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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Roger Stone Gets His Reward

Last Friday, a few days before Roger Stone was due to report to prison, president Trump commuted his sentence. Stone remains a convicted felon (for now) but will not have to serve his forty-month prison term. Trump’s move was not a surprise; he’s hinted at pardoning Stone for months and it always seemed unlikely he would allow his friend and confidant to actually serve time. But although expected, Trump’s action to reward Stone for his criminal cover-up on Trump’s behalf is still profoundly corrupt. The only consolation is that Trump was forced to act before the November election so voters can respond accordingly.

Roger Stone

Background on Stone’s Conviction

In 2016 Russian hackers stole tens of thousands of emails and documents from the Hillary Clinton campaign and Democratic party sources. In the months leading up to the presidential election, they gradually released those documents via Wikileaks, in an effort to boost the Trump campaign and harm Clinton. Special Counsel Robert Mueller’s team ultimately indicted twelve Russian intelligence officials for taking part in that hacking. Although they documented multiple contacts between Russians and the Trump campaign, Mueller’s investigators did not conclude that anyone in the campaign had actively conspired – or “colluded” – with the Russians concerning the hacking and release of the emails. Mueller did conclude that the Russians perceived they would benefit from a Trump victory and worked to make that happen, and that the Trump campaign perceived that it would benefit from Russia’s actions.

Stone is a long-time Republican operative and advisor to Trump and his campaign. During the fall of 2016, he acted as an intermediary between the Trump campaign and Wikileaks, gathering information about what stolen documents might be released and when. He made repeated public statements claiming inside knowledge of what Wikileaks was doing and claiming to be in touch with Wikileaks founder Julian Assange. The Mueller report documented multiple contacts between Stone and the campaign concerning the Wikileaks releases, as well as Trump’s own knowledge and encouragement of Stone’s efforts.

In 2017, Stone was called to testify before a Congressional committee investigating Russia’s interference in the election and possible connections to the Trump campaign. During his Congressional testimony he repeatedly lied about his role as an intermediary between the campaign and Wikileaks and his contacts with others in the campaign. Over a period of several months he also repeatedly threatened another witness, Randy Credico, trying to persuade him not to testify or to lie to investigators.

Mueller’s prosecutors ultimately indicted Stone for seven felony counts of obstruction of justice, lying to Congress, and witness tampering. A jury in the District of Columbia found him guilty of all charges in November of 2019. The sentencing guidelines in his case called for sentence of about 7 to 9 years. But after prosecutors had filed papers arguing for a guidelines sentence, Attorney General Barr, in an extraordinary personal intervention, ordered the U.S. attorney to disavow that position and seek a more lenient sentence – resulting in all of the career prosecutors withdrawing from the case. Judge Amy Berman Jackson ultimately sentenced Stone to forty months in prison, noting during the sentencing hearing that Stone had been “prosecuted for covering up for the president.”

Stone sought to postpone serving his sentence, citing concerns about his age and Covid-19. Judge Jackson denied his request to delay his report date until September, noting that there were no Covid outbreaks in Stone’s designated prison. Stone was due to report to prison today, Tuesday, July 14. But late last Friday evening, president Trump announced he was commuting Stone’s sentence.

White House Press Secretary Kayleigh McEnany

The White House Statement on Clemency

The official White House statement on this grant of “executive clemency” is, quite frankly, an embarrassment. It reads like a Trump Tweet. It alleges that, “Roger Stone is a victim of the Russia Hoax that the Left and its allies in the media perpetuated for years in an attempt to undermine the Trump Presidency.” It claims that frustrated prosecutors, unable to prove collusion, resorted to “process based charges” borne of “frustration and malice” and a desire for “splashy headlines.” It further claims that, “The simple fact is that if the Special Counsel had not been pursuing an absolutely baseless investigation, Mr. Stone would not be facing time in prison.” And it concludes with one of Trump’s trademark exclamation points: “Roger Stone is now a free man!” (Interestingly enough, though, the statement never denies that Stone committed the crimes for which he was convicted.)

Where to begin? The “Russia Hoax,” of course, was never a hoax. It was a serious investigation into Russian interference in the election and the possible involvement of those in the Trump campaign. Mueller indicted about two dozen Russians for that interference, and documented scores of contacts between Russian individuals and those associated with the Trump campaign.

This should go without saying, but the fact that no campaign officials were charged with conspiring with Russia does not render the investigation itself a hoax. Often the purpose of such a white collar investigation is to determine whether a crime has been committed, when that may be unclear at the outset. There was a more than sufficient reason to investigate, as recognized not only by the Department of Justice but also by both parties on Capitol Hill, who conducted their own probes.

What’s more, as Mueller noted, the fact that witnesses including Stone and the president himself lied to investigators or refused to cooperate impeded the ability to find the whole truth about the Trump campaign’s contacts with Russia. Even if those contacts were not ultimately criminal, Stone’s obstruction kept investigators and the public from learning the full details and the extent to which the Trump campaign encouraged foreign interference in the election. Truthful testimony from Stone also may have indicated that Trump himself lied in his written answers to Mueller, when he denied any recollection of Stone’s involvement with the Wikileaks document dumps. Stone’s stonewalling kept all that information concealed and protected the president.

By the way, speaking of Congressional investigations, contrary to the White House statement’s implications, Stone was not convicted of lying to Mueller’s investigators. He was convicted of lying to a Congressional committee — one that, at the time, was led by Republicans. You might think some of those Republican members of Congress would be concerned about the president granting clemency to a defendant convicted of lying to them and obstructing their investigation. But so far – crickets.

The idea that Mueller was seeking “splashy headlines” is also pretty comical. Mueller was notoriously tight-lipped during the investigation, refusing to speak out even after the investigation was concluded and Attorney General Barr had distorted his findings. In fact, he only now broke his silence in the wake of the Stone commutation, writing an extraordinary op-ed in the Washington Post defending the prosecution and his team from the attacks by the White House. Mueller never sought headlines during his investigation, but Trump’s actions concerning Stone were finally enough to push him over the line.

Attorney General William Barr

Better Ask Barr

The White House might have checked with Trump’s own Attorney General before releasing the statement trashing the Stone prosecution. Attorney General William Barr has shown himself willing to go very far to protect Trump and the presidency, resulting in multiple calls for his own resignation and impeachment. And he did personally intervene in the Stone case, undermining his own career prosecutors to call for a sentence below that recommended by the sentencing guidelines.

But apparently commuting Stone’s sentence was too much even for Barr. He recently said that he thought Stone’s prosecution was “righteous” and that his (reduced) sentence was appropriate. According to news reports, he counseled Trump against commuting Stone’s sentence. It’s hard to know whether such reports are credible or whether Barr is just trying to save face. But regardless, I won’t be holding my breath waiting for Barr to resign in protest.

Roger Stone
Roger Stone

Stone Gets His Reward

Throughout Mueller’s investigation and his own trial, Stone repeatedly and proudly proclaimed that he would never testify against the president. Trump regularly praised Stone for keeping his mouth shut, with Tweets like this:

Just last week, as if to remind the president that he’s been a stand-up guy, Stone said in an interview with journalist Howard Fineman: “He [Trump] knows I was under enormous pressure to turn on him. It would have eased my situation considerably. But I didn’t.  They wanted me to play Judas. I refused.” And now, with the grant of clemency, Stone has been rewarded for his loyalty.

To see how Trump operates, all you have to do is look at how different witnesses from his inner circle were treated. Cohen and former campaign manager Paul Manafort, who ultimately cooperated with investigators, have gone to jail and received no clemency. Cohen was publicly derided by Trump as a “rat.” But Stone, who stood fast and took the rap, found favor with the boss and will never see the inside of a jail cell. The whole thing sounds like the script from a mob movie.

The Potential Crimes in the Commutation

Other presidents have issued controversial pardons and commutations. But Trump’s clemency for Stone is unique in that it so clearly appears to be part of a personal quid pro quo, a reward for Stone’s refusal to cooperate in a case potentially implicating the president himself. This makes Trump’s clemency for Stone not merely unseemly, but potentially criminal itself. Indeed, Barr himself acknowledged during his confirmation hearing that it would be a crime for a president to pardon a witness in exchange for a promise not to testify against him.

As I wrote in this post, one potential crime is bribery. A president who grants clemency in exchange for a witness refusing to cooperate against the president could be guilty of bribery of a witness, in violation of 18 U.S.C. 201(b)(3). The president is providing a thing of value – the grant of clemency – to Stone in exchange for Stone’s agreement not to testify against him. It doesn’t matter that the actual refusal to testify took place some time ago. The crime is the corrupt deal; the president is now simply consummating that earlier, understood agreement.

Another possibility is that Trump and Stone’s actions could be seen as steps in a conspiracy to obstruct justice. It’s the culmination of an ongoing corrupt endeavor to prevent the Mueller investigation and various Congressional committees from learning the truth. Although those investigations are largely concluded, the commutation could be considered an overt act in furtherance of an ongoing conspiracy, lasting several years, to obstruct those investigations.

If Trump loses in the fall, a new Department of Justice could potentially investigate such charges. It’s unclear whether there will be any appetite to do so. The country may just be ready to move on. And of course, Trump may grant a flurry of new pardons after the election – including potentially trying to pardon himself – that could complicate any such efforts.

The Silver Lining – Sort Of

It was inevitable that Trump would spare Stone from prison. If there is a silver lining, it’s that he was forced to do so prior to the election. Trump has been pretty successful at stonewalling and running out the clock on a number of potentially damaging controversies. Although the Supreme Court decided in a pair of cases last week that he does not have absolute immunity from turning over his tax returns to investigators, it looks like he will be able to tie those subpoenas up with further litigation until after the election. Various White House officials, such as former White House counsel Don McGahn, have refused to testify before Congress and those claims are still tied up in court. Lawsuits pending for several years about Trump enriching himself in violation of the Emoluments Clause have yet to produce any significant public information. And although it seems extremely likely that Trump will ultimately pardon his former national security advisor Michael Flynn, that case too continues to slog through the courts and Trump may be able to avoid acting until after the election.

But when it came to Stone, Trump ran out of time. He may still decide to grant Stone a full pardon once the election is over. But for now, he either had to act or let Stone go to prison. Many details about Trump administration corruption and Trump’s personal finances remain hidden, but at least this latest episode of corruption is out there for the voters to see. Trump has to own this one. And in a long litany of corrupt acts and perversions of the justice system by this administration, rewarding Stone for his refusal to “rat out” the president deserves a place near the top of the list.  

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