This is a return to normal, as former federal prosecutor Joyce White Vance told me. It comes after four years of the Justice Department being thoroughly politicized and enlisted to do disgraced former president Donald Trump’s bidding — from the intervention into the sentencing of his crony Roger Stone to the failure to investigate the former president’s attempt to extort Ukraine to smear then-candidate Joe Biden.
Norm Eisen, who served as co-counsel for the House Judiciary Committee during the former president’s first impeachment hearing, tells me: “If there is anything that the Trump years taught us — and they taught us so much — it is that we must have strong barriers to prevent undue White House interference with the Department of Justice and other agencies. These limits build on the Obama-era practices to do just that.”
However, Eisen warns that “what one president can give, another president can take away.” Moreover, the new guidelines do not prevent the president from personally inserting himself into individual prosecutorial decisions, or even require him to inform Congress when he does so. For this reason, Congress should codify safeguards to prevent politicization of enforcement matters (including decisions on investigation, indictment and sentencing), expand the subpoena authority of inspectors general, and increase enforcement of and penalties for ethics violations.
Rachel Homer of the nonpartisan Protect Democracy tells me she approves of the updated policy as a “bulwark against the politicization and corruption of independent justice [that] we saw in the last administration.” Like Eisen, she nevertheless warns that “the administration needs to support legislation that would codify the core aspects of this policy into law that every administration would follow.”
Her group backs the Protecting Our Democracy Act, which includes provisions to enable Congress to enforce subpoenas; transparency in the pardon power; enhancement of the Hatch Act; limits and required documentation of White House contacts with the Justice Department; and protection for inspectors general and whistleblowers.
While the administration is rightly pursuing measures to prevent reoccurrence of Trump-era abuses, it should candidly acknowledge that we do not know everything that went on at the Justice Department during the past four years. Homer and Justice alumnus Kristy Parker argue in favor of a full assessment of the department in a post for Just Security:
It simply cannot be the case that investigating Department attorneys for pursuing politicized criminal indictments or civil enforcement actions, or for making charging or sentencing decisions for political reasons — in clear violation of the Justice Manual — is itself a “politicized” act. To the contrary, turning a blind eye to these possible abuses suggests that career attorneys are mere functionaries who simply “follow orders” from above and thus lack agency over or responsibility for their actions. Such a view is both disrespectful of their actual role and cedes profoundly dangerous power to a future Trump-like president.
Once we know the full extent of whatever potential abuses occurred, Congress and the administration can put in place appropriate safeguards, including training for Justice Department lawyers, requirements for reporting improper political interference, mandatory referral to bar associations for professional sanctions, obligations to report misdeeds to Congress and whistleblower protections. That review could also include a review of the guidelines prohibiting criminal prosecution of the president while in office and a revamp of the special counsel statue.
In sum, the White House’s first step in the post-Trump cleanup is helpful, but it should not be the last. Attorney General Merrick Garland needs to get over his aversion to a comprehensive review of the politicization of his department, and then set in motion reforms to repair the department’s reputation. Wasn’t all that part of his job description? If he wants to follow in the shoes of post-Watergate attorney general Edward H. Levi, widely credited with restoring the department’s integrity, Garland should get on with it.