Take Care is pleased to present a series of posts offering thoughts on how Congress might address key issues in ethics and anti-corruption reform.
By Soren Dayton | Protect Democracy
President Trump is challenging our institutions with new and different threats. Congress has not begun the process of holistically responding to this challenge. HR 1 is an important start, and it is incredibly encouraging that the next Congress will focus on ways to strengthen our democracy. However, some of the threats to our democracy that have emerged most acutely under the Trump administration are not addressed by HR 1. These questions should be examined carefully in the 116th Congress as part of a broader, more forward-looking oversight and legislative agenda.
In July, Protect Democracy published a Roadmap for Renewal to lay the groundwork for responding to these new threats. While we focused more broadly (and included many proposals that are in the outlines of H.R. 1), two stand out as unaddressed by current legislative efforts, but very much in line with H.R. 1’s emphasis on conflicts of interest:
Both of these are examples of how the President has used the levers of government to protect himself, just like people with financial conflicts of interest use the levers of government to enrich oneself. And in both cases Protect Democracy is pursuing litigation that challenges actions of President Trump. However, Congressional action could more systematically prevent violations and send a strong political message to the President.
The first, direct political interference in specific party matters in law enforcement, is a situation in which the President directs a law enforcement action at a perceived critic or political opponent. President Nixon did this with the IRS. President Trump may have done this with antitrust action to stop the merger of Time Warner and AT&T after repeated attacks on CNN, part of Time Warner. President Trump has also famously attacked CNN repeatedly for its coverage.
At trial, AT&T asked Judge Leon to allow discovery on the question of whether DOJ’s lawsuit was driven by political direction. Protect Democracy filed an amicus brief on behalf of Preet Bharara, John Dean, and others, explaining why political interference of this sort raises serious constitutional issues (but taking no position on the underlying merits of the case). Protect Democracy, is also representing PEN America. In that case, we asked a federal court for a declaratory judgment preventing the President from using the levers of government to retaliate against media outlets for their coverage.
Congress should step in here. It should prohibit contacts between the White House and DOJ on specific party matters, like they did in the Tax Reform Act of 1978 to criminalize contacts with the IRS. It should ensure that contact logs are maintained between DOJ and the White House and clarify that those logs are available in discovery. At a minimum, Congress should ensure that contacts between the White House and Justice Department are limited to a small set of people and conditions. More details on our legislative proposal are available on our website here.
Second, we’ve seen how the President could use the pardon power to interfere in investigations. We see on Twitter, where the President tells Paul Manafort to stand strong, suggesting that a pardon is in the cards. The President claims he could also protect someone from even being questioned as part of an investigation. If Donald Trump Jr. were to refuse to comply with a subpoena, it is likely that the process could ultimately result in a criminal contempt of court. At that point, the President could pardon him, just like he pardoned Maricopa County Sherriff Joe Arpaio early in his term, which Protect Democracy is currently challenging. (In a third scenario, DOJ could simply refuse to help enforce a subpoena, as happened in the Obama administration.)
Congress could take action to deter this type of pardon and accelerate the political backlash against pardons used to undermine investigations and the rule of law. For example, Rep. Adam Schiff, Sen. Cortez Masto, and others, introduced legislation last year, the Abuse of the Pardon Prevention Act of 2018, to automate disclosure of any documents in the underlying investigation to Congress when the President issues a pardon of a President or family member of a President. In addition, it should also require that a private attorney is automatically appointed to pursue any investigation that DOJ abdicates or the President prevents through a self-protective pardon. More details on our proposal are available on our website here.
These are just two places that Congress could take action to protect our democracy from the new threats. There are more in our Roadmap, including areas that H.R. 1 touches upon and many other issue areas as well.
H.R. 1 takes important first steps in elevating concerns about democracy, but it must be the beginning, not the end of the discussion. According to Freedom House, American democracy has been in decline for almost a decade due to a number of factors, and globally even longer. Some of those declines may be due to institutional weaknesses. Some may be due to the particular actions of President Trump or even Presidents Obama or Bush or others before them. And others may be due to changes in our economics, technology, etc. Ultimately, to protect our democracy, we are going to need to need a new era of creative legislating and, indeed, make American democracy great again.