Since the 1970s, there has been a bipartisan consensus that Presidents, Attorneys General, and other Executive Branch actors would follow basic norms related to White House-Justice Department relations and the integrity of law enforcement. Because the Constitution gives the President supervisory control over law enforcement, a reform program to check abuses related to the rule of law depends for its full measure of effectiveness on Executive Branch self-regulation, but key avenues of legislative reform are also available.
Obstruction of Justice
Challenge: The federal obstruction of justice statute does not explicitly extend to the President, and therefore can be interpreted as not applying to the President at all.
Reform: Congress should expressly bar the President from obstructing justice for self-protection, protection of family members, or election interference.
The Pardon Power
Challenge: The Constitution clearly vests this power in the Presidency, but the pardon power is vulnerable to political abuse and misuse.
Reform: Congress should establish criminal liability for a President who seeks to obstruct justice or accept a bribe through the offer or exercise of the pardon power. This would include clarifying that the current anti-bribery statute prohibiting a public official from seeking or accepting a bribe “in return for being influenced in the performance of an official act” explicitly includes a pardon as an “official act.” Congress should similarly prohibit self-pardons and specify that such a pardon cannot be the basis for immunity from federal criminal investigation or prosecution.
Politicized Law Enforcement
Challenge: Justice Department rules against political bias in law enforcement have proven insufficient to protect against frequent allegations of partisan motives, and in some cases against the actual or apparent politicization of law enforcement.
Reform: All federal employees—not just Justice Department or White House officials—are prohibited from using positions of authority to “coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise, to himself…or persons with whom the employee is affiliated in a nongovernmental capacity.” The regulation is structured to apply broadly. A reform program should include Justice Department clarification of these regulations to strengthen the norms against political bias in law enforcement.
Challenge: Justice Department rules lack guidance on the manner of investigating political candidates and campaigns.
Reform: The Justice Department should clarify the rules that govern investigations of Presidents and Presidential campaigns to establish clear accountability for decisions to open such investigations, and to protect against the political impact of investigative steps or announcements. The Department should adopt a “60-day rule” in which investigations are not publicly disclosed within 60 days of a primary or general election.
Challenge: Current Department of Justice rules concerning the appointment and operation of a special counsel lack clarity on key issues of accountability and are insufficient to secure public confidence.
Reform: The Justice Department should reform the Special Counsel regulations so that a Special Counsel can operate with enhanced independence from the Attorney General, and report to Congress and the public the facts of any credible allegations of criminal conduct against a President or other senior Executive Branch official. Additional transparency requirements would provide Congress with the means of identifying any potential political interference with the Special Counsel’s investigative mandate.