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: For all the partisan rancor over “weaponization” of certain federal agencies, there are actual vulnerabilities to address in federal law enforcement. 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: Per the Code of Federal Regulations, 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 amendment of these regulations to clarify that they also protect against political bias in law enforcement.
Challenge: Justice Department rules lack guidance on how, when, and whether investigations can be opened into political candidates and campaigns. As a result, this power is ripe for abuse, especially during political 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. And to avoid politically motivated “October surprises,” the Department should adopt a “60-day rule” in which investigations are not publicly disclosed within two months 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 while clarifying that: 1) the ultimate responsibility for prosecution and declination decisions rests with the attorney general, and 2) the Special Counsel is clearly authorized to report to Congress and the public the facts uncovered in the course of investigating 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.