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CONGRESS SHOULD PASS LEGISLATION REQUIRING THE EXECUTIVE BRANCH TO ARTICULATE CLEAR STANDARDS FOR AND REPORT
ON HOW THE WHITE HOUSE INTERACTS WITH LAW ENFORCEMENT 

The recommendations in this section are taken directly from the National Task Force on Rule of Law & Democracy's Proposals for Reform.  Read the entire report here

To prevent both intentional and inadvertent political interference with law enforcement, the White House, Justice Department, and other law enforcement agencies have for decades voluntarily limited contact between senior political officials and career law enforcement personnel.  These curbs on White House contacts are not required by law.  They are found only in written policies, voluntarily adopted by each administration, limiting who from the White House and who from the Department of Justice and other enforcement agencies can discuss ongoing investigations and cases.  Typically, these policies restrict conversations to high-level officials on both sides, with the White House counsel’s office playing a central role in managing and monitoring White House contacts.  They also include special protocols for cases affecting national security or where the Department of Justice is defending an administration policy.  These policies recognize that political actors are, at least in part, motivated by political concerns that should not affect the application of the law and that law enforcement personnel are better situated to make decisions about specific cases or investigations. They guard against overt direction from the White House, or the use of investigative agencies to punish political foes. They also protect against the inadvertent pressure or bias that may result from a call from a White House official about a specific matter.  Even a question about a case can lead an official to presume an interest in its outcome; the official then may try to ensure the desired outcome.  As former Attorney General Benjamin Civiletti put it, presidents and other top officials “unintentionally can exert pressure by the very nature of their positions.”  At the same time, the policies recognize that the president has a unique and personal role in executive branch policy determinations, including in how our laws are enforced.  For example, presidents have, appropriately, told antitrust enforcers to step up enforcement without directing the prosecution of a specific firm.  By contrast, White House influence in individual cases risks creating the perception — and potentially the reality — that law enforcement is being used as a political or personal tool.  Every administration since Ford has established such “limited contacts” policies between the White House and the Justice Department.  Although less consistent, there have also been similar policies covering other agencies with law enforcement responsibilities, such as the Internal Revenue Service and the Department of Labor.  Despite their importance, these policies have received scant public notice.  Often, they have not been released until well after the end of a presidency.  The Obama administration’s most recent internal White House policy still has not been released.  Unfortunately, it has become increasingly clear that these voluntary policies, without formal legal requirements or enforcement mechanisms, cannot prevent political interference in law enforcement activities. For example, President George W. Bush’s administration dramatically relaxed its own limited contacts policies, ballooning the number of political officials eligible to have contact with law enforcement personnel to more than 800.  After the U.S. attorneys’ scandal, Attorney General Michael Mukasey reinvigorated the policy.  The current administration, too, has adopted a limited contacts policy.  But reports suggest the policy has not always been followed.  For example, the president’s then-Chief of Staff Reince Priebus reportedly asked a top FBI official to publicly disclose alleged facts pertaining to the bureau’s investigation of Russian interference in the 2016 election in order to refute a news report that senior members of the Trump campaign had frequent contacts with Russian agents.  Trump himself, on several occasions, directly contacted the U.S. attorney in the Southern District of New York, who had jurisdiction over a number of matters involving the president’s private and financial interests, ostensibly to develop a personal relationship, before ultimately firing him.  (That former U.S. attorney is the co-chair of this Task Force.)  Trump also drew criticism for taking the unusual step of personally interviewing candidates for the U.S. attorney’s successor.  While there is no evidence that the president made inappropriate requests in these conversations, they make clear that it is possible for a president to put inappropriate pressure on prosecutors.  When longstanding norms governing contacts between the White House and law enforcement officials are violated, even for reasons that are not inappropriate, it creates a troubling precedent for future administrations and opens the door to inappropriate breaches.  While Congress should not itself regulate how the executive branch deals with law enforcement, it can take steps to increase transparency and bolster accountability, thereby deterring misconduct. Specifically, Congress should pass legislation to:

Require the White House, the Department of Justice, and other law enforcement agencies to issue and publish a White House contacts policy. The legislation should require each administration to identify specific officials, in both the White House and the relevant enforcement agencies, who are authorized to communicate about individual law enforcement matters. This will send a strong message that Congress believes limitations on White House influence are critical to impartial law enforcement. The public disclosure requirement will enable the public to assess whether the policies are adequate to ensure that law enforcement is not subject to undue political influence.  Disclosure also makes it possible for Congress to use hearings and other oversight powers to address any deficiencies.

Require law enforcement agencies to maintain a log of contacts with the White House pertaining to specific civil or criminal enforcement matters undertaken by the Justice Department or other federal agencies with enforcement authority. The log should be limited to communications about individual cases or investigations, including communications about the litigants, subjects, targets, and witnesses, spelling out the people involved in the communication and the matter discussed.  It should not include routine (and necessary) contacts where the White House seeks legal advice from the agency or is participating in legal policy issues; contacts relating to a matter in which the United States or one of its subdivisions is a defendant or a matter concerning national security; and other ordinary contacts that do not concern specific cases or investigations.

Require relevant agencies to submit reports based on the above logs to relevant House and Senate committees, the Department of Justice’s Inspector General, and covered agencies’ inspectors general. Those reports should omit information that could jeopardize confidential witnesses, undercover operations, or the rights of those under scrutiny. Congress and inspectors general could pose follow-up questions about the propriety of particular White House contacts.

These measures, by allowing for oversight of improper communications, will help deter inappropriate White House conduct. If someone knows there will be a record of their contact, they will likely take care to ensure it is appropriate. White House staffers are already accustomed to making similar judgments because White House emails that would otherwise remain confidential risk being publicly released under the Freedom of Information Act if they are sent to agencies. Based on our experience serving in government, we do not believe a logging and reporting requirement would be overly burdensome. In fact, we expect that reportable White House contacts about a specific pending case or investigation outside of the interagency coordination process would be rare. The White House and Department of Justice already maintain records of similar types of information; indeed, the Department of Justice electronically tracks all of its communications, including with outside parties.  Nor are these measures likely to raise legitimate constitutional concerns.  Congress currently regulates White House contacts with the Internal Revenue Service, preventing officials, including the president, from requesting that IRS employees start or stop an audit.  It would be on strong constitutional footing to also require the White House and executive branch enforcement agencies to adopt and publish policies to regulate White House-agency contacts, codifying longstanding practice.  Congress has passed other laws that require executive branch documents and records of activities to be retained and disclosed in order to further Congress’ oversight functions and the public’s interest in transparency and accountability.  For instance, most White House documents are publicly released after an administration has concluded, pursuant to the Presidential Records Act.  The president does not have an absolute right to protect personal or White House contacts from disclosure.

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