by Neal Katyal
Reform #2: Tax Returns
This one is simple. All presidents and presidential candidates should have to release their tax returns well in advance of an election, because the public has a right to know whether their commander in chief is in debt to a foreign power.
Congress should pass a law requiring it.
Reform #3: The Special Counsel Regulations
Special Counsel Mueller’s investigation is only indirectly related to the Ukraine inquiry, and as I explain in Chapters 3 and 4, I do not believe Congress should focus its case on Mueller’s findings. Even if Trump and his campaign had no dealings with Russia in 2016, I would absolutely still advocate for President Trump being removed from office, solely on the basis of his conduct as president with respect to Ukraine.
That said, Mueller’s investigation looms large over these impeachment proceedings, because some Americans have been led by Trump to believe that Mueller conducted a witch hunt, and as a result, they are disinclined to believe the findings of any investigation into the president’s conduct. A large part of the skepticism borne in the wake of Mueller’s report can be traced to the highly misleading and inaccurate summary of the report provided by Attorney General Barr, who didn’t let the public see the full report for many weeks.
Shockingly, Barr’s summary omitted Mueller’s most important point: that his decision on whether to charge or exonerate President Trump for his 10 instances of obstruction of justice rested not on whether President Trump actually did in fact obstruct justice but on the DOJ memos arguing that a sitting president cannot be criminally indicted. In other words, Mueller didn’t intend to clear President Trump of all wrongdoing. He simply meant to leave the decision of whether to charge him up to Congress—a point Attorney General Barr never communicated to the American people.
Part of the blame here, of course, rests with Mueller. By failing to speak up when Attorney General Barr distorted the findings of his report, he prevented the American people from learning that Barr’s summary was misleading until public opinion had already been formed and skepticism about investigations into the president (like the Ukraine probe) had already been solidified. And while Special Counsel Mueller did express concerns to the attorney general in private, the public didn’t find out about it until it was too late.
That’s why we need to rewrite the special counsel regulations, so what happened with Mueller’s report can never happen again.
In 1998 and 1999, as a young Justice Department lawyer during the Ken Starr investigations, I had the privilege of drafting the regulations that replaced the Independent Counsel Act (which gave Ken Starr his power) and have been used to govern the special counsel investigations that have taken place since—including the Mueller investigation. By and large, I believe these regulations have been effective, insofar as they’ve put in place a clear procedure by which the executive branch can conduct an unbiased investigation into the president of the United States (or another high-ranking public official). They’ve provided accountability and transparency into what would otherwise be closed and buried investigations; and the regulations are the reason the DOJ was forced to share the results of the Mueller investigation with Congress, including with the minority party. The Mueller probe wasn’t toothless because of the special counsel regulations, but because of the DOJ opinions that prevented the Department of Justice from indicting a sitting president.
In a few pages I’ll explain why I believe these DOJ opinions need to be reviewed—and partially reversed. But there are other steps we can take to build even more transparency into special counsel investigations.
The central challenge we face is ensuring that the public has access to the findings of the special counsel’s report without its first being filtered by a presidential appointee like the attorney general of the United States. This is one of the oldest questions in government and can be traced back at least to the Roman poet and satirist Juvenal: Quis custodiet ipsos custodes? Who will guard the guards?
How, in other words, can we ensure that the executive branch can investigate itself without fear of intervention—direct or vicarious—from the president? Especially since Article II of the Constitution specifically puts the executive branch in charge of all federal investigations, meaning the process can’t be outsourced to or controlled by Congress?
The answer lies in writing specific special counsel regulations for investigations of the commander in chief, mandating release of the full (unclassified) report to Congress before the attorney general can provide his spin in the form of a summary. This would ensure that coverage is based on the content of the report itself rather than on the self-serving “summary” by the president’s appointees.
And even before the report is turned in, the regulations should require that if the attorney general were to interfere in any way with a special counsel’s investigation, the report would be sent immediately and directly to the House and Senate Judiciary Committees. A special select committee of trusted committee members could then be used to hear such information in sensitive cases (perhaps the Republicans could pick three Democrats, and vice versa). The logistics can be determined later, but Trump’s DOJ showed why we can’t allow decisions surrounding special counsel reports to be made solely by appointees of the president without some kind of possibility for independent review.
We also certainly shouldn’t allow the president to dodge being interviewed during special counsel investigations altogether, as President Trump did. This is why the Department of Justice should implement a regulation mandating that if the president refuses to speak to a special counsel investigating him, he will trigger a referral to Congress, where all options, including impeachment, will be on the table. This will help ensure that the president has an incentive to cooperate.
Reform #4: Indictment
As I’ve discussed, the Justice Department has two memos that say a sitting president cannot be indicted. But where does that leave us? As Walter Dellinger, another former acting solicitor general, once asked, “What does the nation do if it turns out that a president of the United States has committed serious crimes that a prosecutor can prove beyond a reasonable doubt?” Dellinger’s answer was horrifying. “One possible resolution,” he said, “would be to offer a plea bargain in which the commander in chief agreed to resign the presidency in exchange for utmost leniency. Perversely, the more financially corrupt or psychologically unstable the White House occupant, the greater his or her bargaining power: Only if you let my client go scot-free, a president’s lawyers could argue, will you be allowed to pry the nuclear codes from his hands.”
One of the reasons presidents have so much leverage is the statute of limitations, which states that someone can be convicted of a crime only if charges are brought within a certain window of the offense being committed. All Americans have this legal defense, but presidents have a unique ability to take advantage of it because they are barred from being prosecuted while in office, so by the time they leave, the statute of limitations on their conduct has often already expired. This means that instead of being inclined to resign, corrupt presidents have a warped incentive to stay in office for as long as possible. That doesn’t make any sense. We want presidents to run for reelection to help the country, not to help themselves.
There’s a clear solution to this challenge—one that maintains much of the rationale for why a sitting president cannot be indicted—and it revolves around Dellinger’s distinction between the two big phases of the criminal process: indictment and trial. There are lots of good reasons, as the Justice Department memos outline, that a sitting president cannot be forced to stand trial while in office. As Dellinger notes, the distraction could be overwhelming; and in general we want our presidents to focus on doing the nation’s work. But what about indictment? Why can’t a president even be formally accused?
Turns out the Justice Department memos don’t really offer an answer; instead they lump accusation and trial together into one ball of wax. But these are
two fundamentally different processes, and the DOJ could rewrite its rules to allow a president to be indicted even if he couldn’t be tried. This small change would make a big difference, because it would extend the statute of limitations on the president’s crimes, and it would also empower a future special counsel to take steps to indict instead of risking what happened to Mueller, when the president’s defenders spun the report as a nothingburger.
I’m heartened by the fact that not only does Clinton’s acting solicitor general, Walter Dellinger, believe we should allow the DOJ to indict the president, but so too does President George W. Bush’s solicitor general, Ted Olson, who is a fervent believer in executive power. This should provide all of us with hope that after Trump’s presidency we can find a bipartisan consensus around the idea that no one should be above the law—including the president of the United States.
Reform #5: Recusal Rules
When Attorney General Jeff Sessions recused himself from the Russia investigation, President Trump threatened to fire him and asked him to “unrecuse” himself. But as a subject of the investigation, Sessions had a moral and professional obligation to step aside. That’s what every Justice Department official I know, from Republican and Democratic administrations, has always done—followed the advice of career ethics professionals and recused themselves if they were worried about a conflict of interest. That is, every Justice Department official until Attorney General Barr.
Since being appointed attorney general, William Barr has repeatedly refused to step aside from investigations that directly relate to him. This includes the Mueller probe, about which Barr sent President Trump a memo before becoming attorney general; and it includes the Ukraine investigation, in which he is directly implicated by both the whistleblower complaint and the “transcript.” In fact, his Justice Department went as far as to suppress the complaint on the basis of a dubious reading of the campaign finance law, with Attorney General Barr in charge.
This is a clear case of the fox guarding the henhouse, which is why one of the leading bar associations in the nation, the New York City Bar Association, took the extraordinary step of criticizing Barr for not recusing, saying that “he should resign or, failing that, be subject to sanctions, including possible removal, by Congress.”
There is a better way. The Justice Department already has a protocol for circumstances like these, in which Justice Management Division ethicists are supposed to make a recommendation on whether DOJ officials should recuse themselves from a case. The problem is that these decisions appear to have been ignored repeatedly over the course of the Trump presidency.
In the future, if the advice of the Justice Management Division ethicists is disregarded by an official in the DOJ, their decision should trigger a report to the House and Senate Judiciary Committee chair and ranking member (who is of the minority party). That report can be kept secret, of course, but there must be an opportunity for both political parties to be told of a grave and unusual situation in which a Justice Department official is participating in a matter over the objections of DOJ ethicists.
Reform #6: End White House Interference in Criminal Prosecutions
When I was a 28-year-old at the Justice Department, one of my first assignments was to think through the relationship between the White House and the DOJ. It’s a fraught one. The Justice Department’s leadership is appointed by the president, but at the same time, the DOJ is made up of lawyers who are supposed to be committed to justice, regardless of what the occupant of the White House may want.
For a long time, the White House and the DOJ have had a protocol in terms of communication about criminal cases. Some of the details vary a bit from one administration to the next, but the basic idea is the president should interfere with DOJ investigations as infrequently as possible. This is done both to ensure that criminal prosecutions aren’t driven by politics and to avoid giving defendants an argument that they were selectively targeted and that their rights were violated by politicizing the criminal process. Indeed, I know firsthand that during the Obama Administration, the idea of the president mentioning anything about a criminal prosecution was virtually verboten, and I very much suspect that this was the protocol in prior Republican administrations as well.
To be sure, there are times when the president or his close advisers need to be informed about criminal matters. If, for instance, the DOJ were going to levy charges against a foreign diplomat for being a spy and risk a major diplomatic rupture, or if the DOJ were going to prosecute a major company and throw our economy into a spiral, the president of the United States should of course know about that in advance. That way, the president can prepare for the diplomatic rupture or financial catastrophe that might result from the DOJ’s decision.
But President Trump has revealed the dangers of keeping the president abreast of the DOJ’s every move. He has thoroughly politicized law enforcement operations in a way that used to be a hypothetical in my law school classroom but is now our reality.
The risk here is the destruction of the rule of law, because if a president can open and shut DOJ investigations at will, letting his friends go and pursuing his enemies with the awesome force of a federal prosecution, then the DOJ will become a political tool instead of a law enforcement agency. And we know that President Trump is willing to do this, as his few acts of clemency have included political allies like Sheriff Joe Arpaio and Dinesh D’Souza. But at least pardons are done openly, since the president can’t secretly pardon folks. By contrast, he can order the DOJ to quietly drop an investigation—as the DOJ decided to do with its inquiry into the whistleblower’s complaint. (Whether or not President Trump was involved in that decision is not yet known.)
So what to do? I don’t think it is realistic to bar the president from getting information about ongoing criminal investigations. If Congress passed such a law, it would be unconstitutional, because Article II of the Constitution vests the prosecution power in the executive branch and this would be viewed as an interference with it, at least by the current Supreme Court. And if the president voluntarily bound himself to a policy to bar giving himself such information, it could risk hurting our government, too, because as I’ve said, sometimes the president does need to know about an impending criminal prosecution.
Here we can take a lesson from the regulations governing special counsel investigations. If the president ever interferes with a criminal investigation, his doing so should trigger an immediate reporting requirement to the chairman and ranking member of the House and Senate Judiciary Committees. Obviously such a scheme has risks, since Congress, a political body, generally shouldn’t have a role in criminal investigations. But those risks are likely eclipsed by the risk of giving future presidents the untrammeled and politicized prosecution power that Trump has employed during his time in office.
Reform #7: Congressional Investigations
Right now, only members of the majority party in the House of Representatives can launch investigations. To understand the significance of this, one only needs to picture what would have happened if Democrats had not won the House in 2018. We likely would never have found out about the whistleblower’s report or what Trump did to pressure Ukraine for personal and political gain.
Our ability to hold a president accountable should not depend on the composition of Congress, because if a Democratic president abuses his power, Republicans should be able to investigate his conduct even if they don’t have 218 seats in the House. And vice versa. That’s why Congress should revise its rules to allow investigations to be launched by the party that’s in the minority as well as the one that’s in the majority.
Mere Parchment
These legislative and regulatory changes would all make a difference—but in our democracy, the only reliable check we have on our president is the people. Our founders understood that. In Federalist No. 48, James Madison, who perhaps more than anyone else is responsible for our Constitution, wrote that our laws are mere “parchment barriers.”
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Our Constitution was designed to hold a president like Donald Trump accountable. He has wielded the powers of the presidency for the benefit of himself instead of for the benefit of the American people. He has undermined the integrity of our elections—and, in the process, jeopardized our national security by leaving us vulnerable to blackmail. He has obstructed justice into the investigations of his conduct, adopting an unconstitutional view of executive power. And he has promised to do it all again. Indeed, he is doing it all again.
These are the very high crimes our founders imagined when they decided to include impeachment in the Constitution. But President Trump will not be impeached by Article I, Section 4; or by Article 1, Section 3; or by Article 1, Section 9. Those words are mere parchment. President Trump will be impeached by human beings—members of Congress who are no different from you and me; who are as frightened of their decision as Barbara Jordan and Walter Flowers and Paul Sarbanes were when they voted to remove President Nixon; who want to do what is best for our country but might not know how.
Members of Congress are human beings—as brave, as flawed, as brilliant, and as limited as each and every one of us—who will not find the right answer on their own. They need you to fill them with the courage they need to get there. So call your representatives, show up at their offices, and demand that they fulfill their constitutional duty. But don’t stop there. Ask your neighbors to come with you; hand them your copy of this book; tell them why our democracy is counting on their leadership. Call your family members, even if their thoughts on politics make your turkey taste a little worse every Thanksgiving. Especially if they do. Listen to them—really listen to them—so you can understand where they’re coming from, and then explain to them why you disagree.