Trump's Acts Show the Urgent Need to Curb the Imperial Presidency
Trump’s Acts Show the Urgent Need to Curb the Imperial Presidency
The end of the Mueller investigation reveals that post-Watergate guardrails set up against executive overreach have been smashed and need replacing.
By Ian Bassin and Justin Florence
Mr. Bassin and Mr. Florence served as associate White House counsels.
In the post-Watergate era, most Americans have taken for granted that a president would not fire an F.B.I. director investigating him, or replace an attorney general for insufficient loyalty to the president’s personal interests. Dangling a pardon before potential witnesses to influence their testimony? Unheard of.Whatever one’s feelings about the end of the Mueller investigation, the Barr letter makes one thing clear: The guardrails that were established after Watergate against these types of abuses have been smashed. We still need to see the full Mueller report, but unless corrective steps are taken, Mr. Trump and Mr. Barr will have changed, perhaps profoundly, the shape of presidential power, and in troubling ways. It’s therefore up to Congress and the 2020 presidential candidates to step in and harden the policies that for 40 years prevented improper political interference in law enforcement. They can do this by enacting comprehensive legislation to codify rules and practices that were previously voluntary. Those who subscribe to the Barr memo view of expansive executive power might claim that such legislation would violate the Constitution. On the contrary, such legislation would help enforce it.
First, Congress should restrict when and how the White House intervenes in law enforcement actions, giving teeth to the norms of the post-Watergate era. One model for such legislation is a reform born out of President Richard Nixon’s abuse of the I.R.S. to target enemies. Congress made it unlawful for certain officials, including the president, to “request, directly or indirectly,” any I.R.S. officer or employee to, in effect, weaponize a taxpayer audit. Congress could apply that approach by prohibiting a president from intervening in individual law enforcement proceedings — or at a minimum require notification when a president or members of the White House staff do so. Such a rule would have imposed an additional bar, for example, on the president trying to get the Department of Justice to block the AT&T-Time Warner merger in retaliation for CNN’s coverage, or from trying to investigate or prosecute political opponents.
Second, Congress should ensure that if the president issues or even dangles pardons in an attempt to block an investigation into his own interests, legislators will receive documents regarding the underlying investigation (once it’s concluded). This will both ensure accountability and deter bad faith behavior. Representative Adam Schiff’s Pardon Abuse Prevention Act provides a good start; it could be supplemented to apply to so-called dangled pardons and to force disclosure of discussions with pardon seekers in investigations implicating the president.
Third, Congress can make it harder for the government to mislead the public. A little-known law called the Information Quality Act creates a requirement that federal agencies ensure the quality, objectivity, utility and integrity of information they provide to the American people. Strengthening the act so that it applies to the president would help expose disinformation and make it more difficult for presidents to take executive actions based on false “determinations” and “findings.”
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https://www.nytimes.com/2019/04/01/opinion/trump-mueller-barr-letter.html?action=click&module=Opinion&pgtype=Homepage
