PODA Garners Renewed Attention Following Biden’s White House-DOJ Separation Policy
- July 26, 2021
David Montgomery did a deep-dive on Merrick Garland’s work to restore the Department of Justice in the Washington Post, writing:
Adam Schiff, chairman of the House Permanent Select Committee on Intelligence, is planning this summer to reintroduce the Protecting Our Democracy Act, which he co-sponsored in the fall. The original version of the bill would require, among other measures, the attorney general to keep a log of communications with the White House, and the inspector general to report to Congress any improper political interference.
Schiff told me he has received early “pushback” against elements of the bill from the administration and didn’t know whether Biden and Garland would support the package. “The administration and the leadership at the Justice Department need to recognize that we are not in the same circumstances as a new administration usually finds itself,” he says. “This administration finds itself taking over after one of the most destructive, institution-breaking regimes we’ve had in this country. And I think that means that both the administration generally, and the [Justice] Department in particular, are going to have to err on the side of transparency and reform.”
Jen Rubin at the Washington Post mentioned PODA in an article praising the new White House and Department of Justice contacts policies, but urges Congress to codify safeguards:
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.
Protect Democracy’s Rachel Homer and Kristy Parker, both DOJ alums, wrote in Just Security about PODA as a key part of the need to reform DOJ:
Importantly, the Department should also make the policy memorandum public and take that opportunity to connect this public policy statement to an effort to restore integrity to the DOJ. Having a public, clear contacts policy not only establishes an important precedent for the Department going forward, it offers a prophylaxis for the Biden administration against allegations of improper political interference. It also educates current DOJ and White House staff on appropriate and inappropriate interactions. And because any policy is only as strong as its enforcement mechanisms, and can be rescinded by any future administration, the Biden administration can help ensure that future administrations likewise play fair by endorsing the Protecting Our Democracy Act, which would codify in law transparency mechanisms relating to White House-agency contacts (disclosure: our organization, Protect Democracy, has advocated for and continues to endorse this package of legislative reforms).
Rep. Swalwell discussed PODA and the need to codify norms, in this case emoluments, on Joy Reid:
SWALWELL: Absolutely. I mean, who in the inner circle has not been indicted at this point? But the greater issue is not that this is getting closer to Donald Trump, it`s that Donald Trump allowed foreign actors, whether it was the Russians or, here, the Emiratis to get too close to our foreign policy.
Adam Schiff has the solution with the Protecting Our Democracy Act. It would clean up the emoluments clause, many of the reporting that would be required for interacting with foreign actors, as was done in this case.
And we must learn from what Donald Trump exposed as far as vulnerabilities in our democracy and not just accept that this can never happen again. It will happen again if we do nothing.
Finally, Chris Truax wrote about the urgency of “autocrat-proof[ing]” the presidency in USA Today and flagged PODA as a “critical piece of democratic and constitutional infrastructure”:
This is just one of the critical pieces of democratic and constitutional infrastructure that requires attention. For example, Rep. Adam Schiff, D-Calif., plans to reintroduce the Protecting Our Democracy Act, which strengthens some of the guardrails of democracy damaged during the Trump presidency. Among other things, it would better protect inspectors general, make it easier for Congress to enforce subpoenas, limit presidential emergency declarations and reform the Vacancies Act.