A healthy debate has raged for some time as to whether President Trump should be prosecuted for actions in office. (There seems to be consensus that financial crimes predating and/or independent of his presidential duties should be investigated and prosecuted to the full extent of the law if facts warrant.) Regardless of any criminal prosecution, the next attorney general will need to review misconduct in the Trump years relating to the administration of justice to make appropriate recommendations for reform and repair of our government.

One cannot effectively recommend what changes to the pardon process, for example, need to be made without reviewing how it was abused. A full listing of all of Trump’s pardons and the reasons they are problematic should be undertaken. These reasons could range from familial connections; a crime for which the president is under investigation; lack of a comprehensive review of the record; and/or concerns about any quid pro quo. While the president has great latitude in the pardon power, it is not unlimited.

The nonpartisan Protect Democracy has proposed a number of reforms, including legislation to grant Congress all materials relevant to a pardon and reaffirmation or clarification that bribery and obstruction statutes apply to pardons (i.e., a pardon in exchange for silence in a prosecution of the president). When the pardon is for contempt of court (as was at issue in the Joseph Arpaio pardon), “Congress should codify the requirement that the court must appoint a private attorney to prosecute contempt of court for defying a court order that protects others’ constitutional rights in a case in which the Justice Department abandons an investigation or prosecution after the President issues a pardon,” Protect Democracy said.

Similarly, presidential pressure regarding ongoing or potential prosecutions or enforcement matters constituted one of Trump’s worst violations of democratic norms. Whether it was intervention in prosecutorial or sentencing decisions (e.g., Michael Flynn), demands to investigate political opponents (e.g., the Ukraine extortion plot) or antitrust actions, Trump used the Justice Department or the threat of DOJ action as a cudgel against enemies and a shield for his friends. These should all be documented so that specific remedies, through legislation or executive guidelines, can be proposed and enacted.

In short, you have to know what the abuses are to figure out the fixes needed. The process serves as a means of holding Trump, Cabinet members and Justice Department employees accountable for their conduct and as a to-do list for required reform. If along the way, misconduct by DOJ employees is uncovered, for example, a referral to state bar organizations or to the Justice Department’s internal ethics investigators may be needed. Quite apart from Trump, individuals who instigated or cooperated with improper politicization of the awesome powers of the Justice Department need to be held accountable as we also figure out how to prevent reoccurrences in the future.

This is a mammoth undertaking, because the Trump administration’s breaches of democratic norms were so serious and varied. The incoming attorney general cannot handle this by himself. It is not clear that a special prosecutor is needed. Rather, this seems a task for the Justice Department’s inspector general (perhaps a specific IG just for this function), who will need to be selected, funded and fully supported to determine what happened and what reforms we will need.

Among the most important qualifications for a new attorney general will be an understanding of this endeavor and a determination to see it through. No one should underestimate the role such an effort could play in restoring the integrity of the Justice Department and repairing damage to the rule of law.

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