Six Post-Trump Reforms to Help Protect the Rule of Law

By Bob Bauer and Jack Goldsmith, The Washington Post

16 October 20

resident Trump’s four-year effort to manipulate the Justice Department to protect himself and serve his political ends has suffered some spectacular failures. The department’s investigation into possible wrongdoing related to “unmasking” has ended without incident. Trump’s frequent demands that the department indict people he considers political enemies appear unlikely to be satisfied. Trump tried to fire special counsel Robert S. Mueller III and squelch publication of Mueller’s report, but executive-branch subordinates would not cooperate.

Norms and laws worked much better in these instances than many feared they might. But Trump’s incessant norm-breaking and possible lawbreaking still damaged the appearance and reality of even-handed justice. The White House and Justice Department notably failed on several occasions to adhere to relevant norms of independence. Some deviations were significant. And a future president could follow Trump’s playbook with much greater competence.

When Trump leaves office, the damage he caused must be fixed and the possibility of future abuse urgently checked. At least six problems require attention.

1. The next administration will immediately face the fraught question of whether and how to investigate and, if warranted, prosecute possible crimes Trump committed while in office. If such an investigation of an ex-president occurs, it should take place pursuant to a transparent process supervised by the attorney general. The investigation and prosecution should be conducted by a special counsel. A former president seeking clemency should have to apply for it, and the application should not be considered until any charges have been filed. The process should include analysis by the attorney general and consultation with Congress.

2. One challenge in investigating possible presidential crimes is that it is unclear how current statutes on obstruction of justice apply to the president. As special counsel, Mueller concluded that the laws applied but noted uncertainties in application. Attorney General William P. Barr has been more skeptical but has acknowledged that a president may not, for example, alter evidence or try to persuade a witness to give false testimony. To put the strongest possible check on future presidents engaging in Trump-type machinations, Congress should amend these laws to expressly cover presidential behavior that pertains to corrupt interference in the administration of law for self-protection, protection of family or to affect an election.

3. Congress should reform the pardon power that Trump has abused (and threatens to abuse further). The Constitution confers the pardon power on the president but does not immunize this power from all regulation. Congress should amend the bribery statute to make it an independent crime for the president to bestow a pardon to try to influence testimony in an investigation. (Some have expressed concern that such a deal may have informed Trump’s commutation of Roger Stone’s sentence.) Congress should also ban presidential self-pardons, which Trump has suggested he might invoke. Such a ban would not resolve the constitutionality of self-pardons but could influence subsequent judicial analysis.

4. The special counsel regulations that governed Mueller’s investigation need reform. A special counsel is a quasi-independent investigator who examines possible wrongdoing by senior executive-branch officials. Mueller’s investigation revealed numerous problems in current regulations, including the limits on the special counsel’s authority to collect and provide Congress and the public with facts about alleged wrongdoing by a president. The regulations should acknowledge this role expressly and protect it by ensuring that special counsels can report these facts publicly even if they are fired or if the attorney general rejects their prosecution recommendation. Congress should also specify that a special counsel can be fired only for cause.

5. The Justice Department needs to amend its internal rules and guidelines to clarify that obstruction-of-justice statutes apply to improperly partisan law enforcement actions by department officials and that any such actions that fall short of obstruction of justice nonetheless violate department norms.

6. The Justice Department should reform its rules on investigations such as the one Connecticut U.S. Attorney John Durham is conducting into the investigation of the Trump 2016 campaign’s possible contacts with Russia. Such look-backs can serve legitimate purposes, but they should be conducted by the inspector general, who is more independent, rather than by a criminal prosecutor. Any criminal wrongdoing uncovered should be pursued by a special counsel rather than a prosecutor, who is more directly under the attorney general’s thumb. In addition, department regulations should specify that the attorney general is prohibited from publicly pre-judging ongoing investigations against uncharged individuals — a norm that Barr has often defied.

None of these reforms can stop a determined president from publicly commenting on ongoing investigations in ways that debase the rule of law. But as a package, these reforms could deter a president and attorney general from trying to obstruct the law enforcement process in self-serving ways. They could also reinforce the appearance of even-handed, nonpartisan law enforcement, even when the president is a determined, serial norm-breaker.

Republicans Are Trying to Make Court Expansion a Mortal Sin. Don't Let Them.

By Eugene Robinson, The Washington Post

16 October 20

s Amy Coney Barrett's confirmation hearings begin and the 2020 presidential election enters its final stretches, Republicans are accusing Democrats of wanting to manipulate the size of the Supreme Court to achieve political ends. Let's be clear about one thing, though: It is Republicans who have tried to warp the court's dimensions in recent years. And they're doing it again right now.

Whether Democrats would consider returning the favor at some point in the future is entirely hypothetical and depends on a host of unknowable variables. Joe Biden and Kamala D. Harris are right not to be baited into answering a question — "Will you or won't you?" — that presently has no meaning.

Ask them again if and when Biden is president and Democrats control both houses of Congress. Then, and only then, will Biden's view on expanding the number of Supreme Court justices be meaningful — because then, and only then, will court-packing be an actual possibility.

But there is more than one way to skew — or unskew — the ideology of the high court by manipulating the number of sitting justices.

You could do it by effectively reducing the number of seats on the court to eight, keeping one seat vacant for more than a year and refusing to give an eminently qualified nominee even a committee hearing — as Republicans did with Barack Obama's nominee Merrick Garland in 2016. Or you could rush someone through a hasty confirmation process at a time when voters are already casting ballots in an election that your party, according to polls, is likely to lose — as Republicans are doing with President Trump's nominee this week.

If one party did such outrageous things, cementing a conservative majority on the court for a generation, the other party, assuming it had the requisite power, might theoretically believe it is justified to add seats to the court to restore its ideological balance.

The Constitution, which does not specify the number of seats on the court, allows all of the above. Republicans have tried to paint "court-packing" as an unthinkable horror, an unprecedented departure from norms and traditions. Having transformed itself from the Party of Lincoln into the Party of Trump, however, the GOP has no standing to lecture anyone about norms and traditions. And the fact is that a decision by Democrats to expand the court would be nothing more than a variation on the "court-warping" that Republicans would achieve with Barrett's confirmation.

If Democrats were to win the White House and Senate and keep control of the House, they would have options for how to respond to the long Republican campaign to capture the courts and the shenanigans they've used to pursue it. Expanding the size of the Supreme Court wouldn't be their only option.

Democrats could and should enshrine rights the high court might no longer recognize — among them women's reproductive freedom, same-sex marriage and unobstructed access to the ballot box — in legislation. That would almost surely require eliminating the legislative filibuster in the Senate, which would occasion more GOP howling about, yes, norms and traditions. But the Senate under Majority Leader Mitch McConnell (R-Ky.) has become little more than a smaller, less efficient version of the House: a chamber in which the majority steamrolls the minority as a matter of course. Why should Democrats pretend ­otherwise?

It will still be a problem, however, for the highest court in the land to be seriously out of step — perhaps for decades — with the nation whose laws it interprets. Conservatives used to denounce "judicial activism" when they saw it being practiced by liberal justices. They now embrace such activism by justices who share their conservative ideology and who try to pull the country back into the past.

The Supreme Court presently takes a view on Second Amendment rights that not long ago would have been considered extreme or even loopy — and that thwarts the will of a majority of Americans for meaningful gun control. The court takes a radical position on the role money can play in politics by limiting what Congress can do to level the field. Of course, we should want justices who will follow the Constitution, not the opinion polls. It makes sense to have both conservative and liberal justices on the court, reflecting the ideological divide in the nation. It does not make sense, though, to have a durable majority tilting the scales of justice in one direction only.

I could argue against the notion of adding seats to the court — the GOP could make a tit-for-tat response when it gets the chance — and I have no idea what Biden thinks. But there is no reason for the Democratic Party to engage in unilateral disarmament — and no reason to answer hypotheticals. Let's have the election first.