As pressure mounts on US Attorney General Jeff Sessions to appoint an independent prosecutor to probe the ties between the Russian Federation and the Trump campaign, the question of the moment is whether the Department of Justice (DoJ) can be trusted.
Ethics advisers to both George W Bush and Barack Obama agreed in interviews with IBA Global Insight that the Trump White House and DoJ are off to a bumpy ethical start. ‘This White House better get its act together with respect to ethics issues or there’s going to be a lot of trouble,’ says Republican former Associate White House Counsel Richard Painter.
Above: Podcast - Trump, Sessions and Russia
‘The Trump administration has shown that it's not willing to treat the DoJ as independent,’ declared the Democratic former Associate White House Counsel David Sandler.
Painter echoes the conclusion of more than a hundred Democratic lawmakers that Attorney General Jeff Sessions should resign after misleading Congress as to his contacts with the Russian Federation during the campaign. ‘I do not think his testimony before Congress was candid,’ says Painter. ‘His level of deception may have fallen short of perjury, which is a criminal offence. But it did not meet the standard of candour of an Attorney General when testifying before Congress, and other Attorneys General who have given misleading testimony before Congress have been required to resign... I think Attorney General Sessions should do the same.’
‘‘I do not think [Jeff Sessions’] testimony before Congress was candid…it did not meet the standard of candour of an Attorney General when testifying before Congress
Richard Painter, Former Associate White House Counsel under George W Bush
Both ethics experts are troubled by reports that White House Chief of Staff Reince Priebus asked FBI Director James Comey and his deputy in mid-February to refute accounts of Trump's Russia ties. Sandler and other Obama alumni perceive a pattern of political interference – pointing to two other reported episodes in Trump’s first two months. White House senior adviser Stephen Miller reportedly called a US attorney to guide the defence of Trump's travel ban. And White House Counsel Donald McGahn reportedly asked to see a purported surveillance order relating to the Trump campaign.
These reported contacts appear to defy forty years of executive branch ethics policies, according to a group of Obama White House attorneys who have formed an anti-authoritarian watchdog under the name, ‘United to Protect Democracy'.
‘[I]t is not appropriate for the White House to be contacting lower level people at the Department of Justice to talk about cases and for that not to be done through the White House counsel's office,’ says Sandler. ‘[T]hat is a clear, long-established norm that the Trump administration has not been honouring.’
Such actions are likely to violate ethical norms embraced by every White House and Justice Department post-Watergate, according to a United to Protect Democracy analysis that Sandler helped draft. United to Protect Democracy concluded by calling on Trump’s administration to reaffirm and follow these norms.
In a 27 Jan memo to White House staff, recently leaked, White House Counsel McGahn did caution that contacts with the DoJ about specific cases should generally be restricted to the President, Vice President, the White House Counsel or his designees in discussion with the Attorney General, Deputy Attorney General, Associate Attorney General, or Solicitor General.
‘In order to ensure that DoJ exercises its investigatory and prosecutorial functions free from the fact or appearance of improper political influence,’ McGahn stresses, ‘these rules must be strictly followed.’
Ethics experts, however, remain troubled. First, the reported contacts would violate the Trump White House’s own policy, as they were not confined to senior officials on either side. Second, and perhaps more fundamentally, the reported contacts would violate the longstanding DoJ policy – reaffirmed by George W Bush Attorney General Michael Mukasey – that the White House may contact the DoJ about an open case only when it is constitutionally necessary and appropriate for law enforcement.
‘The White House chief of staff has absolutely no business contacting the FBI or anyone else in the Justice Department about an ongoing criminal investigation; that is never acceptable in any administration,’ says Painter. ‘The White House chief of staff contacting the Department of Justice is an invitation to trouble…. [I]t’s not itself a crime but if it were combined with other efforts to obstruct justice, such as the destruction of documents or the types of things that happened in the Nixon White House, having the White House chief of staff contacting the FBI about an ongoing investigation would be a very, very bad situation. That is unprecedented and not allowed under White House policy.’
Finally, the McGahn memo differs from the memos on which it’s modelled in not barring the White House from meddling in cases or investigations at other law enforcement departments (for instance Homeland Security) or independent agencies (for instance the Securities and Exchange Commission, Federal Election Commission, or Federal Communications Commission). And in contrast to its predecessor policies, McGahn’s does not forbid the White House from interfering in other sorts of agency client matters – for instance a grant making or contract procurement. Whether the Trump administration has adopted these additional policies in other memos is not known.
The ethical norms embraced by the executive after Watergate aim to stop the President from politicising justice, and to reassure the public that the President or Attorney General will not put himself above the law. At the same time, they guard against political vendettas and crony capitalism. A victim of politicised justice, or a competitor who has lost a contract because of favouritism, might have standing to challenge the result under the constitutional principles of equal treatment or due process.
‘If you look at democracy indices that measure authoritarianism,’ says Sandler, ‘this is one of the things they consider: whether there is prosecutorial independence. And whether or not the administration is able to steer contracts to their friends and away from their enemies. I think these are fundamental issues of democracy.’