff for the House Judi­ciary Commit­tee, 93d Cong.,Tran­script of a Record­ing of a Meet­ing Among the Pres­id­ent, John Ehrlich­man and George Shultz on April 19, 1971 from 3:30 to 3:34 P.M.(1974), avail­able at https://www.nixon­lib­rary.gov/sites/default/files/forre­s­earch­ers/find/tapes/water­gate/wspf/482–017_482–018.pdf; see alsoJ. Anthony Lukas,Night­mare: The Under­side of the Nixon Years(New York: Viking Press, 1976): 132–34.  and his White House coun­sel provided an “enemies list” to the IRS commis­sioner, asking that hundreds of people be targeted for invest­ig­a­tion during the 1972 elec­tion (a request that the IRS did not follow).  foot­note12_9hom6e2 12 White House Coun­sel John Dean gave Commis­sioner of Internal Revenue John­nie Mac Walters an “enemies list” of hundreds of prom­in­ent Demo­crats the White House wanted “invest­ig­ated and some put in jail” during the 1972 elec­tion season. Walters and Treas­ury Secret­ary George Shultz agreed that neither Treas­ury nor the IRS would fulfill the White House’s request. Walters even­tu­ally turned the list over to the exec­ut­ive director of the Joint Tax Commit­tee. Select Commit­tee on Pres­id­en­tial Campaign Activ­it­ies (“Water­gate Commit­tee”),Final Report, S. Rep. No. 93–981, at 130–33 (1974). See also­David Dykes, “Former IRS Chief Recalls Defy­ing Nixon,” USA Today, May 26, 2013, https://www.usat­oday.com/story/news/nation/2013/05/26/irs-chief-defied-nixon/2360951/.

In the years after­ward, Amer­ic­ans learned that the politi­ciz­a­tion of law enforce­ment had exten­ded well beyond the Nixon admin­is­tra­tion. The 1976 Church Commit­tee report docu­mented decades of FBI abuses, espe­cially under the Kennedy and Lyndon John­son admin­is­tra­tions, includ­ing the bureau’s black­mail­ing of high offi­cials.  foot­note13_xgq6an6 13 Select Commit­tee to Study Govern­mental Oper­a­tions with Respect to Intel­li­gence Activ­it­ies (“Church Commit­tee”), Final Report, S. Rep. No. 94–755 (1976), avail­able at https://www.intel­li­gence.senate.gov/resources/intel­li­gence-related-commis­sions.  Pres­id­ents were revealed to have wiel­ded the FBI for polit­ical purposes, as when Pres­id­ent John­son had it spy on civil rights protest­ors at the 1964 Demo­cratic conven­tion.  foot­note14_k1y84b7 14 “John­son Repor­ted to Have Used F.B.I. to Spy on the Demo­crats,” New York Times, Aug. 16, 1973, https://www.nytimes.com/1973/08/16/archives/john­son-repor­ted-to-have-used-fbi-to-spy-on-the-demo­crats.html.

Nixon’s two imme­di­ate successors, Pres­id­ents Gerald Ford and Jimmy Carter, made rebuild­ing public confid­ence in the Depart­ment of Justice and other law enforce­ment insti­tu­tions a cent­ral goal of their admin­is­tra­tions.  foot­note15_em9m9zc 15 Cornell W. Clayton, The Polit­ics of Justice: The Attor­ney General and the Making of Govern­ment Legal Policy (New York: Rout­ledge, 2015), 5, 143; David Leon­hardt, “The Sense of Justice That We’re Losing,” New York Times, Apr. 29, 2018, https://www.nytimes.com/2018/04/29/opin­ion/the-sense-of-justice-that-were-losing.html (discuss­ing role Attor­neys General Edward Levi and Griffin Bell played in chan­ging the rules for FBI invest­ig­a­tions and insti­tut­ing strict proto­cols for commu­nic­a­tion between the White House and the Depart­ment of Justice). Pres­id­ent Ford later recalled his words to Attor­ney General Levi upon offer­ing him the post of attor­ney general in 1975: “I was in no posi­tion to offer job secur­ity. But I could and did prom­ise Ed that no politi­cian would encroach on the Depart­ment. I wanted him to protect the rights of Amer­ican citizens, not the Pres­id­ent who appoin­ted him.” Gerald Ford, “In Memoriam: Edward H. Levi (1912–2000),” Univer­sity of Chicago Law Review 67 (2000): 976.  The White House, Justice Depart­ment, and others adop­ted formal and informal prac­tices that aimed to ensure arm’s-length deal­ings — in public and private — between senior polit­ical offi­cials and career law enforce­ment person­nel. At the same time, the FBI was reined in by having its director report to the attor­ney general as well as directly to the White House.  foot­note16_xmm7hnt 16 Henry B. Hogue, Nomin­a­tion and Confirm­a­tion of the FBI Director: Process and Recent History, CRS Report No. RS20963, (Wash­ing­ton, D.C.: Congres­sional Research Service, 2005), https://fas.org/sgp/crs/natsec/RS20963.pdf.  The CIA, too, was required to oper­ate under the Foreign Intel­li­gence Surveil­lance Act.  foot­note17_5sq46as 17 Foreign Intel­li­gence Surveil­lance Act of 1978, 50 U.S.C. § 1801 et seq. (1978).  To fill the gap, the White House coun­sel’s office grew in stature and size.  foot­note18_1mgh6cn 18 Mary­anne Borrelli, Karen Hult, and Nancy Kassop, “The White House Coun­sel’s Office,” Pres­id­en­tial Stud­ies Quarterly 31 (2001): 576–77 (describ­ing the role and growth of the White House coun­sel’s office over time and naming poten­tial reas­ons for its expan­sion).

These new rules had an import­ant prac­tical impact. But even more signi­fic­ant, they helped create a new set of expect­a­tions — mostly unspoken but nonethe­less power­ful — that largely constrained polit­ical inter­fer­ence in law enforce­ment.

This system served the coun­try well. It is now under direct attack.

We are still early in the current admin­is­tra­tion, but already Pres­id­ent Trump has taken numer­ous steps to under­mine Amer­ican law enforce­ment. He has issued a steady stream of public comments seek­ing to influ­ence the special coun­sel’s invest­ig­a­tion into Russian elec­tion inter­fer­ence.  foot­note19_2medoj3 19 See, e.g., Donald J. Trump (@real­Don­aldTrump), “Attor­ney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it contin­ues to stain our coun­try any further. Bob Mueller is totally conflic­ted, and his 17 Angry Demo­crats that are doing his dirty work are a disgrace to USA!” Twit­ter, Aug. 1, 2018, 9:24 a.m., https://twit­ter.com/real­Don­aldTrump/status/1024646945640525826; Donald J. Trump (@real­Don­aldTrump), “Look­ing back on history, who was treated worse, Alfonse Capone, legendary mob boss, killer and ‘Pub­lic Enemy Number One,’ or Paul Mana­fort, polit­ical oper­at­ive & Reagan/Dole darling, now serving solit­ary confine­ment – although convicted of noth­ing?” Twit­ter, Aug. 1, 2018, 8:35 a.m., https://twit­ter.com/real­Don­aldTrump/status/1024680095343108097.  He has urged the Justice Depart­ment to invest­ig­ate his polit­ical oppon­ents.  foot­note20_yodc1r3 20 See, e.g., Donald J. Trump (@real­Don­aldTrump), “Every­body is asking why the Justice Depart­ment (and the FBI) isn’t look­ing into all of the dishon­esty going on with Crooked Hillary & the Dems..[sic]” Twit­ter, Nov. 3, 2017, 3:57 a.m., https://twit­ter.com/real­Don­aldTrump/status/926403023861141504.  He has fired or promp­ted the resig­na­tions of top FBI offi­cials and has lamen­ted his attor­ney gener­al’s perceived lack of personal loyalty.  foot­note21_q1h0wq5 21 Devlin Barrett, John Wagner, and Seung Min Kim, “Trump and Sessions Feud over the Direc­tion of the Justice Depart­ment,” Wash­ing­ton Post, Aug. 23, 2018, https://wapo.st/2PyCIjF; Aaron Rupar, “In Unhinged Tweet­storm, Trump Admits McCabe Firing Was about Polit­ics,” Think Progress, Mar. 17, 2018, https://think­pro­gress.org/trump-unhinged-tweets-about-mccabe-firing-88eb9da60335/ (“Trump . . . repeatedly publicly pres­sured Sessions to fire McCabe[] . . . .”); Michael D. Shear and Matt Apuzzo, “F.B.I. Director James Comey Is Fired by Trump,” New York Times, May 9, 2017, https://www.nytimes.com/2017/05/09/us/polit­ics/james-comey-fired-fbi.html.  He has deman­ded that DOJ take action against two compan­ies, Amazon and Time Warner, whose owners also control major media outlets whose report­ing frequently angers him.  foot­note22_ehk8w8m 22 See, e.g., Donald J. Trump (@real­Don­aldTrump), “In my opin­ion the Wash­ing­ton Post is noth­ing more than an expens­ive (the paper loses a fortune) lobby­ist for Amazon. Is it used as protec­tion against anti­trust claims which many feel should be brought?” Twit­ter, July 23, 2018, 6:35 a.m., https://twit­ter.com/real­Don­aldTrump/status/1021388295618682881. Pres­id­ent Trump stated on the campaign trail, “AT&T is buying Time Warner and thus CNN, a deal we will not approve in my admin­is­tra­tion . . . .” Ryan Knut­son, “Trump Says He Would Block AT&T-Time Warner Deal,” Wall Street Journal, Oct. 22, 2016, https://www.wsj.com/articles/trump-says-he-would-block-at-t-time-warner-deal-1477162214.  (See, e.g., DOJ’s lawsuit to block Time Warner’s merger with AT&T, widely condemned as being at odds with decades of anti­trust prac­tice,  foot­note23_q3xznhc 23 The Depart­ment of Justice’s suit to block the merger was a sharp depar­ture from how the Depart­ment has treated such “vertical mergers” for decades. See J. Thomas Rosch, Commis­sioner, Federal Trade Commis­sion, “The Chal­lenge of Non-Hori­zontal Merger Enforce­ment” (prepared remarks, Ford­ham Compet­i­tion Law Insti­tute, 34th Annual Confer­ence on Inter­na­tional Anti-Trust Law and Policy, Sept. 2007), 11–12, avail­able at https://www.ftc.gov/sites/default/files/docu­ments/public_state­ments/chal­lenge-non-hori­zontal-merger-enforce­ment/070927–28non-hori­zont­almer­ger_1.pdf; James Hohmann, “Analysis: 7 Reas­ons to Be Suspi­cious of the DOJ Lawsuit to Stop AT&T from Buying CNN,” Chicago Tribune, Nov. 21, 2017, http://www.chica­g­o­tribune.com/busi­ness/ct-biz-doj-lawsit-time-warner-att-20171121-story.html.  which was rejec­ted in federal court.)  foot­note24_iij7kzx 24 United States v. AT&T, Inc., No. 17–2511 (D.D.C. June 12, 2018) (deny­ing Depart­ment of Justice’s request to enjoin the merger), appeal pending.  He has threatened to tax Harley David­son “like never before” after the company announced the trade war is forcing some of its oper­a­tions over­seas and has targeted other compan­ies for retri­bu­tion in response to personal or policy slights.  foot­note25_ab3r­q51 25 Dani­elle Wiener-Bron­ner and Julia Horow­itz, “Amazon and 16 Other Compan­ies Trump Has Attacked Since his Elec­tion,” CNN Money, Apr. 4, 2018, https://money.cnn.com/2018/04/04/news/compan­ies/trump-compan­ies-attacks/index.html.  “I have the abso­lute right to do what I want to do with the Justice Depart­ment,” he has said.  foot­note26_g8zbzy1 26 Michael S. Schmidt and Michael D. Shear, “Trump Says Russia Inquiry Makes U.S. ‘Look Very Bad,’” New York Times, Dec. 28, 2017, https://www.nytimes.com/2017/12/28/us/polit­ics/trump-inter­view-mueller-russia-china-north-korea.html?_r=0 (The Pres­id­ent assert­ing that, although he would be within his rights to fire the special coun­sel, he was choos­ing not to do so.).

Other recent admin­is­tra­tions also have at times let polit­ical consid­er­a­tions influ­ence law enforce­ment. During Pres­id­ent George W. Bush’s tenure, the Justice Depart­ment inspector general found evid­ence that nine U.S. attor­neys (includ­ing Capt. David Iglesias, a member of this Task Force) were removed for their prosec­utorial decisions in polit­ic­ally sens­it­ive cases rather than for “under­per­form­ance,” as DOJ had claimed in congres­sional testi­mony at first, and that offi­cials used polit­ical affil­i­ation as a factor in hiring, which is prohib­ited.  foot­note27_i4di­ai7 27 U.S. Depart­ment of Justice Office of Inspector General and Office of Profes­sional Respons­ib­il­ity, An Invest­ig­a­tion into the Removal of Nine U.S. Attor­neys in 2006 (Wash­ing­ton, D.C.: Depart­ment of Justice Office of the Inspector General and Office of Profes­sional Respons­ib­il­ity, 2008): 356–58, https://oig.justice.gov/special/s0809a/final.pdf (conclud­ing that the process used to remove the U.S. Attor­neys was “funda­ment­ally flawed”); U.S. Depart­ment of Justice Office of the Inspector General and Office of Profes­sional Respons­ib­il­ity, An Invest­ig­a­tion of Alleg­a­tions of Politi­cized Hiring and Other Improper Person­nel Actions in the Civil Rights Divi­sion (Wash­ing­ton, D.C.: Depart­ment of Justice Office of the Inspector General and Office of Profes­sional Respons­ib­il­ity, 2009): 64, https://oig.justice.gov/special/s0901/final.pdf (conclud­ing that Brad­ley Schloz­man, the polit­ical offi­cial over­see­ing the Civil Rights Divi­sion at the Depart­ment of Justice, “considered polit­ical and ideo­lo­gical affil­i­ations in hiring career attor­neys and in other person­nel actions affect­ing career attor­neys in the Civil Rights Divi­sion”).  The scan­dal resul­ted in the resig­na­tions of senior offi­cials includ­ing Attor­ney General Alberto Gonzales.  foot­note28_liizx7p 28 Dan Eggen and Michael A. Fletcher, “Embattled Gonzales Resigns,” Wash­ing­ton Post, Aug. 28, 2007, http://www.wash­ing­ton­post.com/wp-dyn/content/article/2007/08/27/AR2007082700372.html (recount­ing the diffi­cult last months of Attor­ney General Gonza­les’ tenure and his even­tual resig­na­tion).

During the Obama admin­is­tra­tion, Attor­ney General Loretta Lynch was widely criti­cized for an airport tarmac encounter with former Pres­id­ent Bill Clin­ton, which came while the FBI was invest­ig­at­ing the use of a private email server by Hillary Clin­ton while she was secret­ary of state.  foot­note29_yuli5rx 29 For a summary of bipar­tisan criti­cism, see Paula Reid, “AG Loretta Lynch Faces Storm of Criti­cism over Bill Clin­ton Meet­ing,” CBS News, June 30, 2016, https://www.cbsnews.com/news/loretta-lynch-bill-clin­ton-meet­ing-storm-of-criti­cism/; see also Mark Land­ler, Matt Apuzzo and Amy Chozick, “Loretta Lynch to Accept F.B.I. Recom­mend­a­tions in Clin­ton Email Inquiry,” New York Times,July 1, 2016, https://www.nytimes.com/2016/07/02/us/polit­ics/loretta-lynch-hillary-clin­ton-email-server.html.  The epis­ode, combined with Pres­id­ent Obama’s prema­ture state­ment that Secret­ary Clin­ton’s actions never endangered national secur­ity, raised fears that the admin­is­tra­tion was inap­pro­pri­ately seek­ing to influ­ence the probe.  foot­note30_325bzxt 30 Matt Apuzzo and Michael Schmidt, “Obama’s Comments about Clin­ton’s Emails Rankle Some in the F.B.I.,” New York Times, Oct. 16, 2015, https://www.nytimes.com/2015/10/17/us/polit­ics/obamas-comments-on-clin­ton-emails-collide-with-fbi-inquiry.html.

These depar­tures from long-accep­ted prac­tices have real and last­ing consequences. They distort decision-making. They shield wrong­do­ing by high offi­cials. They risk convert­ing the fear­some power of the prosec­utorial machine into a polit­ical weapon. They under­mine the funda­mental notion that the law applies to every­one equally. They corrode public trust. And ulti­mately, they cast doubt on a crucial premise of any healthy demo­cracy: that the law not be used to favor or punish anyone based on polit­ics.

In the past, the half-century-old system of de facto inde­pend­ence for much of law enforce­ment and respect for the role of inde­pend­ent courts was a norm largely — though not always — honored by those in power. But that norm has eroded, with the result that few expli­cit rules now constrain exec­ut­ive beha­vior. It is time to put in place more expli­cit and enforce­able restric­tions to ensure a return to the proper balance. 

Safe­guard Against Inap­pro­pri­ate Inter­fer­ence in Law Enforce­ment for Polit­ical or Personal Aims

First, we need to strengthen the guard­rails prevent­ing improper polit­ical inter­fer­ence in law enforce­ment by the White House. There is no ques­tion that it is appro­pri­ate for the pres­id­ent and his staff to set prior­it­ies for law enforce­ment and to weigh in on key decisions. At the same time, it is entirely inap­pro­pri­ate for them — as it is for all govern­ment offi­cials — to inter­fere in specific law enforce­ment matters for personal, finan­cial, or partisan polit­ical gain.

To prevent abuse, most public offi­cials involved in law enforce­ment are subject to a range of checks on their powers — from detailed proced­ures that constrain their actions, to formal super­vis­ory systems that can discip­line them, to inspect­ors general who can invest­ig­ate them, to desig­nated congres­sional commit­tees that provide regu­lar over­sight of them.  foot­note31_f2jptbj 31 Such checks on prosec­utors’ power are crit­ical because, as Attor­ney General Robert H. Jack­son explained, “The prosec­utor has more control over life, liberty, and repu­ta­tion than any other person in Amer­ica. His discre­tion is tremend­ous. . . . While the prosec­utor at his best is one of the most bene­fi­cent force in our soci­ety, when he acts from malice or other base motives, he is one of the worst.” Attor­ney General Robert H. Jack­son, “The Federal Prosec­utor: Address to the Second Annual Confer­ence of the United States Attor­neys,”Journal of the Amer­ican Judicature Soci­ety24 (1940): 18, https://www.rober­th­jack­son.org/wp-content/uploads/2015/01/The_Federal_Prosec­utor.pdf.  The same is not true for the pres­id­ent and other White House offi­cials. The White House is mainly checked by polit­ical processes. But those processes do not work unless the public and polit­ical actors know what is going on.

Our propos­als do not seek to impose restric­tions on the White House. They simply seek to rein­force long­stand­ing prac­tices designed to prevent abuse in the exec­ut­ive branch by enhan­cing trans­par­ency of polit­ical contacts with law enforce­ment and allow­ing for more mean­ing­ful over­sight of poten­tial prob­lems.

PROPOSAL 7 
Congress should pass legis­la­tion requir­ing the exec­ut­ive branch to artic­u­late clear stand­ards for and report on how the White House inter­acts with law enforce­ment. 

To prevent both inten­tional and inad­vert­ent polit­ical inter­fer­ence with law enforce­ment, the White House, Justice Depart­ment, and other law enforce­ment agen­cies have for decades volun­tar­ily limited contact between senior polit­ical offi­cials and career law enforce­ment person­nel.

These curbs on White House contacts are not required by law. They are found only in writ­ten policies, volun­tar­ily adop­ted by each admin­is­tra­tion, limit­ing who from the White House and who from the Depart­ment of Justice and other enforce­ment agen­cies can discuss ongo­ing invest­ig­a­tions and cases. Typic­ally, these policies restrict conver­sa­tions to high-level offi­cials on both sides, with the White House coun­sel’s office play­ing a cent­ral role in managing and monit­or­ing White House contacts.  foot­note32_8rp1kko 32 See, e.g., Jack Quinn, Coun­sel to the Pres­id­ent, “Contacts with Agen­cies” (offi­cial memor­andum, Wash­ing­ton, D.C.: The White House, Jan. 16, 1996), 1 (“Unless you are certain that a partic­u­lar contact is permiss­ible, you should take care before making the contact to consult with the Coun­sel’s Office.”); Donald F. McGahn II, Coun­sel to the Pres­id­ent, “Commu­nic­a­tions Restric­tions with Person­nel at the Depart­ment of Justice” (offi­cial memor­andum, Wash­ing­ton, D.C.: The White House, Jan. 27, 2017), 1 (“Commu­nic­a­tions with DOJ about indi­vidual cases or invest­ig­a­tions should be routed through the Attor­ney General, Deputy Attor­ney General, Asso­ci­ate Attor­ney General, or Soli­citor General, unless the Coun­sel’s Office approves differ­ent proced­ures for the specific case at issue.”).  They also include special proto­cols for cases affect­ing national secur­ity  foot­note33_x1k2gm6 33 See, e.g., Eric Holder, Attor­ney General, “Commu­nic­a­tions with the White House and Congress” (offi­cial memor­andum, Wash­ing­ton, D.C.: Depart­ment of Justice, May 11, 2009), 2, https://www.justice.gov/oip/foia-library/commu­nic­a­tions_with_the_white_house_and_congress_2009.pdf/down­load (exempt­ing commu­nic­a­tions relat­ing to national secur­ity from limited contacts policies because “[i]t is crit­ic­ally import­ant to have frequent and exped­i­tious commu­nic­a­tions relat­ing to national secur­ity matters”).  or where the Depart­ment of Justice is defend­ing an admin­is­tra­tion policy.  foot­note34_10fzghg 34 See, e.g., Benjamin Civiletti, Attor­ney General, “Commu­nic­a­tion from the White House and Congress” (offi­cial memor­andum, Wash­ing­ton, D.C.: Depart­ment of Justice, Oct. 18, 1979), 2 (“White House or Congres­sional inquir­ies concern­ing policy decisions or legis­la­tion are differ­ent from those direc­ted at specific invest­ig­a­tions and cases. The posi­tions of the Admin­is­tra­tion on those kinds of matters often must be coordin­ated. Addi­tion­ally, there is less chance for improper influ­ences in this area. Consequently, differ­ent consid­er­a­tions for commu­nic­a­tion result.”); Quinn, “Contacts with Agen­cies,” 2; Holder, “Commu­nic­a­tions with the White House and Congress,” 3 (allow­ing for “distinct­ive arrange­ments” for “[m]atters in which the Soli­citor Gener­al’s Office is involved” because those “often raise ques­tions about which contact with the Office of the Coun­sel to the Pres­id­ent is appro­pri­ate”).

These policies recog­nize that polit­ical actors are, at least in part, motiv­ated by polit­ical concerns that should not affect the applic­a­tion of the law and that law enforce­ment person­nel are better situ­ated to make decisions about specific cases or invest­ig­a­tions. They guard against overt direc­tion from the White House, or the use of invest­ig­at­ive agen­cies to punish polit­ical foes. They also protect against the inad­vert­ent pres­sure or bias that may result from a call from a White House offi­cial about a specific matter. Even a ques­tion about a case can lead an offi­cial to presume an interest in its outcome; the offi­cial then may try to ensure the desired outcome. As former Attor­ney General Benjamin Civiletti put it, pres­id­ents and other top offi­cials “unin­ten­tion­ally can exert pres­sure by the very nature of their posi­tions.”  foot­note35_uzki0cq 35 Civiletti, “Commu­nic­a­tion from the White House and Congress,” 1 (outlining Depart­ment of Justice policy limit­ing contacts with the White House).

At the same time, the policies recog­nize that the pres­id­ent has a unique and personal role in exec­ut­ive branch policy determ­in­a­tions, includ­ing in how our laws are enforced. For example, pres­id­ents have, appro­pri­ately, told anti­trust enfor­cers to step up enforce­ment without direct­ing the prosec­u­tion of a specific firm.  foot­note36_6ftyia6 36 For instance, in 2009, Christine Varney, head of the Anti­trust Divi­sion at the Depart­ment of Justice, stated publicly, “The recent devel­op­ments in the market­place should make it clear that we can no longer rely upon the market­place alone to ensure that compet­i­tion and consumers will be protec­ted.” Cecilia Kang, “U.S. Clears the Way for Anti­trust Crack­down,” Wash­ing­ton Post, May 12, 2009, http://www.wash­ing­ton­post.com/wp-dyn/content/article/2009/05/11/AR2009051101189.html. The White House could also direct the Depart­ment of Justice to crack down on white collar crime, even on bankers, but it is gener­ally frowned upon for the White House to direct the prosec­u­tion of an indi­vidual contro­ver­sial CEO. A recent example of the White House setting enforce­ment policy is when the Obama admin­is­tra­tion announced a policy to no longer initi­ate the deport­a­tion of young undoc­u­mented immig­rants meet­ing certain qual­i­fic­a­tions. In response, Home­land Secur­ity Secret­ary Janet Napol­it­ano instruc­ted immig­ra­tion enforce­ment agents to “imme­di­ately exer­cise their discre­tion, on an indi­vidual basis, in order to prevent low-prior­ity indi­vidu­als from being placed into removal proceed­ings.” Julia Preston and John H. Cush­man, Jr., “Obama to Permit Young Migrants to Remain in U.S.,” New York Times, June 15, 2012, https://www.nytimes.com/2012/06/16/us/us-to-stop-deport­ing-some-illegal-immig­rants.html.  By contrast, White House influ­ence in indi­vidual cases risks creat­ing the percep­tion — and poten­tially the real­ity — that law enforce­ment is being used as a polit­ical or personal tool.  foot­note37_56w2s37 37 See, e.g.,Renan, “Pres­id­en­tial Norms and Article II,” 2207 (discuss­ing “the norm of invest­ig­at­ory inde­pend­ence” for the pres­id­ency, which “prohib­its pres­id­en­tial direc­tion in indi­vidual invest­ig­at­ory matters”), 2236–39 (discuss­ing the pres­id­ent’s polit­ical control over poli­cy­mak­ing through the admin­is­trat­ive process).

Every admin­is­tra­tion since Ford has estab­lished such “limited contacts” policies between the White House and the Justice Depart­ment.  foot­note38_eocq0an 38 See, e.g., Donald Rums­feld, White House Chief of Staff, “Stand­ards of Conduct: Contacts with Regu­lat­ory Agen­cies and Procure­ment Officers” (offi­cial memor­andum, Wash­ing­ton, D.C.: The White House, Oct. 10, 1975); Fred F. Field­ing, Coun­sel to the Pres­id­ent, “Commu­nic­a­tions with the Depart­ment of Justice” (offi­cial memor­andum, Wash­ing­ton, D.C.: The White House, Feb. 10, 1981); C. Boyden Gray, Coun­sel to the Pres­id­ent, “Prohib­ited Contacts with Agen­cies” (offi­cial memor­andum, Wash­ing­ton, D.C.: The White House, Feb. 1989); Quinn, “Contacts with Agen­cies”; Michael Muka­sey, Attor­ney General, “Commu­nic­a­tions with the White House” (offi­cial memor­andum, Wash­ing­ton, D.C.: Depart­ment of Justice, Dec. 19, 2007), avail­able at https://www.just­se­cur­ity.org/wp-content/uploads/2017/06/AG-2007-Memo-Commu­nic­a­tions-with-White-House.pdf; Holder, “Commu­nic­a­tions with the White House and Congress”; McGahn, “Commu­nic­a­tions Restric­tions with Person­nel at the Depart­ment of Justice.”  Although less consist­ent, there have also been similar policies cover­ing other agen­cies with law enforce­ment respons­ib­il­it­ies, such as the Internal Revenue Service and the Depart­ment of Labor. foot­note39_g2i5dsi 39 See, e.g., Quinn, “Contacts with Agen­cies” (Clin­ton Admin­is­tra­tion); Kath­ryn Ruemmler,Coun­sel to the Pres­id­ent, “Prohib­ited Contacts with Agen­cies and Depart­ments” (offi­cial memor­andum, Wash­ing­ton, D.C.: The White House, Mar. 23, 2012).  Despite their import­ance, these policies have received scant public notice. Often, they have not been released until well after the end of a pres­id­ency. The Obama admin­is­tra­tion’s most recent internal White House policy still has not been released.

Unfor­tu­nately, it has become increas­ingly clear that these volun­tary policies, without formal legal require­ments or enforce­ment mech­an­isms, cannot prevent polit­ical inter­fer­ence in law enforce­ment activ­it­ies. For example, Pres­id­ent George W. Bush’s admin­is­tra­tion dramat­ic­ally relaxed its own limited contacts policies, balloon­ing the number of polit­ical offi­cials eligible to have contact with law enforce­ment person­nel to more than 800.  foot­note40_icz53qb 40 See supra n. 157; see also Report: The Secur­ity from Polit­ical Inter­fer­ence in Justice Act of 2007, S. Rep. No. 110–203, at 3 (2007), avail­able at https://www.congress.gov/110/crpt/srpt203/CRPT-110s­rpt203.pdf (stat­ing that Attor­ney General Gonzales imple­men­ted a limited contacts policy permit­ting “at least 895 people in the exec­ut­ive branch to commu­nic­ate with at least 42 people at the Depart­ment of Justice on non-national secur­ity related matters.”). The policy shift was opposed by members of Congress and became a key focus of the nomin­a­tion process of Gonza­les’ successor, Attor­ney General Michael Muka­sey. Dan Eggen, “Muka­sey Limits Agency’s Contacts with White House,” Wash­ing­ton Post, Dec. 20, 2007, http://www.wash­ing­ton­post.com/wp-dyn/content/article/2007/12/19/AR2007121902303.html.  After the U.S. attor­neys’ scan­dal, Attor­ney General Michael Muka­sey rein­vig­or­ated the policy.  foot­note41_fp5gbwt 41 Muka­sey commit­ted to rein­stat­ing a more strin­gent limited contacts policy at his nomin­a­tion hear­ing, and upon confirm­a­tion, he restric­ted allow­able contacts about pending crim­inal and civil cases to the attor­ney general and his deputy and to the White House coun­sel and deputy coun­sel, with a provi­sion that civil enforce­ment matters could also be discussed with the asso­ci­ate attor­ney general. Jean­nie Shawl, “Muka­sey Memo Limits DOJ Case Discus­sions with White House,” Jurist, Dec. 20, 2007, http://www.jurist.org/paper­chase/2007/12/muka­sey-memo-limits-doj-case.php; Muka­sey, “Commu­nic­a­tions with the White House.”

The current admin­is­tra­tion, too, has adop­ted a limited contacts policy.  foot­note42_of9m­pc7 42 Donald F. McGahn II, Coun­sel to the Pres­id­ent, “Commu­nic­a­tions Restric­tions with Person­nel at the Depart­ment of Justice,” (offi­cial memor­andum, Wash­ing­ton, D.C.: White House, Jan. 27, 2017), avail­able at https://www.politico.com/f/?id=0000015a-dde8-d23c-a7ff-dfef4d530000.  But reports suggest the policy has not always been followed. For example, the pres­id­ent’s then-Chief of Staff Reince Priebus reportedly asked a top FBI offi­cial to publicly disclose alleged facts pertain­ing to the bureau’s invest­ig­a­tion of Russian inter­fer­ence in the 2016 elec­tion in order to refute a news report that senior members of the Trump campaign had frequent contacts with Russian agents.  foot­note43_2xfhzss 43 Brooke Seipel, “Priebus Could Have Viol­ated WH Policy by Speak­ing to FBI: Report,” The Hill, Mar. 17, 2017, http://thehill.com/blogs/blog-brief­ing-room/news/324596-priebus-could-have-viol­ated-wh-policy-by-speak­ing-to-fbi-report.

Trump himself, on several occa­sions, directly contac­ted the U.S. attor­ney in the South­ern District of New York, who had juris­dic­tion over a number of matters involving the pres­id­ent’s private and finan­cial interests, ostens­ibly to develop a personal rela­tion­ship, before ulti­mately firing him.  foot­note44_oaczfio 44 Matt Ford, “Why Trump’s Dismissal of Preet Bhar­ara Matters,” Atlantic, Mar. 12, 2017, https://www.theat­lantic.com/polit­ics/archive/2017/03/trump-bhar­ara/519318/.  (That former U.S. attor­ney is the co-chair of this Task Force.) Trump also drew criti­cism for taking the unusual step of person­ally inter­view­ing candid­ates for the U.S. attor­ney’s successor.  foot­note45_miep­g45 45 Trump person­ally inter­viewed Geof­frey Berman, then a part­ner at Rudy Giulian­i’s former law firm, for the U.S. Attor­ney posi­tion for the South­ern District of New York; Ed McNally, a part­ner at the law firm foun­ded by Trump’s former personal attor­ney Marc Kasow­itz, for the U.S. Attor­ney posi­tion for the East­ern District of New York; and Jessie Liu for the U.S. Attor­ney posi­tion for the District of Columbia. Seung Min Kim and John Bres­na­han, “Trump Person­ally Inter­viewed U.S. Attor­ney Candid­ates,” Politico, Oct. 19, 2017, https://www.politico.com/story/2017/10/19/trump-us-attor­ney-inter­views-243962.  While there is no evid­ence that the pres­id­ent made inap­pro­pri­ate requests in these conver­sa­tions, they make clear that it is possible for a pres­id­ent to put inap­pro­pri­ate pres­sure on prosec­utors.

When long­stand­ing norms govern­ing contacts between the White House and law enforce­ment offi­cials are viol­ated, even for reas­ons that are not inap­pro­pri­ate, it creates a troub­ling preced­ent for future admin­is­tra­tions and opens the door to inap­pro­pri­ate breaches.

While Congress should not itself regu­late how the exec­ut­ive branch deals with law enforce­ment, it can take steps to increase trans­par­ency and bolster account­ab­il­ity, thereby deter­ring miscon­duct. Specific­ally, Congress should pass legis­la­tion to:

  • Require the White House, the Depart­ment of Justice, and other law enforce­ment agen­cies to issue and publish a White House contacts policy. The legis­la­tion should require each admin­is­tra­tion to identify specific offi­cials, in both the White House and the relev­ant enforce­ment agen­cies, who are author­ized to commu­nic­ate about indi­vidual law enforce­ment matters. This will send a strong message that Congress believes limit­a­tions on White House influ­ence are crit­ical to impar­tial law enforce­ment. The public disclos­ure require­ment will enable the public to assess whether the policies are adequate to ensure that law enforce­ment is not subject to undue polit­ical influ­ence.  foot­note46_6i3esgh 46 While all admin­is­tra­tions since the 1970s have enacted policies, many of them have not been released until long after they were issued, and some have yet to be publicly released. For example, a White House contacts policy memor­andum issued by Pres­id­ent Obama’s White House coun­sel has not been released publicly as of the public­a­tion of this report. Ruemmler, “Prohib­ited Contacts with Agen­cies and Depart­ments.”  Disclos­ure also makes it possible for Congress to use hear­ings and other over­sight powers to address any defi­cien­cies.  foot­note47_ns2jzzl 47 The story of the changes to the limited contact policy during George W. Bush’s admin­is­tra­tion provides an illus­tra­tion of how congres­sional scru­tiny of contacts policies can make a differ­ence. See supra, nn. 159–60.
  • Require law enforce­ment agen­cies to main­tain a log of contacts with the White House pertain­ing to specific civil or crim­inal enforce­ment matters under­taken by the Justice Depart­ment or other federal agen­cies with enforce­ment author­ity. The log should be limited to commu­nic­a­tions about indi­vidual cases or invest­ig­a­tions, includ­ing commu­nic­a­tions about the litig­ants, subjects, targets, and witnesses, spelling out the people involved in the commu­nic­a­tion and the matter discussed.  foot­note48_62by26n 48 This proposal builds on exist­ing DOJ guid­ance for partic­u­lar contacts with outside parties. The U.S. Attor­neys Manual directs U.S. Attor­neys and staff to report contacts with Members of Congress, their staffs, or the media. See Office of the United States Attor­neys, U.S. Attor­neys’ Manual (Wash­ing­ton, D.C.: United States Depart­ment of Justice, 2018), §§ 1–7.000, 1–8.000, https://www.justice.gov/usam/united-states-attor­neys-manual. Law enforce­ment officers are already required to record certain inform­a­tion regard­ing their activ­it­ies and commu­nic­a­tions; intra-agency struc­ture already exists to manage any addi­tional required disclos­ures. See Free­dom of Inform­a­tion Act, 5 U.S.C. § 552.  It should not include routine (and neces­sary) contacts where the White House seeks legal advice from the agency or is parti­cip­at­ing in legal policy issues; contacts relat­ing to a matter in which the United States or one of its subdi­vi­sions is a defend­ant or a matter concern­ing national secur­ity; and other ordin­ary contacts that do not concern specific cases or invest­ig­a­tions.  foot­note49_66r7­fa7 49 To reduce duplic­a­tion (or any perceived burden), Congress could make clear that once the log indic­ates the subject and indi­vidu­als involved in commu­nic­a­tions about a partic­u­lar matter, subsequent log entries for each commu­nic­a­tion on the same matter are not required.
  • Require relev­ant agen­cies to submit reports based on the above logs to relev­ant House and Senate commit­tees, the Depart­ment of Justice’s Inspector General, and covered agen­cies’ inspect­ors general. Those reports should omit inform­a­tion that could jeop­ard­ize confid­en­tial witnesses, under­cover oper­a­tions, or the rights of those under scru­tiny. Congress and inspect­ors general could pose follow-up ques­tions about the propri­ety of partic­u­lar White House contacts.

These meas­ures, by allow­ing for over­sight of improper commu­nic­a­tions, will help deter inap­pro­pri­ate White House conduct. If someone knows there will be a record of their contact, they will likely take care to ensure it is appro­pri­ate. White House staffers are already accus­tomed to making similar judg­ments because White House emails that would other­wise remain confid­en­tial risk being publicly released under the Free­dom of Inform­a­tion Act  foot­note50_ijbg­f23 50 5 U.S.C. § 552.  if they are sent to agen­cies.

Safeguarding the pardon process 5W Graph­ics

Based on our exper­i­ence serving in govern­ment, we do not believe a logging and report­ing require­ment would be overly burden­some. In fact, we expect that report­able White House contacts about a specific pending case or invest­ig­a­tion outside of the inter­agency coordin­a­tion process would be rare. The White House and Depart­ment of Justice already main­tain records of similar types of inform­a­tion; indeed, the Depart­ment of Justice elec­tron­ic­ally tracks all of its commu­nic­a­tions, includ­ing with outside parties.  foot­note51_ia17fxe 51 ursu­ant to the Privacy Act of 1974, 5 U.S.C. § 552a, the Depart­ment of Justice has proced­ures and rules in place to elec­tron­ic­ally track Depart­ment commu­nic­a­tions, includ­ing with outside parties. See 66 Fed. Reg. 41445 (Aug. 8, 2001) (imple­ment­ing new Depart­ment-wide corres­pond­ence-track­ing system proposed on June 4, 2001, 66 Fed. Reg. 29992); “DOJ Systems of Records,” Depart­ment of Justice, last accessed Sept. 4, 2018, https://www.justice.gov/opcl/doj-systems-records. The White House also main­tains its records pursu­ant to the Pres­id­en­tial Records Act of 1978, 44 U.S.C. §§ 2201–2209; see also Julie Hirschfeld Davis, “White House to Keep Its Visitor Logs Secret,” New York Times, Apr. 14, 2017, https://www.nytimes.com/2017/04/14/us/polit­ics/visitor-log-white-house-trump.html (noting that White House records are main­tained pursu­ant to law and that disclos­ure prac­tices vary from one admin­is­tra­tion to the next).

Nor are these meas­ures likely to raise legit­im­ate consti­tu­tional concerns. Congress currently regu­lates White House contacts with the Internal Revenue Service, prevent­ing offi­cials, includ­ing the pres­id­ent, from request­ing that IRS employ­ees start or stop an audit.  foot­note52_3ntyydj 52 Internal Revenue Service Restruc­tur­ing and Reform Act of 1998, 26 U.S.C. §§ 6654, 7217 (1998). This legis­la­tion has not been chal­lenged as uncon­sti­tu­tional.  It would be on strong consti­tu­tional foot­ing to also require the White House and exec­ut­ive branch enforce­ment agen­cies to adopt and publish policies to regu­late White House-agency contacts, codi­fy­ing long­stand­ing prac­tice.  foot­note53_f5qxz4a 53 See supra n. 157.  Congress has passed other laws that require exec­ut­ive branch docu­ments and records of activ­it­ies to be retained and disclosed in order to further Congress’ over­sight func­tions and the public’s interest in trans­par­ency and account­ab­il­ity.  foot­note54_mp8ot35 54 See Federal Records Act, 44 U.S.C. §§ 2101–2118, 2901–2910, 3101–3107, and 3301–3324 (requir­ing creation and reten­tion of agency records); Free­dom of Inform­a­tion Act, 5 U.S.C. § 552.  For instance, most White House docu­ments are publicly released after an admin­is­tra­tion has concluded, pursu­ant to the Pres­id­en­tial Records Act. foot­note55_faezw51 55 The Pres­id­en­tial Records Act, 44U.S.C.§§ 2201–2207. Pres­id­ents have consist­ently conformed to the Pres­id­en­tial Records Act (PRA) without ques­tion­ing its consti­tu­tion­al­ity. See Jonathan Turley, “Pres­id­en­tial Papers and Popu­lar Govern­ment: The Conver­gence of Consti­tu­tional and Prop­erty Theory in Claims of Owner­ship and Control of Pres­id­en­tial Records,” Cornell Law Review 88 (2003): 666–72. While the PRA has not faced a signi­fic­ant consti­tu­tional chal­lenge, the Supreme Court upheld the consti­tu­tion­al­ity of a PRA prede­cessor, the Pres­id­en­tial Record­ings and Mater­i­als Preser­va­tion Act, in Nixon v. Admin­is­trator of General Services, 433 U.S. 425 (1977) (hold­ing that requir­ing the public­a­tion of pres­id­en­tial records in no way “prevents the Exec­ut­ive Branch from accom­plish­ing its consti­tu­tion­ally assigned func­tions,” and discuss­ing the “abund­ant stat­utory preced­ent for the regu­la­tion and mandat­ory disclos­ure of docu­ments in the posses­sion of the Exec­ut­ive Branch”). See also Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991) (noting that, when enact­ing the Pres­id­en­tial Records Act, “Congress was . . . keenly aware of the separ­a­tion of powers concerns that were implic­ated by legis­la­tion regu­lat­ing the conduct of the Pres­id­ent’s daily oper­a­tions”).  The pres­id­ent does not have an abso­lute right to protect personal or White House contacts from disclos­ure.  foot­note56_nh9r4jl 56 See United States v. Nixon, 418 U.S. 683, 706–07.

PROPOSAL 8 
Congress should empower agency inspect­ors general to invest­ig­ate improper inter­fer­ence in law enforce­ment matters. 

Congress should estab­lish a clear mech­an­ism within the exec­ut­ive branch for invest­ig­at­ing instances of inap­pro­pri­ate inter­fer­ence with law enforce­ment for polit­ical or personal ends.

We recom­mend that Congress util­ize an over­sight mech­an­ism that already exists: agency inspect­ors general.

In 1978, Congress estab­lished inspect­ors general as inde­pend­ent, nonpar­tisan watch­dogs housed within the exec­ut­ive branch.  foot­note57_ni0ckaf 57 Inspector General Act of 1978, 5 U.S.C. App. § 1 et seq. (1978). Special inspect­ors general can also be appoin­ted to over­see the admin­is­tra­tion of tempor­ary govern­ment initi­at­ives, such as the Troubled Asset Relief Program in the Treas­ury Depart­ment. SeeVanessa K. Burrows, The Special Inspector General for the Troubled Asset Relief Program (SIGTARP), CRS Report No. R40099 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2009), https://fas.org/sgp/crs/misc/RS22981.pdf.  Their tradi­tional areas of author­ity relate to finan­cial integ­rity, with a mandate to erad­ic­ate fraud, waste, and abuse.  foot­note58_snrwjke 58 5 U.S.C. App. § 5.  They are empowered to conduct invest­ig­a­tions and issue reports relat­ing to the admin­is­tra­tion of their agen­cies’ programs and oper­a­tions, and they have a staff of invest­ig­at­ors.  foot­note59_helaoo0 59 Id. § 6(a).  Some inspect­ors general are nomin­ated by the pres­id­ent and confirmed by the Senate “without regard to polit­ical affil­i­ation and solely on the basis of integ­rity and demon­strated abil­ity in account­ing, audit­ing, finan­cial analysis, law, manage­ment analysis, public admin­is­tra­tion, or invest­ig­a­tions,”  foot­note60_8bwdly3 60 5 U.S.C. App. 3 § 3(a). Inspect­ors general are subject to removal by the pres­id­ent, with the pres­id­ent required to commu­nic­ate in writ­ing the reas­ons for the removal to both houses of Congress within 30 days of that action. Id. § 3(b).  while others are appoin­ted by agency heads.  foot­note61_yjq6tjj 61 Id. § 8G. See also“The Inspect­ors General,” Coun­cil of the Inspect­ors General on Integ­rity and Effi­ciency, 2014, avail­able at https://www.ignet.gov/sites/default/files/files/IG_Author­it­ies_Paper_-_Final_6–11–14.pdf.  All inspect­ors general report to and submit oper­at­ing budget requests to agency heads.  foot­note62_ibhi8qn 62 5 U.S.C. App. 3 §§ 3(a), 6(f)(1). Agency heads trans­mit the budget propos­als to the pres­id­ent, who submits them to Congress. Id. §§ 6(f)(2) – (3).  Inspect­ors general are subject to removal by the pres­id­ent, with the pres­id­ent required to commu­nic­ate in writ­ing the reas­ons for the removal to both houses of Congress within 30 days of that action.  foot­note63_isp3iry 63 Id. § 3(b).

Congress should expand the juris­dic­tion of agency inspect­ors general to expressly include invest­ig­a­tions into improper inter­fer­ence in law enforce­ment func­tions. Inspect­ors general argu­ably already have that author­ity under exist­ing law, which empowers them to invest­ig­ate “abuse” and viol­a­tions of agency policies.  foot­note64_nhad­nh6 64 Inspect­ors general do not currently have express stat­utory author­ity to invest­ig­ate polit­ical inter­fer­ence. When the Depart­ment of Justice Inspector General and Office of Profes­sional Respons­ib­il­ity invest­ig­ated polit­ical inter­fer­ence during the Bush admin­is­tra­tion’s U.S. Attor­ney firing scan­dal, the report the Offices co-authored explained that each of the two Offices had juris­dic­tion to invest­ig­ate certain aspects of U.S. Attor­ney and Depart­ment of Justice miscon­duct, and did not refer­ence improper White House inter­fer­ence in law enforce­ment. An Invest­ig­a­tion into the Removal of Nine U.S. Attor­neys in 2006, 10 n. 12(“OPR has juris­dic­tion to invest­ig­ate alleg­a­tions against U.S. Attor­neys that involve the exer­cise of their author­ity ‘to invest­ig­ate, litig­ate, or provide legal advice.’ The OIG has juris­dic­tion to invest­ig­ate all other alleg­a­tions against U.S. Attor­neys. See 5 U.S.C. App. 3 § 8E.”). The report also noted that, in the midst of congres­sional and media scru­tiny of the U.S. Attor­ney firings, Deputy Attor­ney General Paul McNulty recom­men­ded to Attor­ney General Alberto Gonzales that he direct OPR to conduct an invest­ig­a­tion into the removals of the U.S. Attor­neys. Id. at 92–93.  But a clear mandate, subject to clear stand­ards, is needed for such an import­ant and sens­it­ive func­tion.

Under this proposal the inspect­ors general would invest­ig­ate whether improper White House contacts influ­enced a specific law enforce­ment matter at their agency; it would not install an inspector general in the White House or empower an inspector general to go on open-ended, and poten­tially partisan, witch hunts. Inspector general invest­ig­a­tions are also constrained by DOJ guidelines,  foot­note65_zcd8o81 65 5 U.S.C. App. 6 § 6(e)(4) (“[t]he Attor­ney General shall promul­gate, and revise as appro­pri­ate, guidelines which shall govern the exer­cise of [inspect­ors gener­al’s] law enforce­ment powers”); John Ashcroft, Attor­ney General, “Attor­ney General Guidelines for Offices of Inspector General with Stat­utory Law Enforce­ment Author­ity” (offi­cial memor­andum, Wash­ing­ton, D.C.: Depart­ment of Justice, 2003) (requir­ing, inter alia, adher­ence to attor­ney general guidelines applic­able to crim­inal invest­ig­at­ive prac­tices and comple­tion of law enforce­ment train­ing program, and estab­lish­ing special proced­ures for invest­ig­a­tions involving senior exec­ut­ive branch offi­cials and other sens­it­ive targets).  profes­sional stand­ards published by the Coun­cil of Inspect­ors General for Integ­rity and Effi­ciency,  foot­note66_pltfrot 66 The Coun­cil of Inspect­ors General for Integ­rity and Effi­ciency publishes profes­sional stand­ards pursu­ant to the Inspector General Reform Act of 2008, 5 U.S.C. App. § 11(c)(2)(A) (2008), which require that invest­ig­a­tions be conduc­ted ethic­ally, with impar­ti­al­ity and objectiv­ity, and in accord­ance with all applic­able laws, rules, and regu­la­tions, guidelines from the Depart­ment of Justice and other prosec­ut­ing author­it­ies, and internal agency policies and proced­ures, with due respect for the rights and privacy of those involved. Qual­ity Stand­ards for Invest­ig­a­tions, Coun­cil of the Inspect­ors General for Integ­rity and Effi­ciency, 2011, avail­able at https://www.ignet.gov/sites/default/files/files/invprg1211appi.pdf.  and other controls in the Inspector General Act.  foot­note67_fjmq0u7 67 See, e.g., 5 U.S.C. App. 6 § 4(b) (requir­ing reviews to ensure compli­ance with stand­ards estab­lished by the comp­troller general of the United States for audits and that internal qual­ity controls are in place and oper­at­ing); Id. § 6(e)(7) (requir­ing estab­lish­ment of external review process, in consulta­tion with the attor­ney general, to ensure that adequate internal safe­guards and manage­ment proced­ures exist for exer­cise of law enforce­ment powers).  Congress should also direct the attor­ney general to issue guidelines outlining the stand­ards and proced­ures by which inspect­ors general are to invest­ig­ate improper inter­fer­ence.

This proposal also has the bene­fit of effi­ciency. It does not rein­vent the wheel. Inspect­ors general are already famil­iar with the roles and missions of their own agen­cies. They already have invest­ig­at­ors. They know their way around the build­ing. There­fore, we can add this import­ant feature of demo­cratic account­ab­il­ity without creat­ing — and paying for — a whole new bureau­cracy.  foot­note68_zhzd4qw 68 See Kath­leen Clark, “Toward More Ethical Govern­ment: An Inspector General for the White House,” Mercer Law Review 49 (1998): 553, 555–56, 564 (discuss­ing down­sides of inde­pend­ent coun­sel invest­ig­a­tions, which included expense, increased polit­ical use of ethics alleg­a­tions, and decreased public trust in govern­ment, and arguing that inspector general mech­an­ism helps promote ethical envir­on­ment); Letter from Walter M. Shaub, Senior Director for Ethics, Campaign Legal Center, to Trey Gowdy, Chair­man, and Elijah E. Cummings, Rank­ing Member, Commit­tee on Over­sight and Govern­ment Reform, United States House of Repres­ent­at­ives (Nov. 9, 2017): 13–15, avail­able at https://www.politico.com/f/?id=0000015f-a141-de5e-abff-bfd5436b0001 (advoc­at­ing for estab­lish­ment of inspector general with regu­lar juris­dic­tion over small agen­cies and limited special juris­dic­tion to conduct ethics invest­ig­a­tions through­out exec­ut­ive branch).

Ensure No One Is Above the Law 

Polit­ical lead­ers and their power­ful allies present a special chal­lenge to impar­tial enforce­ment of the law. When those in charge of law enforce­ment are the subject of law enforce­ment, there is a risk of abuse. Abuse sends a message that there are two sets of rules: a leni­ent one for the polit­ic­ally well-connec­ted and a far more unfor­giv­ing one for every­one else. That is why our system has built-in safe­guards to ensure that no one is above the law, from recusal rules to special prosec­utor laws. But when the pres­id­ent is involved, the system has two vulner­ab­il­it­ies that merit atten­tion: the possib­il­ity of abuse of the pardon power and the possib­il­ity of polit­ical inter­fer­ence into invest­ig­a­tions of the pres­id­ent, senior polit­ical aides, and close personal asso­ci­ates. The follow­ing recom­mend­a­tions would help protect against such abuse.

PROPOSAL 9 
Congress should require writ­ten justi­fic­a­tions from the pres­id­ent for pardons involving close asso­ci­ates. 

The Consti­tu­tion endows the pres­id­ent with the “power to grant reprieves and pardons for offences against the United States, except in cases of impeach­ment.”  foot­note69_f34ew51 69 U.S. Const. art. II, § 2, cl. 1.  This power allows a pres­id­ent to ensure that “inflex­ible adher­ence” to the law does not itself become a source of injustice.  foot­note70_jrl9sln 70 Margaret Colgate Love, “Rein­vent­ing the Pres­id­ent’s Pardon Power,” Federal Senten­cing Reporter 20 (2007): 6, avail­able at http://pardon­law.com/wp-content/uploads/pardon­law­im­port/FSR.Pardon.2007.final.pdf (quot­ing Alex­an­der Hamilton in Feder­al­ist No. 74 (“the crim­inal code of every coun­try partakes so much of neces­sary sever­ity that, without an easy access to excep­tions in favor of unfor­tu­nate guilt, justice would wear a coun­ten­ance too sanguin­ary and cruel”) and James Iredell, Address in the North Caro­lina Rati­fy­ing Conven­tion (“It is impossible for any general law to fore­see and provide for all possible cases that may arise; and there­fore an inflex­ible adher­ence to it, in every instance, might frequently be the cause of very great injustice.”)).  Pres­id­ents have also used pardons to heal national wounds, as George Wash­ing­ton did with the first pardons gran­ted to Whis­key Rebel­lion parti­cipants convicted of treason and as Gerald Ford and Jimmy Carter did by issu­ing amnesties to draft law viol­at­ors from the Viet­nam era.  foot­note71_5angujo 71 Margaret Colgate Love, “Rein­vent­ing the Pres­id­ent’s Pardon Power,” 6, n. 6; Proclam­a­tion 4483, 42 Fed. Reg. 4391 (Jan. 21, 1977) (Pres­id­ent Carter grant­ing pardon for viol­a­tions of the Select­ive Service Act, August 4, 1964 to March 28, 1973); Proclam­a­tion 4313, 39 Fed. Reg. 34511 (Sept. 16, 1974) (Pres­id­ent Ford creat­ing “amnesty discharge,” 32 C.F.R. § 724.112); see also The Feder­al­ist No. 74 (Alex­an­der Hamilton) (“in seasons of insur­rec­tion or rebel­lion, there are often crit­ical moments when a well-timed offer of pardon to the insur­gents or rebels may restore the tran­quil­ity of the common­wealth, and which, if suffered to pass unim­proved, it may never be possible after­wards to recall”).

By giving the pres­id­ent exclus­ive author­ity to exer­cise the pardon power, the Founders believed it would “natur­ally inspire scru­pu­lous­ness and caution.” foot­note72_hnt9rb2 72 The Feder­al­ist No. 74 (Alex­an­der Hamilton) (“The reflec­tion that the fate of a fellow-creature depended on his sole fiat, would natur­ally inspire scru­pu­lous­ness and caution.”). James Madison believed that the threat of impeach­ment would serve as a check on abuse of the pardon power: “There is one secur­ity in this case [a misuse of the pardon power by the pres­id­ent] to which gentle­men may not have adver­ted: if the Pres­id­ent be connec­ted, in any suspi­cious manner, with any person, and there be grounds to believe he will shel­ter him, the House of Repres­ent­at­ives can impeach him; they can remove him if found guilty; they can suspend him when suspec­ted, and the power will devolve on the Vice-Pres­id­ent.” Jonathan Elliot, ed., The Debates in the Several State Conven­tions on the Adop­tion of the Federal Consti­tu­tion (Phil­adelphia: J.B. Lippin­cott & co.; Wash­ing­ton, D.C.: Taylor & Maury, 1836–1859), 3:498, avail­able at https://memory.loc.gov/cgi-bin/ampage?collId=lled&file­Name=003/lled003.db&recNum=509&item­Link=r?ammem/hlaw:@field(DOCID+@lit(ed00318))%25230030509&link­Text=1. To ensure such “scru­pu­lous­ness and caution,” and to prevent abuse, for over a century, pres­id­ents have volun­tar­ily adhered to an estab­lished process for consid­er­ing prospect­ive pardons, over­seen by the Depart­ment of Justice’s Office of the Pardon Attor­ney.  foot­note73_syfpt70 73 Pres­id­ents began to rely on the attor­ney general for advice on pardons in 1854, though it was not until 1865 that the Office of the Clerk of Pardons was estab­lished in the Office of the Attor­ney General. See Margaret Colgate Love, “Rein­vent­ing the Pres­id­ent’s Pardon Power,” 6; see also “Depart­ment of Justice, Office of the Pardon Attor­ney. 1894 – Organ­iz­a­tion Author­ity Record,” National Archives Cata­log, accessed Sept. 10, 2018, avail­able at https://cata­log.archives.gov/id/10451179 (noting the admin­is­trat­ive history of the Pardon Attor­ney office).  Under this process, the pardon attor­ney reviews pardon applic­a­tions and makes writ­ten recom­mend­a­tions to the pres­id­ent based on published pardon guidelines.  foot­note74_q2go015 74 The Pardon Attor­ney submits recom­mend­a­tions to the pres­id­ent through the deputy attor­ney general. 28 C.F.R Part 1.6 (proced­ure for review­ing peti­tions and submit­ting recom­mend­a­tions to the pres­id­ent); 28 C.F.R. Part 0, Subpart G (deleg­at­ing author­ity to the Pardon Attor­ney and specify­ing that pardon recom­mend­a­tions to the pres­id­ent are submit­ted through the deputy attor­ney general).  The guidelines reflect the values of mercy and justice, and require consid­er­a­tion of factors includ­ing the applic­ant’s post-convic­tion conduct, the extent to which the applic­ant accep­ted respons­ib­il­ity for their crime, how long ago the crime took place, and the seri­ous­ness of the offense.  foot­note75_nta9hsr 75 Office of the United States Attor­neys, U.S. Attor­neys’ Manual (Wash­ing­ton, D.C.: Depart­ment of Justice, 2018), § 9–140.000 (“Pardon Attor­ney”), avail­able at https://www.justice.gov/usam/usam-9–140000-pardon-attor­ney#9–140.112.  Although the pres­id­ent remains free to ignore the pardon attor­ney’s recom­mend­a­tions, this process ensures that all pardon applic­a­tions are assessed in the same way without regard for the pres­id­ent’s personal or partisan polit­ical interests.

Contro­versy has arisen primar­ily when pres­id­ents have devi­ated from this stand­ard process.  foot­note76_6bneui4 76 See Margaret Colgate Love, “Rein­vent­ing the Pres­id­ent’s Pardon Power,” 6 (citing only three occa­sions between 1953 and 1999 where the Depart­ment of Justice’s process was not followed: Pres­id­ent Ford’s pardon of Pres­id­ent Nixon in 1974, Pres­id­ent Reagan’s 1981 pardon of two FBI offi­cials who had author­ized illegal surveil­lance of the homes of friends of the Weather Under­ground, and Pres­id­ent Bush’s 1992 pardon of six Iran-Contra defend­ants.); Samuel T. Morison, “The Polit­ics of Grace: On the Moral Justi­fic­a­tion of Exec­ut­ive Clem­ency,” Buffalo Crim­inal Law Review 9 (2005): 45 n. 85 (citing pardons of Pres­id­ent Nixon, FBI offi­cials, and Iran-Contra defend­ants as among those consti­tut­ing “roughly one percent of th[e] total” cases gran­ted between March 1945 and Janu­ary 2001 for which there was no prior Justice Depart­ment review).  There are, unfor­tu­nately, several recent examples of such contro­ver­sial pardons. Some pardons were criti­cized as inap­pro­pri­ate favors to donors or bene­fact­ors, like Pres­id­ent Clin­ton’s pardon of finan­cier Marc Rich  foot­note77_dp7i­f45 77 Pres­id­ent Clin­ton pardoned fugit­ive billion­aire Marc Rich hours before leav­ing office in 2001 after a care­fully orches­trated lobby­ing campaign that included Rich’s ex-wife, Denise Rich, who was a prom­in­ent donor to Demo­cratic Party commit­tees, Hillary Clin­ton’s senat­orial campaign, and the Clin­ton Found­a­tion. Josh Getlin, “Clin­ton Pardons a Billion­aire Fugit­ive, and Ques­tions Abound,” Los Angeles Times, Jan. 24, 2001, http://articles.latimes.com/2001/jan/24/news/mn-16268; Jackie Judd and David Ruppe, “Denise Rich Gave $450,000 to Clin­ton Library,” ABC News, Feb. 9, 2001, https://abcnews.go.com/Polit­ics/story?id=121846&page=1. The pardon was the subject of congres­sional and crim­inal invest­ig­a­tions for alleged bribery. The pardon was the subject of congres­sional and crim­inal invest­ig­a­tions for alleged bribery. Joe Conason, “What Sessions Should Tell Trump about Pardon­s—­Be­fore It’s Too Late,” National Memo, July 27, 2017, http://www.nation­al­memo.com/sessions-tell-trump-pardons/.  or Pres­id­ent George W. Bush’s pardon of real estate developer Isaac Toussie.  foot­note78_iffczu4 78 Isaac Toussie pleaded guilty in 2001 to using false docu­ments to have mort­gages insured by the Depart­ment of Hous­ing and Urban Devel­op­ment, and in 2002 to mail fraud. Ken Belson and Eric Licht­blau, “A Father, A Son, and a Short-Lived Pres­id­en­tial Pardon,” New York Times, Dec. 25, 2008, https://www.nytimes.com/2008/12/26/us/26par­don.html. The White House main­tained that when Pres­id­ent Bush gran­ted the pardon, neither he nor his advisers were aware that Toussie’s father had recently donated a total of $30,800 to Repub­lic­ans. Id.  In fact, Pres­id­ent Bush imme­di­ately rescin­ded the pardon follow­ing press reports that Toussie’s father had donated tens of thou­sands of dollars to Repub­lic­ans.  foot­note79_8eihzko 79 Id.  Other pardons were criti­cized as favors for former colleagues, like Pres­id­ent George W. Bush’s commut­a­tion of the prison sentence of Scooter Libby (former chief of staff to his vice pres­id­ent, Dick Cheney),  foot­note80_ujapzyd 80 Proclam­a­tion 8159, 72 Fed. Reg. 37095 (July 2, 2007), avail­able at https://www.gpo.gov/fdsys/pkg/FR-2007–07–06/pdf/07–3328.pdf; see alsoAmy Gold­stein, “Bush Commutes Libby’s Prison Sentence,” Wash­ing­ton Post, July 3, 2007, http://www.wash­ing­ton­post.com/wp-dyn/content/article/2006/03/28/AR2006032800858.html (review­ing the facts and summar­iz­ing contem­por­ary criti­cism of the commut­a­tion).  or Pres­id­ent George H.W. Bush’s pardon of former offi­cials involved in the Iran-Contra affair.  foot­note81_hmm52z5 81 Proclam­a­tion 6518, 57 Fed. Reg. 62145 (Dec. 24, 1992) (grant­ing clem­ency to Caspar Wein­ber­ger, Elli­ott Abrams, Duane Clar­ridge, Alan Fiers, Clair George, and Robert McFar­lane), avail­able at http://www.pres­id­ency.ucsb.edu/ws/?pid=20265; see also Walter Pincus, “Bush Pardons Wein­ber­ger in Iran-Contra Affair,” Wash­ing­ton Post, Dec. 25, 1992, http://www.wash­ing­ton­post.com/wp-dyn/content/article/2006/03/28/AR2006032800858.html (includ­ing inde­pend­ent coun­sel’s objec­tion that the pardons consti­tuted a “coverup”).

Reports that Pres­id­ent Trump has considered pardons for two former members of his campaign, Michael Flynn and Paul Mana­fort, have also drawn criti­cism, not only because these are his former asso­ci­ates. foot­note82_sprb­nc4 82 Flynn and Mana­fort are poten­tial witnesses in the special coun­sel invest­ig­a­tion into whether Russia interfered in the 2016 elec­tion, contrib­ut­ing to the condem­na­tion of the reports. Michael S. Schmidt, Jo Becker, Mark Mazz­etti, Maggie Haber­man, and Adam Gold­man, “Trump’s Lawyer Raised Prospect of Pardons for Flynn and Mana­fort,” New York Times, Mar. 28, 2018, https://www.nytimes.com/2018/03/28/us/polit­ics/trump-pardon-michael-flynn-paul-mana­fort-john-dowd.html.  Flynn and Mana­fort are poten­tial witnesses in an invest­ig­a­tion that may implic­ate the pres­id­ent, and the float­ing of pardons is seen by some as an attempt to lure posit­ive testi­mony, thereby obstruct­ing justice.  foot­note83_lnb69rh 83 See, e.g., Alex Whit­ing, “Why Dangling a Pardon Could Be an Obstruc­tion of Justice—Even If the Pardon Power Is Abso­lute,” Just Secur­ity, Mar. 28, 2018, https://www.just­se­cur­ity.org/54356/dangling-pardon-obstruc­tion-justice-even-pardon-power-abso­lute/; Sean Illing, “I Asked 11 Legal Experts If Trump’s Lawyer Obstruc­ted Justice,” Vox, Mar. 29, 2018, https://www.vox.com/2018/3/29/17174042/trump-pardons-mana­fort-flynn-mueller-probe.

While it is certainly an abuse of the pardon power to use it to advance one’s self-interest, that does not mean that Congress can or should try to limit the pres­id­ent’s power to make pardon determ­in­a­tions. Nor do we think it wise for Congress to try to restore long­stand­ing safe­guards by requir­ing the pres­id­ent to consult with the pardon attor­ney before making pardons. Instead, we propose a much more limited meas­ure designed to increase trans­par­ency around the exer­cise of the pardon power in cases rais­ing legit­im­ate ques­tions.

Limiting conflicts of interest 5W Graph­ics

Specific­ally, Congress should pass legis­la­tion requir­ing the pres­id­ent, in a small subset of cases, to explain his or her decision for pardons or grants of clem­ency in a writ­ten report to the House and Senate Judi­ciary Commit­tees. To minim­ize any burden on the pres­id­ent, the report­ing require­ment should apply only in cases where the indi­vidual seek­ing a pardon has a close personal, profes­sional, or finan­cial rela­tion­ship to the pres­id­ent — a family member, busi­ness part­ner, current or former employee or profes­sional colleague, or polit­ical contrib­utor — or to the pres­id­ent’s spouse, close family member, or busi­ness asso­ci­ate. In courts, similar rela­tion­ships typic­ally warrant recusal by a judge.  foot­note84_rmkdrbg 84 Model Code of Judi­cial Conduct R. 2.11.  The report should address whether and how the pres­id­ent considered the factors histor­ic­ally used by the pardon attor­ney in eval­u­at­ing requests.  foot­note85_70b6kuw 85 The factors considered by the Pardon Attor­ney include: (1) the perspect­ives of the prosec­utors and senten­cing judge; (2) the grav­ity of the offense; (3) the recip­i­ent’s accept­ance of respons­ib­il­ity; (4) the peti­tion­er’s crim­inal rehab­il­it­a­tion record; and (5) the need for relief. See U.S. Attor­neys’ Manual § 9–140.000.

This legis­la­tion would provide the public with some confid­ence that the pardon power is being used to further justice, rather than to favor pres­id­en­tial allies or to reduce the pres­id­ent’s own crim­inal liab­il­ity. At the same time, it would create an avenue for polit­ical account­ab­il­ity for abuse of an other­wise unchecked author­ity. And it would provide Congress with an oppor­tun­ity to respond to abuse if the pres­id­ent flouts the report­ing require­ment.

There is ample support and preced­ent for greater trans­par­ency in the pardon process.  foot­note86_wxmilnc 86 Many schol­ars and writers on the pardon power have expressed support for greater pardon trans­par­ency, through increased congres­sional involve­ment or other­wise. See Glenn H. Reyn­olds, “Congres­sional Control of Pres­id­en­tial Pardons,” Nevada Law Journal Forum 2 (2018) (Congress could require that the pres­id­ent submit pardon explan­a­tions to Congress, that pardons be recor­ded and preserved by the National Archives, or that the arch­iv­ist main­tain an index of pardons organ­ized by crimes and circum­stances); Kath­leen Dean Moore, Pardons: Justice, Mercy, and the Public Interest (New York: Oxford Univer­sity Press, 1989) (pardons should be accom­pan­ied by a writ­ten explan­a­tion of the reas­ons); Margaret Colgate Love, Rein­vig­or­at­ing the Federal Pardon Process: What the Pres­id­ent Can Learn from the States, Amer­ican Consti­tu­tion Soci­ety, 2013, 9–10, avail­able at https://www.acslaw.org/wp-content/uploads/2018/04/Love_-_Rein­vig­or­at­ing_the_Federal_Pardon_Process_0.pdf (the pres­id­ent should publicly announce a pardon­ing policy and publish an annual report setting forth the reas­ons for each grant of clem­ency); P.S. Ruck­man, Jr., “Prepar­ing the Pardon Power for the 21st Century,” Univer­sity of St. Thomas Law Journal, 12 (2016): 472–75, avail­able at http://www.rvc.cc.il.us/faclink/pruck­man/pardon­charts/JEdit.htm (propos­ing that a clem­ency board publish data on the effi­ciency of processing pardon applic­a­tions, and further propos­ing a return to the pre-1933 prac­tice of pres­id­ents submit­ting detailed annual reports on pardons to Congress); Brendan Koerner, “It’s Time to Make the Clem­ency System Less Opaque,” Wired, Oct. 7, 2016, https://www.wired.com/2016/10/time-make-clem­ency-system-less-opaque/ (propos­ing an “online clem­ency-monit­or­ing system,” essen­tially a digital version of the pre-1933 report).  From 1885 to 1932, pres­id­ents submit­ted detailed reports to Congress about pardons and clem­en­cies they had gran­ted, which included, in many (if not most) instances, some explan­a­tion for the grants. These reports even noted if there were disagree­ments between the pres­id­ent and the pardon attor­ney or the attor­ney general and whether the applic­a­tions did not go through “normal chan­nels.”  foot­note87_zal5y0u 87 Ruck­man, “Prepar­ing the Pardon Power for the 21st Century,” 475–76. It is unclear why this process was aban­doned. Accord­ing to one reporter, the process was initially stopped as part of a broader cost-cutting meas­ure to elim­in­ate print­ing during the Great Depres­sion, and it was not resumed to prevent embar­rass­ment to those whose crimes were being pardoned. Koerner, “It’s Time to Make the Clem­ency System Less Opaque.”  Even without a mandat­ory report­ing require­ment, some recent pres­id­ents have felt compelled to explain their use of the pardon power.  foot­note88_kljh5yf 88 See, e.g., William Jeffer­son Clin­ton, “My Reas­ons for the Pardons,” New York Times, Feb. 18, 2001, https://www.nytimes.com/2001/02/18/opin­ion/my-reas­ons-for-the-pardons.html; Andrew Novak, “Trans­par­ency and Compar­at­ive Exec­ut­ive Clem­ency: Global Lessons for Pardon Reform in the United States,” Michigan Journal of Legal Reform 49 (2016): 842 (citing remarks by Pres­id­ent Ford on grant­ing a pardon to Pres­id­ent Nixon, and a proclam­a­tion by Pres­id­ent Bush on grant­ing clem­ency to former Secret­ary of Defense Caspar Wein­ber­ger and others). SeeR­obert Pear, “Pres­id­ent Reagan Pardons 2 Ex-F.B.I. Offi­cials in 1970’s Break-Ins,” New York Times, Apr. 16, 1981, avail­able at https://www.nytimes.com/1981/04/16/us/pres­id­ent-reagan-pardons-2-ex-fbi-offi­cials-in-1970-s-break-ins.html (citing Pres­id­ent Reagan’s state­ment on pardon­ing two former FBI offi­cials).  Report­ing require­ments are also in place in at least 14 states, which require governors to provide reas­ons for each use of their pardon author­ity. foot­note89_2ybrfhi 89 Colo. Const. art. IV, § 7; Ind. Const. art. V, § 17; Iowa Const. art. IV, § 16; Ky. Const. § 77; Md. Const. art. II, § 20; Ohio Const. art. III, § 11; N.J. Stat. Ann. § 2A:167–3.1; Or. Rev. Stat. § 144.660; Tenn. Code Ann. §§ 40–27–101, 107; Va. Const. art. V, § 12; Wash. Const. art. III, § 11; W. Va. Const. art. 7, § 11; Wis. Const. art. V, § 6; Wyo. Const. art. 4, § 5. See gener­al­ly­Mar­garet Colgate Love, “Rein­vig­or­at­ing the Federal Pardon Process: What the Pres­id­ent Can Learn from the States,” Univer­sity of St. Thomas Law Journal 9 (2013): 743–51. For a discus­sion of the bene­fits and draw­backs of instat­ing a reas­ons require­ment, see Daniel T. Kobil, “Should Clem­ency Decisions Be Subject to a Reas­ons Require­ment?” Federal Senten­cing Reporter 13 (2000): 150.  There are currently at least three bills pending in Congress that aim to increase the trans­par­ency and prevent abuse of the pardon power.  foot­note90_ize4id3 90 See Pres­id­en­tial Pardon Trans­par­ency Act of 2017, H.R. 3489, 115th Cong. (2017) (requir­ing that the name of the person pardoned, the full text of the reprieve, and the date of issue is published in the Federal Register); Abuse of the Pardon Preven­tion Act, H.R. 5551 & S.2770, 115th Cong. (2018) (direct­ing the attor­ney general to produce invest­ig­at­ive mater­i­als to Congress in the event of certain pardons gran­ted by the pres­id­ent).

We do not believe that this limited report­ing require­ment would unduly burden the exec­ut­ive branch. There have been on aver­age only 193 acts of clem­ency a year going back to 1900.  foot­note91_oy1d­db1 91 We calcu­lated this aver­age from the yearly figures provided by the Pardon Attor­ney. “Clem­ency Stat­ist­ics,” U.S. Depart­ment of Justice, Office of the Pardon Attor­ney, accessed Aug. 23, 2018,https://www.justice.gov/pardon/clem­ency-stat­ist­ics. In 2014, Pres­id­ent Obama announced an initi­at­ive for federal inmates to have their sentences commuted or reduced if they met certain factors. The initi­at­ive resul­ted in 583 and 1,043 commut­a­tions in 2015 and 2016, respect­ively. Without these two years, the aver­age drops further.  Only a minute number of these would be subject to the report­ing require­ment. Indeed, at least one former U.S. pardon attor­ney has called for a return to the pre-1933 policy of report­ing to Congress on all grants of clem­ency,  foot­note92_g0dgnl5 92 Former Pardon Attor­ney Margaret Colgate Love argues that Pres­id­ent Roosevelt’s 1933 “decision to stop publish­ing reas­ons for grants deprived the public of the factual predic­ate neces­sary to hold pardon decision-makers account­able and rein­forced the impres­sion that pardon­ing was myster­i­ous, capri­cious, and possibly corrupt. It also encour­aged both the pres­id­ent and the Justice Depart­ment to think that they did not need to be account­able to the public for pardon­ing.” Margaret Colgate Love, Rein­vig­or­at­ing the Federal Pardon Process: What the Pres­id­ent Can Learn from the States, Amer­ican Consti­tu­tion Soci­ety, 2013, 9–10, avail­able at https://www.acslaw.org/wp-content/uploads/2018/04/Love_-_Rein­vig­or­at­ing_the_Federal_Pardon_Process_0.pdf.  though we do not believe we need to go that far. In short, the risk of added burden is far outweighed by the account­ab­il­ity that further trans­par­ency would bring.

Finally, analo­giz­ing from other report­ing require­ments Congress has imposed on the pres­id­ent, such as report­ing to Congress the reas­ons for remov­ing inspect­ors general (in the Inspector General Act)  foot­note93_j4tqz5j 93 5 U.S.C. App. 3 § 3(b).  or making White House docu­ments avail­able to Congress (in the Pres­id­en­tial Records Act),  foot­note94_r6jiffu 94 44 U.S.C. § 2201–2209.  we believe that such a report­ing require­ment is within Congress’s consti­tu­tional author­ity.  foot­note95_1taplfn 95 Congress also requires disclos­ure of foreign intel­li­gence inform­a­tion to congres­sional intel­li­gence commit­tees despite the pres­id­ent bear­ing “primary respons­ib­il­ity for the scope and conduct of foreign intel­li­gence activ­it­ies” and acting as “the sole organ of the nation in foreign rela­tions.” Philip A. Laco­v­ara, “Pres­id­en­tial Power to Gather Intel­li­gence: The Tension between Article II and Amend­ment IV,” Law & Contem­por­ary Prob­lems 40, no. 3 (1976): 107.SeeN­a­tional Secur­ity Act of 1947, 50 U.S.C. §§ 3001, 3043(a)(1), 3091(a)(1), 3093(c) (requir­ing the pres­id­ent to trans­mit to Congress an annual report on the national secur­ity strategy of the United States; to keep congres­sional intel­li­gence commit­tees fully and currently informed of intel­li­gence activ­it­ies; to provide congres­sional intel­li­gence commit­tees writ­ten find­ings that covert actions are neces­sary, and, in instances when such find­ings are not repor­ted to the commit­tees, to provide a state­ment of the reas­ons for not giving prior notice, with an oblig­a­tion to disclose the find­ing or provide an explan­a­tion for its contin­ued with­hold­ing within 180 days); Intel­li­gence Author­iz­a­tion Act for Fiscal Year 2015, Pub. L. No. 113–293, 128 Stat. 3990–4008.  Requir­ing a pres­id­ent to state the reas­ons for grant­ing pardons in limited instances does not control or limit the pres­id­ent’s abil­ity to grant a pardon.  foot­note96_k9seg5j 96 The Supreme Court has held that, in some circum­stances, the pres­id­ent can be required to disclose inform­a­tion without viol­at­ing the separ­a­tion of powers doctrine.United States v. Nixon, 418 U.S. 683, 706–07 (1974); see alsoReyn­olds, “Congres­sional Control of Pres­id­en­tial Pardons,” 33–34 (“Although Congress cannot tie the pres­id­ent’s hands, it seems likely that it could take substan­tial steps to ensure that, under certain circum­stances, those hands perform their actions in the open—and if not open to the entire public, then at least behind closed doors to Congress. Rules provid­ing for such trans­par­ency would very likely with­stand consti­tu­tional scru­tiny given that a pardon is, by its nature, a public act.”).  And it helps Congress enforce other consti­tu­tional provi­sions and better exer­cise its powers.  foot­note97_grtj7yh 97 For instance, trans­par­ency can help Congress hold the pres­id­ent account­able, where appro­pri­ate, pursu­ant to its impeach­ment power. The Supreme Court has also recog­nized that the pardon power is appro­pri­ately limited by other consti­tu­tional provi­sions, such as the Spend­ing Clause, Hart v. United States, 118 U.S. 62, 67 (1886) (explain­ing that pardons cannot have the effect of author­iz­ing a govern­mental payment not author­ized by Congress), the Fifth Amend­ment priv­ilege against self-incrim­in­a­tion, Burdick v. United States, 236 U.S. 79, 93–94 (1915) (“[T]he power of the Pres­id­ent under the Consti­tu­tion to grant pardons and the right of a witness [against self-incrim­in­a­tion] must be kept in accom­mod­a­tion. Both have sanc­tion in the Consti­tu­tion, and it should, there­fore, be the anxi­ety of the law to preserve both, to leave to each its proper place.”), and the Fifth Amend­ment’s Due Process Clause, Ohio Adult Parole Auth. v. Wood­ard, 523 U.S. 272, 289 (1998) (J. O’Con­nor, concur­ring) (“some minimal proced­ural safe­guards apply to clem­ency proceed­ings”).

PROPOSAL 10 
Congress should pass a resol­u­tion expressly and categor­ic­ally condemning self-pardons. 

In recent months, the pres­id­ent has raised the possib­il­ity of using the pardon power to absolve himself of crim­inal liab­il­ity — an idea that has gone from polit­ic­ally unthink­able to a pres­id­en­tially asser­ted “abso­lute right.”  foot­note98_3g7uqm6 98 Donald J. Trump (@real­Don­aldTrump), “As has been stated by numer­ous legal schol­ars, I have the abso­lute right to PARDON myself, but why would I do that when I have done noth­ing wrong? In the mean­time, the never ending [sic] Witch Hunt, led by 13 very Angry and Conflic­ted Demo­crats (& others) contin­ues into the mid-terms!” Twit­ter, June 4, 2018, 5:35 a.m., https://twit­ter.com/real­don­aldtrump/status/1003616210922147841.  For a coun­try born in revolt against a king, it is hard to imagine an act more damaging to the prin­ciple that no one is above the law than a self-pardon by the pres­id­ent.

No pres­id­ent has ever pardoned himself, but two have now considered it. In 1974, Pres­id­ent Nixon explored the possib­il­ity of a “self-pardon” before resign­ing, prompt­ing the Depart­ment of Justice’s Office of Legal Coun­sel (OLC) to opine that the pres­id­ent cannot pardon himself, based on the “funda­mental rule that no one may be a judge in his own case.”  foot­note99_j91o0qi 99 Pres­id­en­tial or Legis­lat­ive Pardon of the Pres­id­ent, 1 Op. O.L.C. Supp. 370 (1974), avail­able at https://www.justice.gov/sites/default/files/olc/opin­ions/1974/08/31/op-olc-supp-v001-p0370_0.pdf.

Rather than wait­ing to criti­cize such an act after the fact, Congress should try to prevent this offense to the rule of law by passing a resol­u­tion making clear it opposes so-called “self-pardons” and believes they are an uncon­sti­tu­tional exer­cise of the pardon power. The resol­u­tion should also make clear that Congress will initi­ate impeach­ment proceed­ings if the pres­id­ent uses the pardon power to try to pardon himself and could express concern about, and poten­tial responses to, other abuses of the pardon power that suggest public corrup­tion or lack of regard for rule of law and separ­a­tion of powers prin­ciples.  foot­note100_ksu3ggp 100 Those poten­tial abuses include pardons of family members or polit­ical support­ers that would under­mine the public’s confid­ence in equal justice, or pardons of public offi­cials who have viol­ated the public’s trust or their funda­mental rights, signal­ing to other offi­cials that they may do the same with impun­ity. Such a resol­u­tion would also respond to the recent pardon of former Arizona sher­iff Joe Arpaio, who was convicted of crim­inal contempt for ignor­ing a court order to stop uncon­sti­tu­tional conduct, and recent spec­u­la­tion that Pres­id­ent Trump could issue pardons to his son and son-in-law. See, e.g., Carol Leon­nig, Ashley Parker, Rosalind Held­er­man, and Tom Hamburger, “Trump Team Seeks to Control, Block Mueller’s Russia Invest­ig­a­tion,” Wash­ing­ton Post, July 21, 2017, http://wapo.st/2uH7sqO (report­ing that Trump has asked his advisers about his power to pardon aides, family members, and even himself). Pres­id­ent Trump is also consid­er­ing pardon­ing former Illinois Governor Rod Blago­jevich, who is serving a prison sentence follow­ing convic­tions for public corrup­tion. Jason Meisne, “Trump Says He’s Consid­er­ing Commut­ing Sentence of Imprisoned Former Gov. Rod Blago­jevich,” Chicago Tribune, May 31, 2018, http://www.chica­g­o­tribune.com/news/local/break­ing/ct-met-illinois-governor-blago­jevich-trump-20180531-story.html.

There is preced­ent for this kind of congres­sional resol­u­tion.  foot­note101_q7wr­prr 101 See, e.g., H. Con. Res. 107, 112th Cong. (2012) (express­ing the sense of Congress that use of milit­ary force without prior congres­sional author­iz­a­tion is an impeach­able offense).  At least 33 “sense of” Congress resol­u­tions have been intro­duced in Congress to disap­prove, censure, or condemn a pres­id­ent’s actions, with a 1912 resol­u­tion condemning Pres­id­ent Taft being the latest that was adop­ted.  foot­note102_cxce40q 102 Jane A. Hudiberg and Chris­topher M. Davis, Resol­u­tions to Censure the Pres­id­ent: Proced­ure and History, CRS Report No. R45087 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2018), https://fas.org/sgp/crs/misc/R45087.pdf.  Some members of Congress have recently argued for a more signi­fic­ant response — like amend­ing the Consti­tu­tion to expressly limit the pres­id­ent’s pardon power  foot­note103_k00260h 103 Repres­ent­at­ives Al Green and Steve Cohen have proposed amend­ments to the Consti­tu­tion to expressly prohibit self-pardons. H.J. Res. 115, 115th Cong. (2017) (“The Pres­id­ent shall have no power to grant to himself a reprieve or pardon for an offense against the United States”); H.J. Res. 120, 115th Cong. (2017) (prohib­it­ing self-pardons and pardons for the pres­id­ent’s family members, current or former members of the pres­id­ent’s admin­is­tra­tion, or staff from the pres­id­ent’s campaigns).  — with three bills pending in the current Congress aiming to do so.  foot­note104_oyl27s4 104 See supra nn. 209, 222. Members of Congress have intro­duced several other propos­als to amend the pardon power over the years, includ­ing a 1974 proposal to give a two-thirds major­ity of Congress the power to reject pardons, resol­u­tions in the 1990s to prohibit pre-convic­tion pardons, a 2001 proposal to prohibit pardons during lame-duck pres­id­en­cies, and a 2009 resol­u­tion disap­prov­ing of pardons during the final 90 days of a pres­id­ent’s term. Kristen H. Fowler, “Limit­ing the Federal Pardon Power,” Indi­ana Law Journal 83 (2008): 1660–61; H Res. 9, 111th Cong. (2009).  In fact, Rep. Karen Bass (D-Calif.) proposed a similar resol­u­tion in 2017 disap­prov­ing of a self-pardon or a pardon for any member of the pres­id­ent’s family, but the resol­u­tion has not attrac­ted bipar­tisan support.  foot­note105_k9a0x3x 105 H. Res. 523, 115th Cong. (2017).

A strong bipar­tisan resol­u­tion would send an import­ant message that Congress will hold the pres­id­ent account­able for any attempt at self-pardon.

PROPOSAL 11 
Congress should pass legis­la­tion to protect special coun­sels from improper removal. 

There is also risk of abuse when a law enforce­ment invest­ig­a­tion implic­ates high level govern­ment offi­cials — espe­cially the pres­id­ent. At minimum, invest­ig­at­ors must be secure in the know­ledge that their pursuit of justice will not result in their termin­a­tion. And the Amer­ican public must be confid­ent that even our highest-rank­ing offi­cials are subject to the rule of law.

For at least the last several decades, the Amer­ican public and Congress have consist­ently suppor­ted efforts to insu­late prosec­utorial decisions from improper partisan or personal consid­er­a­tions. For instance, in the imme­di­ate after­math of the Water­gate special prosec­utor’s firing during the Saturday Night Massacre,  foot­note106_ustkqgq 106 See infra at 16 (discuss­ing the Saturday Night Massacre).  public opin­ion shif­ted in support of impeach­ing Pres­id­ent Richard Nixon,  foot­note107_nap3wu8 107 One poll found that support for Pres­id­ent Nixon’s impeach­ment nearly doubled, from 23 percent to 44 percent in favor, after the epis­ode. Asso­ci­ated Press, “Poll Shows Many for Impeach­ment,” Spokane Daily Chron­icle, Oct. 23, 1973, avail­able at https://news.google.com/news­pa­pers?id=kJNYAAAAIBAJ&sjid=VvgDAAAAIBAJ&pg=2407,2360158&dq=oliver-quayle&hl=en. Gallup polls showed a steady increase in support for Pres­id­ent Nixon’s impeach­ment after the firings. Andrew Kohut, “How the Water­gate Crisis Eroded Public Support for Richard Nixon,” Pew Research Center, Aug. 8, 2014, http://www.pewre­search.org/fact-tank/2014/08/08/how-the-water­gate-crisis-eroded-public-support-for-richard-nixon/.  members of Congress intro­duced impeach­ment resol­u­tions,  foot­note108_debzrnt 108 Twenty-one members of Congress intro­duced resol­u­tions call­ing for Pres­id­ent Nixon’s impeach­ment. Allen McDuffee, “The Saturday Night Massacre Actu­ally Sped up Nixon’s Polit­ical Demise,” Timeline, May 10, 2017, https://timeline.com/saturday-night-massacre-nixon-1f7c2565c0d8.  and a federal district court judge ruled that the firing of the special prosec­utor was unlaw­ful.  foot­note109_pcgl8us 109 Nader v. Bork, 366 F. Supp. 104, 108 (D.D.C. 1973) (“[I]n the absence of a find­ing of extraordin­ary impro­pri­ety[,] [the firing] was in clear viol­a­tion of an exist­ing Justice Depart­ment regu­la­tion having the force of law and was there­fore illegal.”).  A few years later, Congress enacted the now-expired Inde­pend­ent Coun­sel Law, along with the Civil Service Reform Act of 1978, which codi­fied the prin­ciple that federal employ­ees (specific­ally, members of the civil service) should be insu­lated from admin­is­tra­tions’ polit­ical whims.  foot­note110_y44t­b32 110 5 U.S.C. § 2301(b)(2) (mandat­ing that employ­ees and applic­ants for employ­ment receive fair and equit­able treat­ment without regard to polit­ical affil­i­ation); 5 U.S.C. § 2301(b)(8)(A) (protect­ing employ­ees from coer­cion for partisan polit­ical purposes).

In 1999, after Congress declined to renew the inde­pend­ent coun­sel stat­ute, the Depart­ment of Justice adop­ted regu­la­tions laying out a process for appoint­ing a special coun­sel to pursue invest­ig­a­tions of White House offi­cials or other senior polit­ical appointees. foot­note111_g04n6ra 111 28 C.F.R. § 600.1. Special coun­sel regu­la­tions were imple­men­ted after the expir­a­tion of the inde­pend­ent coun­sel stat­ute that same year. The Office of Inde­pend­ent Coun­sel was created pursu­ant to the Ethics in Govern­ment Act of 1978. The stat­ute empowered the attor­ney general to peti­tion a special three-judge panel of the U.S. Court of Appeals for the District of Columbia to name an inde­pend­ent coun­sel upon the receipt of cred­ible alleg­a­tions of crim­inal miscon­duct by certain high-level exec­ut­ive branch person­nel whose prosec­u­tion by the admin­is­tra­tion might give rise to an appear­ance of a conflict of interest. The attor­ney general could remove the inde­pend­ent coun­sel for “good cause, phys­ical or mental disab­il­ity.”  The special coun­sel is appoin­ted by the attor­ney general and may only be removed for “miscon­duct, derel­ic­tion of duty, inca­pa­city, conflict of interest, or for good cause.”  foot­note112_yis04gm 112 28 C.F.R. § 600.7(d).  These provi­sions are meant to protect the special coun­sel from actual or perceived threats that could other­wise influ­ence or impede his or her invest­ig­a­tion, while provid­ing a mech­an­ism to hold the special coun­sel account­able in the event of miscon­duct.

To be sure, tenure protec­tions have not kept pres­id­ents from brist­ling at invest­ig­a­tions by inde­pend­ent or special coun­sels. Pres­id­ent Clin­ton, for example, famously sparred with Inde­pend­ent Coun­sel Kenneth Starr during his invest­ig­a­tion. foot­note113_ttl7o9m 113 See, e.g., Darren Samuel­sohn, “Trump’s War against Mueller Borrows from Bill Clin­ton’s Play­book,” Politico, June 21, 2018, https://www.politico.com/story/2018/06/21/trump-mueller-clin­ton-inde­pend­ent-coun­sel-660491; Don Van Natta, Jr., “White House’s All-Out Attack on Starr Is Paying Off, with his Help,” New York Times, Mar. 2, 1998, https://www.nytimes.com/1998/03/02/us/white-house-s-all-out-attack-on-starr-is-paying-off-with-his-help.html.  Never­the­less, recent state­ments and actions by Pres­id­ent Trump suggest a far more seri­ous threat to Special Coun­sel Robert Mueller’s invest­ig­a­tion, rein­for­cing the import­ance of the depart­ment’s protec­tions against removal, while simul­tan­eously demon­strat­ing why Congress should pass a law to protect the special coun­sel from removal without cause, rather than rely­ing on exec­ut­ive branch regu­la­tions that can be amended or rescin­ded.

To give a partial review: After Pres­id­ent Trump fired FBI Director James Comey, at least in part because of “this Russia thing,” foot­note114_qlhk­bge 114 David Smith, Julian Borger and Lauren Gambino, “Donald Trump Admits ‘This Russia Thing’ Part of Reas­on­ing for Firing Comey,” The Guard­ian, May 12, 2017, https://www.theguard­ian.com/us-news/2017/may/11/donald-trump-james-comey-firing-russia-invest­ig­a­tion.  Deputy Attor­ney General Rod Rosen­stein appoin­ted Special Coun­sel Robert Mueller to continue the invest­ig­a­tion. Since then, Pres­id­ent Trump has repeatedly accused Mueller and his team of having “conflicts of interest” and has regu­larly referred to the invest­ig­a­tion as a “witch hunt.” foot­note115_2bot­mfi 115 The Pres­id­ent has sought to under­mine Special Coun­sel Mueller’s fitness to lead an inde­pend­ent invest­ig­a­tion of Russian inter­fer­ence in the 2016 elec­tion, accus­ing Special Coun­sel Mueller and his team of having conflicts of interest. See, e.g., Karoun Demirjian, “Conser­vat­ive Repub­lic­ans Demand Mueller Recuse Himself over Uranium Deal,” Wash­ing­ton Post, Nov. 3, 2017, http://wapo.st/2zhDdsP; Adam Edel­man, “Trump Slams Mueller Russia Probe, Accuses Team of Having ‘Unre­vealed Conflicts of Interest,’” NBC, May 7, 2018, https://www.nbcnews.com/polit­ics/donald-trump/trump-slams-mueller-russia-probe-accuses-team-having-unre­vealed-conflicts-n871866.  He reportedly ordered Mueller’s firing in June of 2017 but walked back the order after White House Coun­sel Donald F. McGahn threatened to resign.  foot­note116_4hz3s9d 116 Michael S. Schmidt and Maggie Haber­man, “Trump Ordered Mueller Fired, but Backed off When White House Coun­sel Threatened to Quit,” New York Times, Jan. 25, 2018, https://www.nytimes.com/2018/01/25/us/polit­ics/trump-mueller-special-coun­sel-russia.html; Neal Katyal, “Trump or Congress Can Still Block Robert Mueller. I Know. I Wrote the Rules,” Wash­ing­ton Post, May 19, 2017, http://wapo.st/2qHg­gce.  He has also made state­ments that appear inten­ded to limit the scope of the invest­ig­a­tion, stat­ing that if the invest­ig­a­tion veers into a review of his personal finances that would cross a “red line.”  foot­note117_xultlnz 117 “Excerpts From the Times’s Inter­view With Trump,” New York Times, July 19, 2017, https://www.nytimes.com/2017/07/19/us/polit­ics/trump-inter­view-tran­script.html?_r=1.  Pres­id­ent Trump has also publicly berated those he holds respons­ible for appoint­ing the special coun­sel, includ­ing threat­en­ing to fire Attor­ney General Jeff Sessions because of Session­s’s decision to follow Depart­ment of Justice rules and recuse himself from the invest­ig­a­tion  foot­note118_uwl8gee 118 Max Green­wood, “Trump: Sessions Recusal ‘Unfair’ to Me,” The Hill, July 19, 2017, http://thehill.com/home­news/admin­is­tra­tion/342843-trump-sessions-recusal-unfair-to-me.  and publicly attack­ing Rosen­stein over the Mueller appoint­ment.  foot­note119_lers7xi 119 Michael Shear, Charlie Savage and Maggie Haber­man, “Trump Attacks Rosen­stein in Latest Rebuke of Justice Depart­ment,” New York Times, June 16, 2017, https://www.nytimes.com/2017/06/16/us/polit­ics/trump-invest­ig­a­tion-comey-russia.html.

Notably, of course, the pres­id­ent has not yet removed the special coun­sel. The crit­ical Depart­ment of Justice regu­la­tions forbid him from doing so, but they are hardly a guar­an­tee that he will not even­tu­ally do so. Because the current protec­tions are merely regu­la­tions created by the Depart­ment of Justice rather than law, the exec­ut­ive branch can repeal or modify them without involving Congress.  foot­note120_7x7r­co5 120 Though it is not clear whether the regu­la­tions are subject to the Admin­is­trat­ive Proced­ure Act’s “notice-and-comment” rule­mak­ing process (indeed, the regu­la­tions were promul­gated by former Attor­ney General Reno without going through that process), legal schol­ars agree there is an avenue for the exec­ut­ive to rescind the regu­la­tions, either through the APA’s rule­mak­ing proced­ure or more exped­i­tiously. See, e.g., Katyal, “Trump or Congress Can Still Block Mueller” (“Trump could order the special coun­sel regu­la­tions repealed. . . .”); Josh Black­man, “Can the Special Coun­sel Regu­la­tions Be Unilat­er­ally Revoked?” Lawfare, July 5, 2018, https://www.lawfareb­log.com/can-special-coun­sel-regu­la­tions-be-unilat­er­ally-revoked (though the regu­la­tions could be revoked, the special coun­sel may have stand­ing to chal­lenge a rescis­sion that is “arbit­rary and capri­cious”). Cf. Nader, 366 F. Supp. at 108 (“An agency’s power to revoke its regu­la­tions is not unlim­ited—such action must be neither arbit­rary nor unreas­on­able.”) citing Kelly v. U.S. Dep’t of Interior, 339 F. Supp. 1095 (E.D. Cal 1972).

Pres­id­ent Trump’s aggress­ive actions and state­ments against the Russia invest­ig­a­tion, as well as Special Coun­sel Mueller and his team, have left many to fear that his admin­is­tra­tion will even­tu­ally repeal or modify the current DOJ regu­la­tions, foot­note121_n73dgu2 121 See, e.g., Alexi McCam­mond, “Demo­crats Worry Trump Will Fire Mueller,” Axios, Oct. 30, 2018, https://www.axios.com/demo­crats-worry-trump-will-fire-mueller-1513306540–8e68256f-94a7–4c3c-9d7c-0c3af1386e59.html; Nich­olas Kris­tof, “The Nation Will Pay If Trump Fires Mueller,” New York Times, Apr. 11, 2018, https://www.nytimes.com/2018/04/11/opin­ion/fire-mueller-trump.html; Mark Warner, “Congress Must Draw ‘Red Line’ to Protect Mueller, Warn Trump against Firing and Pardons: Mark Warner,” USA Today, Mar. 18, 2018, https://www.usat­oday.com/story/opin­ion/2018/03/18/congress-protect-robert-mueller-warn-donald-trump-no-firing-no-pardons-senator-mark-warner-column/435883002/.  or that a future pres­id­ent facing a special coun­sel he or she deems hostile may be emboldened to do so. It is increas­ingly clear that special coun­sel protec­tions need to be enshrined in a stat­ute. For these reas­ons:

  • Congress should pass legis­la­tion to shield special coun­sel invest­ig­a­tions from improper polit­ical inter­fer­ence. The legis­la­tion should require that the special coun­sel may only be removed for cause, and it should estab­lish judi­cial review of any for-cause determ­in­a­tion.
Making tax returns public 5W Graph­ics

The Task Force recom­mends support­ing the bipar­tisan Special Coun­sel Inde­pend­ence and Integ­rity Act (S. 2644),  foot­note122_qbhoxlj 122 Special Coun­sel Inde­pend­ence and Integ­rity Act, S. 2644, 115th Cong. (2018), avail­able at <a href="https://www.congress.gov/115/bills/s2644/BILLS-115s2644rs.pdf">https://www.congress.gov/115/bills/s2644/BILLS-115s2644rs.pdf</a>.  intro­duced by Sens. Lind­say Graham (R-S.C.), Thom Tillis (R-N.C.), Chris Coons (D-Del.), and Cory Booker (D-N.J.) amid concerns that Special Coun­sel Mueller would be fired. The bill, which was voted favor­ably out of the Senate Judi­ciary Commit­tee,  foot­note123_pusus8z 123 Nich­olas Fandos, “In Warn­ing to Trump, Senat­ors Advance Bill to Protect Mueller,” New York Times, Apr. 26, 2018, https://www.nytimes.com/2018/04/26/us/polit­ics/senate-mueller-protec­tion-bill.html. The bill would not open the door for Congress to politi­cize invest­ig­a­tions by impos­ing real-time report­ing require­ments on the special coun­sel, as one contem­plated amend­ment to the bill while it was considered in commit­tee would have done. Mary Clare Jalonick, “As Trump Fumes, Senat­ors Bid to Protect the Special Coun­sel,” Asso­ci­ated Press, Apr. 11, 2018, https://www.apnews.com/9a5a0ba245814a9b8259c6290b698ff5 (report­ing that Senator Charles Grass­ley was prepar­ing an amend­ment requir­ing new reports to Congress if the scope of the special coun­sel’s invest­ig­a­tion changed and a final report on the invest­ig­a­tion with a detailed explan­a­tion of any charges).  would only allow the special coun­sel to be removed for cause, and it limits the removal power to the attor­ney general or the most senior Senate-confirmed Depart­ment of Justice offi­cial who is not recused from the matter. The bill also allows the special coun­sel to chal­lenge his or her removal in court, requir­ing that any such chal­lenge be considered on an exped­ited basis and that any appeals be direc­ted to the Supreme Court, and provides for the preser­va­tion of the special coun­sel’s mater­i­als in the event of dismissal. This legis­la­tion would not prevent a future pres­id­ent from publicly rail­ing against or even threat­en­ing those involved in a special coun­sel invest­ig­a­tion, but it would provide greater assur­ance that the pres­id­ent cannot unilat­er­ally end an invest­ig­a­tion.

Legis­la­tion to protect the special coun­sel from improper removal is within Congress’s consti­tu­tional author­ity, as evid­enced by similar exer­cises of its author­ity in the past that have been found to be consti­tu­tional.  foot­note124_tbgqzh0 124 Letter from Eric Posner, Professor of Law, Univer­sity of Chicago Law School, and Stephen I. Vladeck, Professor in Law, Univer­sity of Texas School of Law, to Senator Charles Grass­ley, Chair­man, and Senator Dianne Fein­stein, Rank­ing Member, Senate Judi­ciary Commit­tee (Apr. 24, 2018), avail­able at https://www.just­se­cur­ity.org/wp-content/uploads/2018/04/Posner-Vladeck-Letter-on-S2644.pdf.  Congress previ­ously estab­lished an inde­pend­ent coun­sel with juris­dic­tion to invest­ig­ate crim­inal miscon­duct by high-level exec­ut­ive branch person­nel whose prosec­u­tion by the admin­is­tra­tion might give rise to conflicts of interest. foot­note125_4pbbira 125 28 U.S.C. § 591 et seq.  Congress insu­lated the inde­pend­ent coun­sel from improper removal by super­i­ors.  foot­note126_cdax7i1 126 28 U.S.C. § 596 (requir­ing “good cause, phys­ical or mental disab­il­ity” for removal).  Congress has also enacted legis­la­tion protect­ing numer­ous other federal officers from arbit­rary removal.  foot­note127_1kst­c60 127 12 U.S.C. § 5491 (c)(3) (Consumer Finan­cial Protec­tion Bureau); 42 U.S.C. § 7412(r) (6)(B) (Chem­ical Safety and Hazard Invest­ig­a­tion Board); 42 U.S.C. § 1975(e) (Commis­sion on Civil Rights); 15 U.S.C. § 2053(a) (Consumer Product Safety Commis­sion); 42 U.S.C. § 7171 (b) (1) (Federal Energy Regu­lat­ory Commis­sion); 12 U.S.C. § 4512(b)(2) (Federal Hous­ing Finance Agency); 5 U.S.C. § 7104(b) (Federal Labor Rela­tions Author­ity); 46 U.S.C. § 301(b)(5) (Federal Mari­time Commis­sion); 12 U.S.C. § 242 (Federal Reserve); 15 U.S.C. § 41 (Federal Trade Commis­sion); 5 U.S.C. § 1202(d) (Merit Systems Protec­tion Board); 30 U.S.C. § 823(b) (1) (Mine Safety and Heath Review Commis­sion); 29 U.S.C. § 153(a) (National Labor Rela­tions Board); 45 U.S.C. § 154 (National Medi­ation Board); 49 U.S.C. § 1111(c) (National Trans­port­a­tion Safety Board); 42 U.S.C. § 5841(e) (Nuclear Regu­lat­ory Commis­sion); 29 U.S.C. § 661(b) (Occu­pa­tional Safety and Health Review Commis­sion); 5 U.S.C. § 1211(b) (Office of Special Coun­sel); 39 U.S.C. § 502(a) (Postal Regu­lat­ory Commis­sion); 42 U.S.C. § 902(a)(3) (Social Secur­ity Admin­is­tra­tion); 49 U.S.C. § 1301(b)(3) (Surface Trans­port­a­tion Board).

 

End Notes

IV. About the Task Force Members

 

Preet Bharara

Preet Bhar­ara, Co-Chair

Preet Bhar­ara is an Amer­ican lawyer who served as U.S. Attor­ney for the South­ern District of New York from 2009 to 2017. His office prosec­uted cases involving terror­ism, narcot­ics and arms traf­fick­ing, finan­cial and health-care fraud, cyber­crime, public corrup­tion, gang viol­ence, organ­ized crime, and civil rights viol­a­tions. In 2012, Bhar­ara was featured on Time’s “100 Most Influ­en­tial People in the World.” On April 1, 2017, Bhar­ara joined the NYU School of Law faculty as a Distin­guished Scholar in Resid­ence. He is Exec­ut­ive Vice Pres­id­ent at Some Spider Studios, where he hosts a CAFE podcast, Stay Tuned, focused on ques­tions of justice and fair­ness. He is also the author of a top-five New York Times best­selling book, Doing Justice: A Prosec­utor’s Thoughts on Crime, Punish­ment, and the Rule of Law.

Christine Todd Whitman

Christine Todd Whit­man, Co-Chair

Christine Todd Whit­man is Pres­id­ent of the Whit­man Strategy Group, a consult­ing firm special­iz­ing in envir­on­mental and energy issues. She served in the cabinet of Pres­id­ent George W. Bush as Admin­is­trator of the Envir­on­mental Protec­tion Agency from 2001 to 2003, and was Governor of New Jersey from 1994 to 2001. During her time in govern­ment, she gained bipar­tisan support and was widely praised for cham­pi­on­ing common-sense envir­on­mental improve­ments. Gov. Whit­man is involved in numer­ous national nonprofit organ­iz­a­tions focused on legal and envir­on­mental causes, includ­ing the Amer­ican Secur­ity Project and the O’Con­nor Judi­cial Selec­tion Advis­ory Commit­tee at the Insti­tute for the Advance­ment of the Amer­ican Legal System. She is a gradu­ate of Wheaton College in Norton, Massachu­setts.

Mike Castle

Mike Castle

Mike Castle is a former two-term governor, nine-term member of Congress, lieu­ten­ant governor, deputy attor­ney general, and state senator of his home state of Delaware. Recently retired from the law firm DLA Piper, Gov. Castle served on the Finan­cial Services, Intel­li­gence, and Educa­tion and Work­force Commit­tees during his tenure in the U.S. House of Repres­ent­at­ives, and also led a number of congres­sional caucuses. Since leav­ing office in Janu­ary 2011, he has been honored by the Delaware Cham­ber of Commerce and the Univer­sity of Delaware, and politi­cians of both parties have heral­ded Gov. Castle as a bipar­tisan leader. As a part­ner at DLA Piper, he worked on finan­cial issues, inter­na­tional trade, legis­lat­ive affairs, and health care. He is the Board Chair for Research!Amer­ica. He received his B.A. from Hamilton College and his J.D. from Geor­getown Univer­sity

Christopher Edley, Jr.

Chris­topher Edley, Jr.

Chris­topher Edley, Jr. is the Honor­able William H. Orrick, Jr. Distin­guished Professor of Law at UC Berke­ley School of Law, after serving as dean from 2004 through 2013. Before Berke­ley, he was a professor at Harvard Law School for 23 years and cofoun­ded the Harvard Civil Rights Project. Prof. Edley co-chaired the congres­sion­ally chartered National Commis­sion on Educa­tion Equity and Excel­lence from 2011 to 2013. He served in White House policy and budget posi­tions under Pres­id­ents Jimmy Carter and Bill Clin­ton, held senior posi­tions in five pres­id­en­tial campaigns, and worked on two pres­id­en­tial trans­itions. He is a fellow or member of the Amer­ican Academy of Arts & Sciences, the National Academy of Public Admin­is­tra­tion, the Coun­cil on Foreign Rela­tions, the Amer­ican Law Insti­tute, the advis­ory board of the Hamilton Project, the Brook­ings Insti­tu­tion, and the board of Inequal­ity Media. As a National Asso­ci­ate of the National Research Coun­cil, he recently chaired commit­tees to eval­u­ate National Assess­ment of Educa­tional Progress perform­ance stand­ards and design a national system of educa­tion equity indic­at­ors. Prof. Edley is a gradu­ate of Swarth­more College, Harvard Kennedy School, and Harvard Law School.

Chuck Hagel

Chuck Hagel

Chuck Hagel served as the 24th Secret­ary of Defense from 2013 to 2015. He is the only Viet­nam veteran and enlis­ted combat veteran to serve as Secret­ary of Defense. He repres­en­ted the state of Nebraska in the U.S. Senate from 1997 to 2009. In the Senate, Sec. Hagel was a senior member of the Foreign Rela­tions; Bank­ing, Hous­ing and Urban Affairs; and Intel­li­gence Commit­tees. Previ­ously, Sec. Hagel was Co-Chair­man of the Pres­id­ent’s Intel­li­gence Advis­ory Board, a Distin­guished Professor at Geor­getown Univer­sity, Chair­man of the Atlantic Coun­cil, Chair­man of the United States of Amer­ica Viet­nam War Commem­or­a­tion Advis­ory Commit­tee, Co-Chair­man of the Viet­nam Veter­ans Memorial Fund Corpor­ate Coun­cil, Pres­id­ent and CEO of the USO, and Deputy Admin­is­trator of the Veter­ans Admin­is­tra­tion. He currently serves on the RAND Board of Trust­ees, PBS Board, Corsair Capital Advis­ory Board, and Amer­ican Secur­ity Project Board, and is a Senior Advisor to Gallup. He is a gradu­ate of the Univer­sity of Nebraska at Omaha.

David Iglesias

David Iglesias

David Iglesias is Director of the Wheaton Center for Faith, Polit­ics and Econom­ics and is the Jean & E. Floyd Kvamme Asso­ci­ate Professor of Polit­ics and Law at Wheaton College. Previ­ously, Prof. Iglesias served as a prosec­utor focus­ing on national secur­ity and terror­ism cases. He was the U.S. Attor­ney for the District of New Mexico from 2001 to 2007. Prof. Iglesias was recalled to active duty status between 2008 and 2014 in support of Oper­a­tion Endur­ing Free­dom. He served as a team leader, senior prosec­utor, and spokes­man with the U.S. Milit­ary Commis­sions, hand­ling war crimes and terror­ism cases. He retired from the U.S. Navy as a Captain. Prof. Iglesias received his bach­el­or’s degree from Wheaton College and his J.D. from the Univer­sity of New Mexico School of Law.

Amy Comstock Rick

Amy Comstock Rick

Amy Comstock Rick is the Pres­id­ent and CEO of the Food and Drug Law Insti­tute, and was previ­ously the CEO of the Parkin­son’s Action Network. Prior to becom­ing a nonprofit and health leader, Ms. Rick served as the Director of the U.S. Office of Govern­ment Ethics (2000–2003) and as an Asso­ci­ate Coun­sel to the Pres­id­ent in the White House Coun­sel’s Office (1998–2000). She also served as a career attor­ney at the U.S. Depart­ment of Educa­tion, includ­ing as the Depart­ment’s Assist­ant General Coun­sel for Ethics. Ms. Rick has also served as Pres­id­ent of the Coali­tion for the Advance­ment of Medical Research, and as a board member of Research!Amer­ica, the National Health Coun­cil, and the Amer­ican Brain Coali­tion. She received her bach­el­or’s degree from Bard College and J.D. from the Univer­sity of Michigan.

Donald B. Verrilli, Jr.

Donald B. Verrilli, Jr.

Donald B. Verrilli, Jr. is a part­ner at Munger, Tolles & Olson LLP, and the founder of its Wash­ing­ton, D.C., office. He served as Soli­citor General of the United States from June 2011 to June 2016. During that time, he was respons­ible for repres­ent­ing the U.S. govern­ment in all appel­late matters before the Supreme Court and in the courts of appeals, and was a legal adviser to Pres­id­ent Barack Obama and the Attor­ney General. Earlier, he served as Deputy White House Coun­sel and as Asso­ci­ate Deputy Attor­ney General in the U.S. Depart­ment of Justice. He clerked for U.S. Supreme Court Justice William J. Bren­nan, Jr., and the Honor­able J. Skelly Wright on the U.S. Court of Appeals for the D.C. Circuit. He received his B.A. from Yale Univer­sity and J.D. from Columbia Law School.

Prin­cipal Task Force Staff

Rudy Mehrb­ani, Spitzer Fellow & Senior Coun­sel, Bren­nan Center

Wendy Weiser, Director, Demo­cracy Program, Bren­nan Center

Daniel Weiner, Senior Coun­sel, Bren­nan Center

Martha Kinsella, Coun­sel, Bren­nan Center

Natalie Giotta, Research & Program Asso­ci­ate, Bren­nan Center

V. Acknowledgments

 

The Bren­nan Center grate­fully acknow­ledges the Carne­gie Corpor­a­tion of New York, Change Happens Found­a­tion, Demo­cracy Alli­ance Part­ners, The William and Flora Hewlett Found­a­tion, The JPB Found­a­tion, The Kohl­berg Found­a­tion, Craig Newmark, founder of craigslist and Craig Newmark Phil­an­throp­ies, Open Soci­ety Found­a­tions, Rock­e­feller Family Fund, and the Bern­ard and Anne Spitzer Char­it­able Trust for their gener­ous support of this work.

The Task Force members and its staff would like to thank Michael Wald­man, John Kowal, Alicia Bannon, Douglas Keith, Wilfred Codring­ton, Zachary Roth, Sidni Fred­er­ick, and Yuliya Bas of the Bren­nan Center, and Andrew Wright of Just Secur­ity for their invalu­able contri­bu­tions to this report.

 

About the Bren­nan Center for Justice 

The Bren­nan Center for Justice at NYU School of Law is a nonpar­tisan law and policy insti­tute that seeks to improve our systems of demo­cracy and justice. We work to hold our polit­ical insti­tu­tions and laws account­able to the twin Amer­ican ideals of demo­cracy and equal justice for all. The Center’s work ranges from voting rights to campaign finance reform, from ending mass incar­cer­a­tion to preserving Consti­tu­tional protec­tion in the fight against terror­ism. Part think tank, part advocacy group, part cutting-edge commu­nic­a­tions hub, we start with rigor­ous research. We craft innov­at­ive policies. And we fight for them — in Congress and the states, the courts, and in the court of public opin­ion. 

VI. Appendix: Ethics and Disclosure Requirements

Ethics and Disclosure Requirements