The Protecting Our Democracy Act

Last week House Democrats introduced new legislation, the “Protecting Our Democracy Act,” described as “a landmark reforms package that will prevent future presidential abuses, restore our system of checks and balances, strengthen accountability and transparency, and protect our elections.” The need for such reforms has become apparent in light of the abuses by the Trump administration over the past four years. Trump’s actions — including stonewalling Congressional investigations, firing Inspectors General, and interfering in criminal investigations — have highlighted how much the proper functioning of the executive branch has relied on unwritten norms without legal force to back them up. The legislation seeks to provide some new legal muscle to enforce those norms.

Just as in the post-Watergate era, legislators in the post-Trump era must take steps to ensure that the abuses by this administration are not repeated. The bill has no chance of passage until after the election, and only then if the Democrats succeed in taking the Senate. But overall it’s a solid package of much-needed reforms, and the country would benefit from its passage.

Roger Stone
Roger Stone

Preventing Abuse of the Pardon Power

Title I of the Act contains reforms designed to prevent the abuse of the pardon power by a president, with “pardon power” broadly defined to include not only granting pardons but also the commutation of sentences. Pardon reform is tricky, because the Constitution gives the president broad authority to grant clemency. Congress probably can’t simply prohibit particular kinds of pardons. Instead, the legislation seeks to increase transparency surrounding pardons and to clarify that in some circumstances granting a pardon may run afoul of other criminal laws.

President Trump’s use and threatened use of the pardon power has led to several different controversies. During the Mueller investigation, there were reports that attorneys for the president may have dangled the prospect of a pardon before potential witnesses such as Paul Manafort and Michael Flynn. The implication was that they should refuse to cooperate against the president and if they got into any trouble, Trump would pardon them. More recently, when Trump confidant Roger Stone was convicted for obstruction of justice and lying to Congress about his role as an intermediary between the Trump campaign and Wikileaks concerning stolen Democratic emails, Trump commuted Stone’s sentence rather than allow him to report to prison.

The first section of this Act requires that for pardons involving certain “covered offenses” the Attorney General must provide to Congress within thirty days the Department of Justice investigative materials related to the offense and consideration of the pardon. The president must also produce to Congress within the same time period any materials produced or obtained by the White House pertaining to the pardon. “Covered offenses” under this section include offenses arising from investigations where the president or one of his/her relatives is a target, subject or witness, offenses involving refusal to testify or provide documents to Congress, and crimes of obstruction of justice, false statements, or perjury related to Congressional proceedings or investigations.

This first section is primarily about transparency. Again, Congress can’t prohibit the president from pardoning a family member, or from commuting the sentence of someone like Roger Stone. But the Act seeks to ensure that Congress and the public will at least receive information related to the grant of any such pardons. Of course, this depends on compliance by the DOJ and White House; with the current administration, for example, we might expect them to resist compliance with at least some of these requirements, perhaps by claiming executive privilege over the pardon deliberations.

Pardons and Bribery

The Act also clarifies that federal bribery law may apply to granting pardons. It specifies that the definition of “public official” under 18 U.S.C. 201, the primary federal bribery law, includes the president and vice president. It further specifies that the grant of a pardon or other clemency could serve as an “official act” under that statute, and that the grant of clemency also could constitute a “thing of value” under the statute in a case involving bribery of a witness.

Once again, these changes would not outlaw a president pardoning a witness against himself. But they seek to clarify that, in such a case, the act of granting the pardon may violate federal bribery law, even if the pardon itself stands. These changes are primarily clarifications, not new requirements. As I wrote here, I believe under the existing law it’s already true that granting a pardon is an “official act” and could be a “thing of value,” and that corrupt pardons could be prosecuted as bribery. And it’s already generally accepted that the bribery statute applies to the president. These changes would simply make these things explicit, and there’s no harm in that even if it’s not strictly necessary.

No Self-Pardons: The final section of this portion of the Act provides that a president can’t pardon himself and that such a pardon will have no legal effect. This section is of dubious constitutionality. Whether a president could self-pardon has never been settled, but it is almost certainly a constitutional question for the Supreme Court if we ever get to that point. It’s likely not something that Congress can control by statute.

The “No President Is Above the Law” Act

The next portion of the Protecting Our Democracy Act is about statutes of limitations. It provides that the limitations period for federal crimes will be tolled – stop running – during the time a president and vice-president are in office. This would apply to crimes committed before they took office, as well as to crimes committed while in office. The limitations time would start to run again once they left office.

The need for this act stems from the current Department of Justice opinion that a sitting president may not be indicted while in office. This is just an internal opinion, and has never been tested by a court. But it is current DOJ policy and special counsel Robert Mueller, for example, felt himself bound by it. Once a president leaves office, it’s clear he or she is then subject to prosecution.

Most federal crimes have a statute of limitations of five years. If a president committed crimes in order to win the election and then was in office for two terms, he or she could effectively “run out the clock” on those crimes. The same would be true for crimes committed while in office, if they were more than five years old when the president left office. If the president is not impeached and removed from office before the limitations period expires, and if the president can’t be indicted while in office, then he/she effectively would be immune from prosecution. This previously unlikely hypothetical has taken on real significance with the prospect of president Trump possibly winning a second term.

This Act will ensure that while the president and vice-president are in office, the statute of limitations clock stops running. This is a much-needed reform and is well within Congress’s power. As the name suggests, it will ensure that the president is not above the law and cannot avoid criminal responsibility merely by virtue of being in office.

Picture of the U.S. Constitution

Foreign and Domestic Emoluments Enforcement

The formerly obscure emoluments clauses of the Constitution have been front and center since before Trump was even sworn in. The foreign emoluments clause prevents federal officers from receiving presents or other things of value from foreign nations unless Congress provides its consent. The  domestic emoluments clause prohibits the president from receiving payments or gifts from the federal government or a state government. These anti-corruption provisions are designed to prevent conflicts of interest and divided loyalties in federal officials.

President Trump’s international business empire has raised grave concerns about potential violations of these clauses. For example, foreign governments may have granted favored tax or zoning treatments to properties owned by the Trump Organization in order to curry favor with the president.  Foreign delegations visiting Washington D.C. stay at the Trump Hotel, effectively putting money in the president’s pockets. Several lawsuits have been filed alleging emoluments clause violations, but they have sputtered through the courts for nearly four years and have raised difficult issues concerning proof of injury and who actually has standing to sue.

The Protecting Our Democracy Act seeks to put some enforcement teeth behind the constitutional provisions. The legislation basically repeats the constitutional prohibitions but goes on to provide that Congress may bring a civil action to enforce those prohibitions and that those lawsuits will be heard on an expedited basis. In other words, this Act gets around the constitutional standing issues related to enforcing the emoluments clauses by essentially repeating those prohibitions in a statute and providing that Congress has standing to enforce it. It also makes clear that the statutory prohibitions apply to the president and vice-president, in response to some academic debate over whether the constitutional language applies to those officers.

This too should be well within Congress’s power and seems like a useful reform. The Act also beefs up requirements under the Ethics in Government Act for public officials to disclose the receipt of any emoluments, and provides that the Office of Government Ethics and Office of Special Counsel may investigation any violations.

Enforcement of Congressional Subpoenas

A significant problem highlighted during the Trump administration has been the inability of Congress to enforce compliance with its subpoenas. Trump has routinely stonewalled Congress, refused to produce documents, and instructed members of his administration not to testify. During the impeachment investigation, for example, many key witnesses simply refused to show up, and the White House refused to supply subpoenaed documents. Congress can file a lawsuit to force compliance, but the court process can take many months. For example, the lawsuit seeking to compel former White House counsel Don McGahn to testify before the House about incidents detailed in the Mueller report is still working its way through the courts after a year and a half. It appears the administration will successfully run out the clock without McGahn ever testifying.

The bill seeks to remedy this problem. It first makes it clear that Congress has a right of action to sue to enforce its subpoenas, to clear up any lingering questions about standing that have plagued some of the subpoena lawsuits. It requires that such lawsuits be expedited as much as possible, and requires the judiciary to establish rules to ensure that happens. It provides financial penalties for failure to comply with a subpoena, and that those fines may not be paid by government agencies with taxpayer dollars.   

The Act also contains other rules to ensure compliance with subpoenas. One interesting section provides that a failure to comply with a Congressional subpoena may be referred to the D.C. Attorney General for prosecution for contempt, in which case the crime would be a misdemeanor. The current Contempt of Congress statute requires Congress to refer such a case to the D.C. U.S. Attorney. But that prosecutor works for the administration, and if the lawsuit is seeking to compel compliance by the administration that sets up a potential conflict of interest. Now in such a case Congress may seek enforcement by the local Attorney General instead.

The Act also makes clear that this legislation does not override or constrain any other authority that Congress already has to enforce its subpoenas. This would include the inherent contempt power: Congress’s ability to send out its Sergeant at Arms to arrest and detain those who fail to comply. Congress has been reluctant to invoke this power and has not used it for decades, but it is always lurking in the background.

William Barr
Attorney General William Barr

Security from Political Interference in Investigations

Since Watergate, there has been a strong norm that limits the communication and coordination between the White House and the Justice Department concerning ongoing investigations. This shields the administration of justice from even the appearance of political influence.  Trump and Attorney General Barr have demonstrated that this norm can easily be shredded by an administration indifferent to the damage it causes to the DOJ.  This DOJ has intervened in cases involving Trump allies such as Roger Stone and Michael Flynn, and has launched investigations, such as the probe into the origins of the Russia investigation, that appear to be designed to benefit the president politically. The politicization of the Justice Department may end up being the area where damage caused by this administration takes the greatest time to heal.

The Act seeks to at least shed some light on any such activities by requiring the Attorney General to keep a log of certain contacts between DOJ and the White House concerning ongoing investigations, and to provide that log to the DOJ Inspector General on a semi-annual basis.  The IG, in turn, can provide notice of any suspicious communications to Congress.

This provision too is limited in that it depends on voluntary compliance by the administration. A corrupt administration bent on politicizing the DOJ could simply refuse to enter relevant communications in the log. And we could probably expect claims of Executive Privilege as to at least some such communications. But this provision would at least give some legislative recognition to the vital importance of what, up until now, has simply been an executive branch policy.

Protecting Inspector General Independence

The independent Inspectors General who oversee the various federal agencies perform a critical role in rooting out corruption and ensuring compliance with federal law. President Trump has removed a number of Inspectors General, apparently in retaliation for investigations that may have led to exposing wrongdoing within his administration — in other words, for doing their jobs. The Act provides that an IG may be removed only for specific, limited causes, requires the administration to provide documentation to Congress explaining the reason for any removal, and clarifies the independence and powers of the IGs within the intelligence community.  

Red square in Moscow
Red Square in Moscow

Defending Elections Against Foreign Interference

This section is inspired, of course, by Russia’s interference in the 2016 election and efforts to assist the Trump campaign, which was well-documented by the Mueller report and by an even lengthier report by the bi-partisan Senate Intelligence Committee. After the election, we learned that although most campaign officials would understand it was improper to accept foreign assistance and that any offers of such assistance should be reported to the FBI, there was no law in place that required such reporting. Federal election law was also potentially ambiguous concerning whether accepting something like opposition research from a foreign government would violate the law.

The Act seeks to remedy those deficiencies by requiring campaigns and other political entities to report any efforts at foreign interference or contact by foreign agents to the Federal Election Commission and the FBI, and requiring the FBI to report such information to Congress. It provides criminal penalties for those who violate these requirements. The Act also clarifies that the Federal Elections Campaign Act prohibits accepting help such as opposition research, polling, and other non-public information from foreign actors, and provides criminal penalties for violating that prohibition.

Other Sections

Other portions of the bill include: 1) strengthened protections for whistleblowers; 2) increased restrictions on the Executive Branch’s ability to re-direct or refuse to spend money appropriated by Congress;  3) strengthened enforcement and penalties for the Hatch Act, which generally prohibits federal employees from engaging in improper partisan political activities (and which has been repeatedly ignored and violated by members of the Trump administration); 4) limits on the president’s ability to appoint acting heads of agencies, rather than permanent heads subject to Senate confirmation; and 5) strengthening Congressional oversight of presidential emergency declarations.

Conclusion

In the post-Trump era, there will be a compelling need for reform legislation to prevent some of the abuses we’ve seen over the past few years. This proposed legislation from the House is a great start. Let’s hope it is able to be re-introduced and passed by a new Congress after the first of the year.

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Sidebars Five Year Anniversary: The Top Ten Posts

Five years ago today I published my first post on this blog, a piece about a New York Times reporter at risk of being held in contempt for refusing to identify a source. Sidebars has grown a lot since then and has been fortunate enough to gain some accolades along the way (including my favorite shout-out from the D.C. Bar Magazine: “Come for the ongoing smackdown with Alan Dershowitz, stay for the trenchant commentary on the rule of law”) . To mark this anniversary,  I thought it would be fun to take a look back at the Sidebars “Top Ten”: my ten most-read posts over the past five years.

During those five years I’ve written more than 120 posts on Sidebars, an average of about one every two weeks. My pace of posting on the blog has definitely slowed down over the past couple of years as I’ve been writing more as a contributing columnist for the Washington Post and working on an upcoming video lecture course on white collar crime for The Great Courses. But the blog continues to be a great vehicle for deeper dives on selected topics; at about 2500-3000 words, my average post on Sidebars is more than three times the length of a typical op-ed in the Post. Brevity may be the soul of wit, but it’s rarely a lawyer’s strong suit — and some of these subjects really do call for a more in-depth analysis.

As readers know, my focus on Sidebars is on white collar crime. The investigation by special counsel Robert Mueller was the most consequential white collar case in a generation, so it’s probably not surprising that a majority of my top posts related to that investigation. Other major white collar cases, such as the prosecutions of Virginia governor Bob McDonnell and New Jersey Senator Bob Menendez, also have been bountiful sources of material. But whatever else you might think of them, you can’t top the Mueller investigation and the Trump administration when it comes to providing material for commentators on white collar crime. These results definitely reflect that.

And with that – here are the Sidebars Top Ten.

#10: Fake News and the National Review

Andrew McCarthy of the National Review is a former federal prosecutor for the Southern District of New York. As a columnist, he’s been a vociferous critic of the Mueller probe and booster of president Trump. During the Mueller investigation he regularly wrote columns attacking the investigation that were so factually and legally off-base that it’s hard to believe he was once an Assistant U.S. Attorney. Now that Mueller is done, McCarthy is still at it, peddling pro-Trump conspiracy theories about Ukrainian interference with the election and the “Deep State” efforts to take down the president. In what became my tenth most popular post, I collected a number of the arguments from McCarthy’s columns about Mueller and showed how he was misleading his readers. I sent the post to the National Review, and I along with some other law professors on Twitter encouraged McCarthy and the National Review to respond, but they never did.

10) What Andrew McCarthy Gets Wrong about the Mueller Investigation – 3/22/18

 

#9: When is Lying a Federal Crime?

The False Statements statute, 18 U.S.C. 1001, is a workhorse in the white collar prosecutor’s stable. It broadly criminalizes material false statements made to the federal government, even if not under oath. A number of witnesses in the Mueller investigation, including Michael Flynn and George Papadopoulos, pleaded guilty to false statements for lying to the FBI during interviews. The statute applies to written false statements as well, and early in the Mueller investigation there was speculation that individuals including Jared Kushner and Jeff Sessions might be liable for concealing various foreign contacts when they filled out paperwork to apply for a security clearance. In this post I explained the scope and requirements of the false statements statute and how it potentially could apply in such a case.

9) Lying on a Security Clearance Form: The Crime of False Statements – 6/5/17

#8: The Dershowitz “Smackdown”

Harvard Law Professor Alan Dershowitz was a vocal critic of the Mueller investigation. For two years Professor Dershowitz was all over conservative media attacking the investigation and making sweeping arguments about executive power and presidential immunity from prosecution that frankly seemed increasingly unhinged.  I’ve written several different posts and articles rebutting Dershowitz’s claims.  The most popular blog post has been this one from June 2017,  taking on Dersh’s argument that the president can’t be charged with obstruction of justice because, well, he’s the president.

8) Trump and Obstruction: What Alan Dershowitz Gets Wrong – 6/19/17

#7: A RICO Review

The Mueller probe offered me several opportunities to write posts explaining the elements of leading white collar statutes and then illustrating them by discussing their potential application to the Mueller investigation. The False Statements post, number nine above, was one such example. Another one ended up as number seven on the list. It provides a primer on the Racketeer Influenced and Corrupt Organizations act (RICO) and then discusses how it potentially could apply to the matters that Mueller was investigating. Mueller, of course, did not end up pursing RICO charges against anyone, Russian or American. But we may not have heard the last of RICO and president Trump. Prosecutors in the Southern District of New York may be looking at possible RICO charges involving the Trump Organization. The SDNY is notoriously fond of RICO, and regardless of whether the other elements of the crime could be established, the Trump Organization is a classic RICO “enterprise.”

7) RICO and the Mueller Investigation – 1/16/18

#6: Fraud and the Sentencing Guidelines

My sixth most popular post is completely unrelated to Mueller. In 2015 the Federal Sentencing Commission revised the guideline used to calculate the sentence in federal fraud cases. That guideline is key to white collar practice because so many white collar cases involve fraud charges. The old guideline had come under a lot of criticism for the way it calculated white collar sentences, and reform was thought to be long overdue. In this post I discussed the changes made by the new fraud guideline and explained why those amendments really amounted to little more than tinkering around the edges.

6) The New Sentencing Guideline for Fraud Cases – 5/4/2015

#5: What’s This Blog About, Anyway?

I’m particularly pleased this post made it into the Top Ten. It deals with what seems like it should be a fairly simple and foundational question: what is white collar crime? If you look in the federal criminal code you won’t find a definition, or a section titled “white collar offenses.” In fact, there is no universally accepted definition of white collar crime, even though it clearly is recognized as a distinct practice area — not to mention as the subject of my law school class. This post, way back from only the second month of the blog, is my take on the definition and characteristics of white collar crime. One key takeaway?   — the name itself is something of a misnomer.

5) The Definition of White Collar Crime – 11/26/14

 

#4: Who Isn’t Guilty of That?

I wrote this post on Contempt of Congress back during the Obama administration, when the Republican Congress held the IRS Commissioner, Lois Lerner, in contempt. Prosecutors declined to pursue the case and that was the end of it, and the post lay largely dormant for a couple of years. But recently there has been renewed interest in Congress’s contempt power, in light of the apparent stonewalling of Congressional investigations by the Trump administration. And that has led to a lot of renewed interest in this post, catapulting it to number four on the list. Will Congress dust off its inherent contempt power and start locking up recalcitrant witnesses in that  rumored jail cell in the basement of the Capitol? We may soon see.

4) Contempt of Congress – 4/20/15

#3: Bribery and the Emoluments Clause

Since before president Trump even took office, there has been controversy about his extensive business holdings and whether he might profit from the presidency in violation of the Constitution’s emoluments clause. This relatively obscure Constitutional prohibition is now the subject of several ongoing lawsuits. My third most popular post, written after the election but before Trump was inaugurated, explained the foreign emoluments clause, how it relates to federal bribery law, and whether Trump was at risk of violating it.

3) The Emoluments Clause, Bribery, and President Trump – 11/29/16

#2: It’s Conspiracy, Not Collusion

In the early days of the Mueller investigation, a frequent refrain from the president and his supporters was that collusion with the Russians, even if it did take place, would not be a crime. I wrote this post early on in the Mueller investigation. It explained how, for criminal law purposes, the proper term is conspiracy, not collusion. It also described how allegations that the Trump campaign colluded with the Russians to influence the election, if true, could in fact constitute a conspiracy to defraud the United States — even if the conduct did not directly violate another criminal statute.

2) Yes, Colluding with Russians to Interfere with the Election is a Crime – 7/5/17

#1: “Collusion” is a Crime

My most popular post of all time — by quite a large margin — also dealt with the question of “collusion.” In February 2018 Mueller indicted thirteen Russian individuals and three Russian companies for engaging in a social media campaign to influence the 2016 presidential election. The lead charge in that indictment was a conspiracy to defraud the United States by impairing, obstructing, and defeating the lawful government functions of the Federal Election Commission, State Department, and Justice Department. This was the same legal theory I had outlined about six months earlier in my second most popular post, described above. One of the indicted Russian companies appeared in court and challenged that conspiracy charge. In November 2018 the federal judge in the case denied that challenge and upheld the conspiracy theory that effectively can make “collusion” a crime. My post describing that judge’s ruling, and the possible implications for the Trump campaign, because my most popular post of all time.

1) Judge in Mueller Case Upholds Legal Theory that Makes Collusion a Crime – 11/23/18

Thanks for indulging me in this look back.  Whatever the next years bring, I suspect there will continue to be no shortage of material. Thank you for reading!

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