Protecting Independent Law Enforcement
Independent law enforcement is a hallmark of American democracy.
The President has claimed that he has an “absolute right to do what I want to do with the Justice Department.” This view is anathema to our democratic system of government and shows a profound misunderstanding of our Constitution. The promise that every American will be treated equally under the law and that none is above the law is a bedrock principle of American democracy. Law enforcement free from political influence — real or perceived — underpins all of our other freedoms. In a functioning democracy, those in office do not wield the power of the state to benefit political allies and punish political opponents. The government should not be in the business of picking winners and losers for enforcement based on popularity or political pressure.
For 40 years, Administrations of both parties have maintained policies to protect this bipartisan norm.
While the current White House has adopted a limited version of this policy, it continues to violate its own policy and systematically destruct the broader established norms limiting White House involvement in law enforcement matters involving specific parties. We have witnessed repeated requests by the President to prosecute his former political opponent, attempts to thwart Special Counsel Robert Mueller’s investigation regarding Russian interference in the 2016 election, and the appearance of political interference in specific antitrust matters to benefit favored companies and harm those that are disfavored.
White House interventions in law enforcement matters involving specific people implicate some of our most fundamental constitutional principles. As we explain in our white paper, when the White House intervenes in how the law is enforced to benefit allies or target its opponents, it violates the President’s constitutional obligation to ensure that the laws are faithfully executed, as well as core constitutional principles of due process, equal treatment under the law, and the First Amendment right to participate in the political process.
We’re fighting to protect independent law enforcement.
Among our actions to fight back, we have worked to: disclose and publicize the policies that our government has historically observed; enforce those norms at DOJ; start investigations into particular instances of potential improper communications between DOJ and the White House; and educate Congress to help it conduct oversight and gain commitments from nominees through its advice and consent power.
It is critical for a functioning democracy that it not appear as though politics plays any part in DOJ’s investigative and enforcement operations, for enemy or friend alike. Authoritarians regularly prosecute and jail their opponents, using criminal prosecution as a tool for political vengeance, and offer favors for political allegiance. Backsliding democratic countries have witnessed such threats, and offer a warning sign for our own democracy. That is why we will continue to advocate to make sure that our law enforcement agencies maintain their independence from the President and remain accountable to the Constitution.
Protect Democracy is working to protect and enforce the norms preventing political pressure from influencing the impartial administration of justice.
To do this, we organize signed statements from former officials, provide information to Congress, file briefs in active litigation, and write letters to the Administration.
NEW: Letter from National Federation of Federal Employees, Metal Trades Department at AFL-CIO, and Protect Democracy urging Judiciary Committees to Investigate Potential White House Influence on Possible Prosecution of Former FBI Deputy Director Andrew McCabe (September 13, 2019)
- Statement by 1,000+ Former Federal Prosecutors (May 2019)
- Statement by DOJ Alumni: Rosenstein, Mueller, and the Rule of Law (Apr. 13, 2018).
- Statement by DOJ Alumni: The Appointment of Whitaker (Dec. 4, 2018).
- Statement to the Senate Judiciary Committee: Key Requirements for the New Attorney General (Dec. 14, 2018).
- Memo: White House Communications with the DOJ and FBI (Mar. 8, 2017).
- Memo: Does Executive Privilege Apply to Comey Testimony or Memos? (May 23, 2017).
- White Paper: No ‘Absolute Right’ to Control DOJ: Constitutional Limits on White House Interference with Law Enforcement Matters. (Mar. 9, 2018).
- White Paper: Lessons from Previous Independent Investigations and Related Congressional Oversight (Dec. 2018)
- White Paper: If Conspiracy — by Whatever Name— Occurred, Congress Must Ensure Accountability (Dec. 2018)
- White Paper: Congress’s Role in Assessing Any Findings of Presidential Obstruction-of-Justice and Abuse of Power and Ensuring Accountability (Dec. 2018)
- Explainer: Constitutional Principles Supporting Independent Law Enforcement (July 6, 2018).
- Explainer: The President Cannot Fire a Law Enforcement Official to Intervene in an Investigation (July 6, 2018).
- Explainer: The President Cannot Offer Pardons to Interfere in an Investigation (July 6, 2018).
- Explainer: S. 2644 – the Special Counsel Independence and Integrity Act – Is Constitutional (July 6, 2018).
- Amicus brief filed in United States v. AT&T (Mar. 9, 2018).
- Amicus brief filed in United States v. Saipov (Sept. 24, 2018).
- FOIA Letter to DOJ requesting records concerning any White House involvement in the investigation and potential prosecution of former FBI Deputy Director Andrew McCabe (September 3, 2019).
- Letter to DOJ Inspector General Horowitz regarding the proposed merger between Anthem and Cigna (Mar. 23, 2017).
- Letter to WH Counsel McGahn regarding existing policies limiting communications between the WH and DOJ (Apr. 18, 2017).
- Letter to DOJ Inspector General Horowitz regarding failures to enforce contacts policies (June 12, 2017).
- Letter to DOJ Office of Professional Responsibility regarding WH pressure to open investigations into the President’s political opponents (Jan. 4, 2018).
- Ian Bassin and Justin Florence, Trump Would Have Been Charged with Obstruction Were He Not President, Hundreds of Former Federal Prosecutors Assert, Washington Post (May 6, 2019).
- Ian Bassin and Justin Florence, If William Barr Is Trump’s Lawyer, Then Who Is Representing America?, L.A. Times (May 2, 2019).
- Ben Berwick and Ariela Rosenberg, Trump’s Politicization of Law Enforcement Is Authoritarian in Nature, Take Care (March 9, 2018).
- Justin Florence and Ben Berwick, Constitutional Limits on White House Interference in Specific Enforcement Matters, Lawfare (March 9, 2018).
- Allison Murphy, Ten Questions for a New FBI Director, Take Care (June 6, 2017).
- Justin Florence, On the Importance of Limiting White House-DOJ Contacts: It’s Not Just About Obstruction, Lawfare (May 22, 2017).
- Jennifer Rubin, No, Trump cannot do whatever he wants with the Justice Department, The Washington Post (March 11, 2018).
- Drew FitzGerald, Ex-Officials Ask Judge to Review U.S. Moves in AT&T-Time Warner Suit, The Wall Street Journal (March 9, 2018).
- Harper Neidig, Former DOJ officials raise concerns about possible Trump interference in AT&T lawsuit, The Hill (March 9, 2018).
- Heidi Przybyla and Pete Williams, Former DOJ officials raise Trump AT&T interference concerns, NBC News (March 9, 2018).
- David McCabe, Ex-DOJ Officials worry about political motives in AT&T merger suit, Axios (March 9, 2018).
- Allegra Kirkland, Ex-DOJ Officials Warn of Potential Trump Meddling to Punish CNN in AT&T Case, Talking Points Memo (March 9, 2018).
- Arnessa Garrett, Former DOJ officials urge inquiry into whether Trump meddled to block AT&T-Time Warner merger, Dallas News (March 9, 2018).
- Ted Johnson, Former DOJ Officials Ask for Inquiry Into Trump Interference in AT&T-Time Warner Case, Variety (March 9, 2018).
- Lawsuit seeks White House, Justice Dept records on Fox-Disney Deal, Reuters (March 5, 2018).
- Humberto Sanchez, DOJ tells Cortez Masto that Obama-era policy to minimize White House contact is still in place, Nevada Independent (March 2, 2018).
- Allegra Kirkland, Aping His Boss, Scaramucci Tries To Use DOJ Like A Personal Enforcement Arm, Talking Points Memo (July 28, 2017).
- Graham Lanktree, White House Leaks: Anthony Scaramucci Would Break Rules If He Spoke to FBI and Sessions About Investigations, Newsweek (July 28, 2017).
- Edward-Isaac Dovere, Liberal Groups: Delay FBI director vote until Trump promises to keep special counsel, Politico (July 25, 2017).
The Trump administration’s persistent attacks on the independence of law enforcement present a serious threat to our democracy. The following is a catalogue of interference with the Department of Justice (DOJ) by President Trump and others in his administration, coded by violation type. We will update this timeline regularly.
The following typology categorizes the ways in which President Trump and the Trump White House have undermined the long-standing and bipartisan belief that the laws of the United States should be administered and enforced in an impartial manner and, accordingly, that politics should not play any part — or even appear to play a part — in the Department of Justice’s investigative and enforcement operations involving specific parties. Political interference in law enforcement matters involving specific parties is unconstitutional and undermines the rule of law.
|Putting the President and Allies Above the Law
|Presidential interventions in single party matters risk partisan favoritism and arbitrary, unequal justice — both of which run contrary to the fundamental American belief that all Americans are entitled to equal justice under the law. When the President intervenes in DOJ matters involving himself, his campaign, his allies, and/or his friends, he abuses the power of his office in order to protect and promote his own interests, not those of the country. The norms around interactions between the President and DOJ exist to prevent the exercise of unaccountable influence targeted at specific matters that may have personal or political interest to the President, or those simply in his good graces. Interventions of this sort break down the necessary division between the White House and DOJ and undermine DOJ independence.
Simply put, in a democracy the President does not get to pick winners and losers — rather, the law must be enforced equally as to all individuals, regardless of their relationship with the President. Presidential interventions in how the law is enforced against a specific party — whether to the benefit or the detriment of that party — will often violate the President’s constitutional obligation to ensure that the laws are faithfully executed, as well as core constitutional principles of due process, equal treatment under the law, and the First Amendment right to participate in the political process. See our White Paper for more information on the constitutionality of these actions.
|Trump’s interference in Special Counsel Robert Mueller’s investigation; Firing former FBI Director James Comey; Pardoning Former Maricopa County Sheriff Joe Arpaio|
|President Attacking Political Opponents and Dissenters
|When the President threatens to use his power to prosecute other politicians, he undermines the rule of law, weakens democracy, and violates the fundamental rights of those who wish to participate in the political process. Even the threat of prosecution constitutes a systematic threat to U.S. democracy, as authoritarians regularly prosecute and jail their opponents, using criminal prosecution as a tool for political vengeance. Backsliding democratic countries have witnessed such threats, and offer a warning sign for our own democracy where President Trump unabashedly attacks and threatens his political opponents with prosecution.||Threatening Hillary Clinton and former aide Huma Abedin with prosecution; Attempting to block AT&T-Time-Warner merger|
|President Demanding Loyalty from DOJ Officials
|The Department of Justice’s mission is to “enforce the law and defend the interests of the United States according to the law; . . . to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.” The effectiveness of DOJ rests on the public’s confidence — and the reality — that DOJ is above ideology and partisanship in its enforcement of the law.
By law, all DOJ officials swear fealty to the constitution in the following oath of office: “I . . . do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” 5 U.S.C. § 3331. President Trump’s loyalty demands from various DOJ officials undermines the Department’s impartiality, independence, and this very oath. See here for a Politico article with more information on Trump’s loyalty demands.
|Loyalty demands of Former FBI Director James Comey, Former Deputy Director of the FBI Andrew McCabe, etc; US Attorney interviews; Pressure on Attorney General Sessions|
|Improper White House Staff Contacts with DOJ
|For decades, to prevent even the appearance of political meddling in federal law enforcement, Republican and Democratic administrations alike have had written policies governing White House contacts with agencies and offices within the executive branch that have investigatory and enforcement responsibilities. To ensure the impartial application of the laws, these policies have extended to White House contacts with any executive branch agency or office regarding investigations, enforcement actions, regulatory decisions, grants and contracts involving specific parties. It has been consistent policy that communications between the White House and DOJ about any ongoing case, investigation, or adjudicative matter should take place only when necessary for the discharge of the President’s constitutional duties and appropriate from a law enforcement perspective. By channeling all communications through a small number of high-level officials, and especially through the White House Counsel’s Office, this policy has helped ensure that the officials most familiar with this policy and the reasons underlying it are the only ones to engage in these communications in order to ensure proper compliance.
Although President Trump’s White House has issued a memorandum that theoretically limits White House communications with the Department of Justice, the White House has routinely violated that policy.
See our agency contacts memo for more information.
|Former White House Chief of Staff Reince Priebus contacts the FBI re Russia; Former White House Communications Director Anthony Scaramucci threatening to call FBI|
|Undermining DOJ Integrity and Impartiality
|The President and his surrogates have questioned DOJ’s integrity and impartiality in a number of cases. The effectiveness of DOJ rests on the public’s confidence — and the reality — that DOJ is above ideology and partisanship in its enforcement of the law. These attacks serve to undermine DOJ’s credibility in the public’s mind and paint law enforcement as biased and partial.||Calling Attorney General Sessions “weak”; Suggesting DOJ is wiretapping Trump; Suggesting DOJ is protecting Hillary Clinton|
|Other Improper White House Involvement in DOJ Enforcement
|This category includes other various instances of inappropriate White House involvement in DOJ matters that serve to undermine the impartiality and independence of DOJ. All of the examples in this category upend established norms surrounding contact between the White House and DOJ. They very clearly cross the line of political meddling in federal law enforcement.||Trump suggesting the death penalty for NY terror attacker; Threatening to directly supervise the Department of Justice; Directly contacting U.S. Attorney Preet Bharara|