No one is above the law. Our justice system must serve the vulnerable and marginalized in our society rather than merely the politically powerful.
- The Problem
- Recommendations for Short-term Action (First 100 Days)
- Recommendations for Legislative Action
Although the justice system has always worked to the benefit of the powerful while being unfairly applied to the politically vulnerable, the Trump administration exploited the system by weaponizing the Department of Justice as a personal political tool. The DOJ, in turn, has placed loyalty to the president over fidelity to the law. The Department of Justice must be left to independently handle law enforcement matters, without being weaponized against political opponents or steered away from investigations into political allies. The DOJ must defer to expert civil servant advice on matters such as security clearances, sentencing recommendations, and federal contracting,
Recommendations for Short-term Action (First 100 Days)
The president should prioritize the institutionalization and protection of dissent across government. Each agency should at minimum create a “dissent channel” —modeled after the Dissent Channel at the Department of State and the Direct Channel at the United States Agency for International Development—that allows civil servants and federal contractors to voice objections to policies, corruption, or inappropriate interference by political appointees, and clarify that any civil servant or contractor that appropriately utilizes the channel for those purposes will be protected from retaliation under applicable whistleblower protection laws.
- Establish an Oath of Office training for all civil servants and political appointees.
Deploy a government-wide training program for federal employees on their oath of office, their duty to serve the public interest—not the president’s—and the responsibilities, avenues, and protections available to them to report wrongdoing.
Independent of the White House, the attorney general should direct a department-wide review of any instances of politicization of law enforcement activities, including investigations, charging or sentencing decisions, and where it is determined that such politicization occurred. The Department of Justice should ensure that career law enforcement are able to pursue those cases and investigations without any political interference whatsoever.
- Promulgate and publicly publish new White House-law enforcement contact policies to prevent political interference in criminal law enforcement.
The White House should immediately establish clear policies governing contact with federal law enforcement agencies, including, at minimum: the disclosure to Congress of all contacts between White House officials and agencies regarding specific-party enforcement matters, and an express ban on White House officials directing agency decisions on individual investigations and prosecutions. Additionally, the White House should require all executive agencies with a law enforcement role to promulgate equivalent public policies governing contacts with the White House on specific-party matters.
- Repair and strengthen the security clearance process.
The president should issue an executive order to strengthen the objectivity of processes used to determine access to classified information. At minimum, security clearance holders should be protected from discrimination or retaliation for First Amendment activity and have clear access to recourse, such as through an independent appeal process, in the event that a clearance is denied. The executive order should also limit the length of time that White House officials may operate with interim clearances.
- Commit to good faith pardons.
The president should commit to (1) ensuring transparency of the pardon process, and (2) using pardons for mercy and justice and never for personal protection or political favor.
- Provide available records to Congress regarding pardons and commit to transparent pardon processes.
Available records of both actual and dangled pardons should be provided to Congress. Transparency of the pardon process will serve the public interest function of evaluating whether pardon powers have been used for corrupt or unlawful purposes, as well as aid in reestablishing norms governing the judicious and circumspect use of presidential pardons as an instrument of justice and mercy in a fallible legal system.
Recommendations for Legislative Action
- Empower agency inspectors general to investigate improper interference in law enforcement matters.
The president should support an expansion of the jurisdiction of agency inspectors general to expressly include investigations into improper interference in law enforcement functions. A statutory expansion should specifically ensure that oversight into any professional misconduct of prosecutors—including the U.S. attorney general—is not outside the jurisdiction of the Department of Justice’s Office of Inspector General, and does not exclusively reside within the purview of the Department of Justice’s Office of Professional Responsibility.
- Protect the integrity of the security clearance process.
The president should endorse legislative efforts to strengthen the objectivity of processes used to determine access to classified information. Specific provisions for legislation to protect security clearance reviews are included in Appendix 3.1.
- Require policies to prevent inappropriate political influence in specific-party matters at law enforcement agencies.
In order to prevent improper political interference in law enforcement matters, model legislation should:
- Bar the president or other White House staff from ordering agencies to begin, continue, or end an investigation or prosecution, or otherwise influence agency decisions with respect to a specific matter. This prohibition would carry criminal penalties, though would in no way bar the president from setting generally-applicable policies or making appropriate judgments in cases implicating national security and foreign policy.
- Require the White House and law enforcement agencies to log all communications pertaining to specific cases or investigations that an agency might undertake or is undertaking; and direct an agency’s Office of the Inspector General to review the logs and to notify Congress if any are inappropriate from a law enforcement perspective or raise concerns about interference.
- Require the White House to issue and publish policies identifying which White House officials are authorized to communicate with law enforcement agencies about individual law enforcement matters. Law enforcement agencies should be required to promulgate equivalent policies identifying officials who may speak with the White House about such matters.
- Reaffirm that criminal laws apply to the president.
The president should endorse new legislation that the president, like every American, is subject to the rule of law. Congress should clarify and affirm that criminal laws apply to the president just as they apply to any person within the jurisdiction of the United States, even when a president is purporting to act in his or her official capacity. Additionally, legislation should clarify that a president’s term of office does not count toward a statute of limitations for criminal charges against the president. This tolling of statutes of limitations would apply prospectively, consistent with the Ex Post Facto Clause, to (1) offenses committed before or during the president’s term of office, and (2) any statute of limitations that has not yet expired at the time of the legislation’s passage.
- Require disclosure of underlying investigatory materials to Congress for pardons in select circumstances.
In accordance with the president’s commitment to a constitutional and transparent use of the pardon power, he should support legislation that requires the attorney general and the White House Counsel’s Office to share underlying investigative materials and materials regarding the consideration of a pardon in three types of situations: when the president grants or offers to grant an individual a pardon for an offense against the U.S. that arises from (1) a charge of criminal contempt of court for violating others’ constitutional rights in defiance of a court order to stop; (2) a charge of willfully making false statements to Congress in order to mislead or sabotage a congressional investigation, or (3) an investigation in which the president, or a relative of the president, is a target, subject, or witness.
- Permit statutory damage suits against federal officials who violate an individual’s constitutional rights.
The president should support the enactment of a general statute providing for damages suits against federal officials who act unlawfully to violate an individual’s constitutional rights—as exists for state and local officials. The absence of such a statute ensures that federal officials enjoy broad immunity even when acting unconstitutionally. Congress should provide for damages suits against federal officials, including the president and other White House staff, where plaintiffs can demonstrate a reasonable basis to believe that their constitutional rights have been violated by an individual acting under color of federal law.
Appendix 3.1: Security Clearance Reviews The president should support legislation to improve the objectivity of criteria applied in security clearance reviews. Model legislation would:
- Impose guardrails to prevent discrimination or retaliation for First Amendment protected activity;
- Ensure that there is a clear, fair, and efficient independent appeal process available for people who have been denied security clearances;
- Limit the length of time that White House officials may operate with interim clearances;
- Require notifications to the congressional intelligence committees and an independent appeals board any time the White House overrules a security clearance determination by career professionals; and
- Require that the director of the White House personnel security office be a career professional with specific expertise in the security clearance process.