Published by The Lawfare Institute
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Last week’s New York Times story detailing Benjamin Wittes’s conversations with then-FBI Director James Comey and Wittes’s own Lawfare post describe in some detail Director Comey’s concerns about inappropriate White House contacts with the Department of Justice. This is a profoundly important issue and one that goes beyond just whether the President interfered with or obstructed any particular investigation. The policies limiting White House-DOJ contacts—which until recently were fairly obscure—play a key role in protecting our constitutional democracy. While this is implicit in the reporting on the Trump-Comey interactions, it’s worth pausing a bit on why.
Earlier this year, I was part of a group of former White House and Justice Department lawyers who launched a new organization—United to Protect Democracy—with a mission of defending our democracy against a slide toward modern authoritarianism. As attorneys who had worked in government, we had a strong sense of the rules, laws, and norms that protect the integrity of our democracy—and we worried about how they could be violated, ignored, or abused in ways that severely threatened the rule of law in our country. (Full disclosure: Protect Democracy is also representing Wittes in an unrelated FOIA matter, which has not yet resulted in litigation.)
The first thing our organization did surprised some, given our mission. We did not file a constitutional lawsuit or launch an investigation of some particular wrongdoing. Instead, we issued a detailed memorandum, entitled “White House Communications With the DOJ and FBI,” focused on the history and significance of policies governing such communications. In it, we noted that “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.”
We then described the 40-year history of policies that carefully limit contacts between the White House and DOJ. As we explained: “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.”
These policies—and the White House and DOJ each have historically maintained their own versions—restrict both the substance of what communications may occur between the White House and DOJ and the people who may have those communications. Thus, for example, under the 2009 Holder memo (we FOIA’d DOJ for the policy currently in place and DOJ confirmed last week that this 2009 memo remains in force), “Initial communications between the Department and the White House concerning pending or contemplated criminal investigations or cases will involve only the Attorney General or the Deputy Attorney General, from the side of the Department, and the Counsel to the President, the Principal Deputy Counsel to the President, the President or the Vice President, from the side of the White House.” That is because, as the memo explains, “The Assistant Attorneys General, the United States Attorneys and the heads of the investigative agencies in the Department have the primary responsibility to initiate and supervise investigations and cases. These officials, like their superiors and subordinates, must be insulated from influences that should not affect decisions in particular criminal or civil cases.”
In our time in government, we had devoted substantial time to advising officials on compliance with these policies, and we believed the policies played a key role in protecting the integrity of the law. Indeed, the U.S. State Department has cited politicization of the prosecutorial apparatus as a basis for rating a foreign country as having an “authoritarian” government.
Our memo laid out our assessment that publicly reported communications between Trump White House officials and the Justice Department as early as the first 50 days of the administration violated these traditional policies. We called for the White House to acknowledge whether it had such a policy in place and to make it public—which it eventually did in response to press inquiries prompted by our efforts. We also called on the White House Counsel to ensure that this policy was more than just a piece of paper, by making sure that everyone who worked in the White House understood these essential rules.
Last week’s revelations about President Trump’s interactions with Director Comey highlight the significance of these policies—and what happens without adequate training on and respect for them. As Wittes describes, Director Comey was highly attuned to their importance. Wittes notes that “Comey was preoccupied throughout this period with the need to protect the FBI from these inquiries on investigative matters from the White House.” As we suspected when we requested the White House acknowledge whether it had a policy in place, and as Wittes explains: “Comey understood Trump’s people as having neither knowledge of nor respect for the independence of the law enforcement function. And he saw it as an ongoing task on his part to protect the rest of the Bureau from improper contacts and interferences from a group of people he did not regard as honorable.”
So why is protecting against improper contacts between the White House and DOJ/FBI so important? Let me offer four reasons, starting with narrower concerns and going to more fundamental elements of our constitutional democracy.
First, a quite specific reason is that criminal laws prohibit interference in specific investigations. There has been much discussion lately of the contours of the federal obstruction of justice statute, 18 U.S.C. § 1505, a felony offense prohibiting certain “communication[s]” that “influence, obstruct, or impede or endeavor to influence, obstruct, or impede the due and proper administration of the law.” Contacts by the President or White House to the DOJ or FBI made with the intent to influence an investigation can not only give rise to criminal liability to the person who interferes, they can undermine the potential prosecution by allowing the defendant to raise claims of improper prosecution.
Second, restricting these contacts avoids the type of systemic corruption that is endemic in authoritarian governments. As Matt Yglesias described in a prescient essay earlier this year, when the political elite involve themselves in specific enforcement and regulatory actions, “Those who support the regime will receive favorable treatment from regulators, and those who oppose it will not.” As he notes, this type of interference can cut both ways. A call from a White House official to a federal prosecutor can ask that DOJ go easy on a friend of the administration who has worked for or donated to a campaign or who is a partner of the President’s business interests. Or, that same kind of call could suggest that it would be helpful to look into an enforcement action to brush back a journalist who has written a critical story of the President or a competitor to a business interest. As Yglesias writes, “This is how Vladimir Putin governs Russia, and how the Mubarak/Sisi regime rules Egypt.” It is not how America should function.
Third, limiting these contacts furthers several constitutional principles. The Constitution prohibits “bills of attainder,” and while that prohibition focuses on Congress, it stands for the more overarching point that specific people or groups should not be singled out for punishment. In addition, the Fifth Amendment’s Due Process Clause demands that our government follow standardized procedures before denying people of their liberty or property. The Equal Protection Clause requires that all people be treated equally under the laws. And finally, Article II’s command that the President “take care that the laws be faithfully executed” suggests a good faith requirement on the executive power. Each of these constitutional principles, in its own way, calls for the fair and impartial exercise of the Executive’s law enforcement authority. A White House that uses its enforcement power for political purposes—targeting specific individuals, ignoring standard law enforcement procedures, or treating similarly situated people unequally—fails to live up to these constitutional principles.
And this leads to the fourth and most fundamental point. The basic notion of the rule of law, and public confidence in the rule of law, requires its even-handed application. The DOJ and White House memos on contacts reference this concern. The DOJ memo currently in place begins, “The rule of law depends upon the evenhanded administration of Justice,” and continues that “in order to promote the rule of law” it is establishing guidelines to govern all communications between representatives of the Department, on the one hand, and representatives of the White House and Congress, on the other.” As we wrote when we asked the DOJ Inspector General to investigate whether the White House was violating these policies with respect to a specific enforcement matter, “The American people depend on the Department to enforce our federal laws equally as to all parties, regardless of those parties’ size, influence, or political connections.”
It should therefore be no surprise that the two most serious political scandals of the modern presidency—Watergate and now the current situation engulfing this White House—both revolve around issues central to these contacts policies. So when Wittes notes that Comey was preoccupied with protecting DOJ and the FBI from political inquiries, and with training the President about the importance of such restrictions, this was no mere obsession with some formalistic technical policy. Instead, it was about protecting the fundamental tenets of our constitutional democracy.