Sen. Sheldon Whitehouse (D-R.I.) still keeps handy a two-page chart that a staffer drew up a dozen years ago, illustrating traditional limits between how many presidential aides are allowed to discuss investigations with Justice Department officials.
“That was the way it was supposed to be, the top one. Four White House people, three DOJ people,” Whitehouse said.
That tradition began during the Clinton administration and carried into the first years of George W. Bush but, later in Bush’s presidency, the chart grew to include more than 800 officials talking to one another.
“Everybody at the White House looking like Space Invaders, able to talk to all those different people in the Department of Justice,” Whitehouse, a former U.S. attorney, said in a recent interview.
For more than a decade, lines of communication returned to an apparent sense of normalcy, with little signs of White House aides trying to breach protocol with Justice Department staff. But congressional Democrats have grown alarmed by what they consider a large number of inappropriate contacts between the White House and Justice Department, sparking new calls to create a more firm standard of limiting the number of advisers in those two camps who can speak to one another about federal investigations.
The issue received a jolt of national attention when Attorney General William P. Barr testified before the Senate Judiciary Committee in early May, leading Sen. Kamala D. Harris (D-Calif.) to ask whether White House officials had “asked or suggested that you open an investigation” in his brief tenure.
“I’m trying to grapple with the word ‘suggest.’ I mean, there have been discussions of matters out there,” Barr said, at times stammering to find an answer.
Harris asked whether they “suggested” an investigation. “I don’t know. I wouldn’t say suggest,” he replied.
Did they hint at a probe?
“I don’t know,” Barr replied.
So, Harris signed on with Whitehouse and Sen. Richard Blumenthal (D-Conn.), along with Rep. Hakeem Jeffries (D-N.Y.) in the House, on legislation that would try to codify lines of communication between presidential advisers and Justice Department officials, requiring the department to keep logs of all discussions. The department aides would keep track of every White House adviser who spoke to a Justice Department official about which investigations, then turn over those logs to the inspector general and Congress every six months.
It’s a repeat bill for Whitehouse, who introduced the legislation in 2007 when oversight of the Bush Justice Department faced several political scandals that revealed a much more wide-open world of discussions about investigations. Democrats and some Republicans questioned whether Bush’s political advisers, including Karl Rove, forced the firings of U.S. attorneys who did not pursue voter fraud cases against liberal organizations.
Whitehouse’s legislation passed on a 14-to-2 vote in committee, with the support of two senior Republicans still on the panel, Sens. Charles E. Grassley (Iowa) and John Cornyn (Tex.). The legislation went away, Whitehouse recalled, because Bush’s final attorney general, Michael Mukasey, agreed to return to the standard of limited talks about investigations.
Whitehouse says that standard seemed to be applied through the Obama administration and even in the early days of Jeff Sessions’s tenure as attorney general. By late 2017, Sessions appointed Matthew G. Whitaker as his chief of staff, a move that eventually led Trump to insert Whitaker as acting attorney general for several months last winter after he forced Sessions to resign.
“Everything having to do with the Whitaker era was very stinky and weird, but he appeared to be a walking violation of this rule. So, that’s why I decided to re-up the bill,” Whitehouse said.
Senate aides cited several instances in which Whitaker, as chief of staff, is alleged to have held discussions with Trump and John Kelly, then the White House chief of staff, about how to pressure Justice Department officials into launching a special counsel investigation into political adversaries.
Another allegation focused on reports that Trump asked Whitaker, as acting attorney general, to appoint a certain prosecutor to handle the investigation into his former personal lawyer’s payoffs to the president’s alleged mistresses.
Whitaker has denied any wrongdoing in his discussions with Trump or other presidential advisers.
And Democrats have stumbled into an area that seems to violate the spirit of the separation of the West Wing from the main Justice Department. In a recent interview with NPR, touting her 2020 presidential credentials, Harris said that as president, her Justice Department “would have no choice” but to prosecute Trump on obstruction-of-justice charges related to the special counsel’s findings in the investigation of Russian interference in 2016.
Other presidential contenders have made similar comments, seeming to prejudge the case, while others have been careful to say the matter would be left to top prosecutors.
Democrats have long complained that Trump violates norms in private conversations with aides who work for him, but also in his tweets.
However, the president’s direct public actions, on social media or to the media, are actually of less concern to legal experts because those comments are out in the open and the accused has an ability to defend themselves before judges and cite presidential political pressure.
“There is something grotesque to a president of the United States tweeting out his desire to see people prosecuted,” Whitehouse said, suggesting that “indirect pressure” from White House officials is more dangerous to making sure justice is meted out on the law.
“Sycophantic Department of Justice officials tilting investigative and prosecutive decisions because they think they’ll get a pat on the head or an extra invitation to a White House dinner,” he said, explaining the worst-case scenario, “ . . . is a very dangerous characteristic in an attorney general.”
Republicans have not signed on to the Democratic legislation, with hopes of action in the Senate looking slim given the GOP majority there. But Jeffries, part of the House’s leadership team, is a member of the House Judiciary Committee and could get the bill moving on that side of the Capitol.