In-Depth: Sen. Sheldon Whitehouse (D-RI), a former U.S. Attorney, introduced this bill to increase transparency in the relationship between the U.S. Department of Justice and the White House and prevent political interference in law enforcement decisions by imposing reporting requirements for contacts pertaining to specific cases or investigations between the Dept. of Justice (DOJ) and White House:
“Politics has no place in the Department of Justice’s enforcement of the law. Never before have we seen a president so heedless of the Department’s traditions and spirit, and so singularly focused on his own political and personal self-interest at the expense of justice. This bill would protect the Department against the likes of Donald Trump by shining a much-needed light on the channels that have enabled political influence to flow into the Department.”
Original cosponsor Sen. Kamala Harris (D-CA), one of the contenders for the 2020 Democratic presidential nomination, says:
“The administration of justice should be blind, not driven by politics. But the President’s attempts to derail the Mueller investigation, paired with Attorney General Barr’s refusal to give clear answers to Congress, have raised serious concerns about DOJ’s independence. The honor system isn’t enough anymore – we need a law. I’m proud to work with Senators Whitehouse and Blumenthal to create transparency and give Congress important oversight tools to help restore the American people’s trust in the Department of Justice.”
Rep. Hakeem Jeffries (D-NY), sponsor of this bill’s House companion, adds:
“Justice Brandeis famously observed that sunlight is the best disinfectant. His words have been proven true time and time again. This bill would increase transparency surrounding communication between the White House and Department of Justice. It is a critical piece of our commitment to fulfill our constitutional duty as a check and balance on the executive branch.”
A bipartisan coalition, including the Brennan Center and Republicans for the Rule of Law, wrote a coalition letter supporting this bill and raising the possibility of extending its disclosure requirement to more law enforcement agencies:
“The Department of Justice’s stated mission is to ‘ensure fair and impartial administration of justice for all Americans.’ This essential function, which goes to the heart of public trust in the federal government, can be satisfied only when the Department operates free of political interference. To help ensure that the nation’s chief law enforcement agency conducts its work transparently and without bias, we… [support the] Security from Political Interference in Justice Act of 2019. Presidents of both parties have been criticized strongly for violating the norm of DOJ independence in the post-Nixon era — such as when President Clinton improperly called for the death penalty for the Oklahoma City bombers. But this criticism has not stopped Presidents from inappropriately pressuring the agency. Congress should use its authority as a coequal branch of government to help stop such behavior in the future. If anything, the Senate should consider doing even more to check presidential abuse by extending the bill’s disclosure requirement to more law enforcement agencies, such as the Secret Service, and independent agencies such as the Securities and Exchange Commission, the Federal Election Commission, and the Federal Trade Commission. We encourage Senators to consider the possibility of including these agencies in the legislation.”
In a December 2017 New York Times interview, President Trump claimed that as president, he has the ultimate authority to direct to the DOJ as he sees fit. He said, “I have absolute right to do what I want to do with the Justice Department. But for purposes of hopefully thinking I’m going to be treated fairly, I’ve stayed uninvolved with this particular matter.” Some of the president’s layers, along with some scholars, contend that the chief executive’s control over all prosecutorial decisions is absolute (and therefore, the president also can’t be guilty of obstruction).
This bill has two Democratic cosponsors and the support of the Brennan Center, Common Cause Citizens for Responsibility and Ethics in Washington, Niskanen Center, Project on Government Oversight, Protect Democracy, Public Citizen, Republicans for the Rule of Law, Stand Up Republic and Tech Freedom. Its House companion, sponsored by Rep. Hakeem Jeffries (D-NY), has three Democratic cosponsors. Neither bill had seen committee action as of July 1, 2019.
Protect Democracy, a nonpartisan nonprofit dedicated to preventing American democracy from declining into a more authoritarian form of government, notes that the Senate Judiciary Committee considered nearly identical legislation (the Security from Political Interference in Justice Act of 2007, also sponsored by Sen. Whitehouse) in 2007 and reported it to the Senate on a bipartisan 14-2 vote.
Of Note: Sen. Harris’ office notes, “Although both the Department and the White House have long maintained policies that define and prohibit... inappropriate contacts, these policies lack the force of law and can be violated without remedy.” Thus, presidential administrations have violated this norm without consequence.
Presidents from both parties have been criticized for violating the norm of DOJ independence. Such cases include: President Nixon publicly declaring that Charles Manson should get the death penalty; President Clinton calling for the Oklahoma City bombers to face the death penalty in the investigaton’s early days; President Trump pressuring the DOJ to block the AT&T-Time Warner merger because of his dislike for Time Warner-owned CNN; and Trump’s repeated attempts to obstruct the DOJ’s investigation of contacts between his 2016 presidential campaign and the Kremlin.
Summary by Lorelei Yang(Photo Credit: iStockphoto.com / DNY59)