Executive Branch

The Unintended Consequences of Enshrining Norms in Law

Bob Bauer
Tuesday, October 16, 2018, 11:01 AM

Donald Trump’s disregard for governing norms is by now well established. It is partly but not entirely explained by his impulsiveness and lack of experience with government. A norm is, after all, a constraint on action: Norms are “guardrails” to support the lawful and ethical operation of the executive branch. And Trump has no patience for constraints.

President Donald Trump signs a bill into law on Oct. 10, 2018. (Photo: Flickr/The White House)

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Donald Trump’s disregard for governing norms is by now well established. It is partly but not entirely explained by his impulsiveness and lack of experience with government. A norm is, after all, a constraint on action: Norms are “guardrails” to support the lawful and ethical operation of the executive branch. And Trump has no patience for constraints.

Experienced and thoughtful observers of government have increasingly come to conclude that new laws are needed where the norms no longer do the work. As part of this effort, New York University’s Brennan Center convened a Task Force on the Rule of Law and Democracy, co-chaired by former U.S. attorney for the Southern District of New York Preet Bharara and former New Jersey Governor Christine Todd Whitman, to develop a package of new legal requirements. While the impetus for the task force’s work is clearly Trump’s systematic norm-busting, the Brennan Center suggests that key norms have been in peril over the course of a number of administrations. Those norms, the task force argues, were already weakened by the time that Trump came along and began furiously hacking away at them.

The task force’s proposed reforms aim to bolster norms under attack in the three specific areas: 1) ethics standards for high government officials; 2) the independence of federal law enforcement; and 3) defenses against the abuse of the pardon power.

The task force recommends that the Office of Government Ethics and the inspectors general be empowered to more aggressively police presidential conflicts of interest or threats to independent law enforcement. It also urges that Congress take action to define the “emoluments” a president is prohibited from accepting from a foreign state, withhold by statute its consent to specific categories of such benefits, and establish a scheme for criminal and civil enforcement. This proposed package of reforms would include a legal requirement that presidents publicly disclose their personal and business tax returns.

Other suggestions make use of the softer power of transparency. For example, the White House would be required to publicly identify staff authorized to have contacts with the Justice Department, maintain a log of contacts with the department about specific cases and submit a related report to Congress. The president would also be required to supply Congress with written reasons for pardons granted to individuals with whom he has specific business, political and personal relationships. One could call these a “make them think twice” legal commands. The idea seems to be that if presidents have account for these choices, they will make them with greater care.

The Brennan Center work deserves attention: The reasoning is tight and the recommendations sensible and carefully drawn. But a program of bolstering norms with fresh laws may have unanticipated long-range institutional effects. Just as presidents respond in various ways to norms—usually adapting to them, sometimes circumventing them, or in Trump’s case, trampling them underfoot—so, too, do they react to changes in the legal structure with direct political and governing implications. While by no means a reason to oppose reforms like the Brennan Center’s, this bite-back effect needs to be taken into account when considering full efficacy of measures like these.

Consider the independence of law enforcement. The unhappy experience with the independent counsel statute, which eventually fell out of favor with both Democrats and Republicans, showed how law crafted with the most honorable of intentions could become a tool for carrying out protracted partisan warfare. The story of millions of dollars spent on paralyzing investigations is often told and does not bear repetition. Presidents could be expected to respond—and did— by appointing senior Justice Department officials who could entrusted to hold out against public and political pressure and not too readily succumb to demands for an application to the designated court for the appointment of an independent counsel. Few presidents since Bill Clinton have been prepared to take a flyer on as an attorney general on the Janet Reno model—that is, someone who they did not know personally and who might lack finely tuned political antennae or dependable loyalties.

This screening for personal loyalty or political reliability could well extend throughout the ranks of sensitive senior executive branch positions. It has certainly happened before It was only a few years years ago, in George W. Bush’s presidency, that a scandal developed over the firings of United States attorneys deemed insufficiently dependable in setting partisan law enforcement priorities dictated by partisan interests. The 1967 anti-nepotism statute might avoid a repetition of President Kennedy’s nomination of his brother to the post of attorney general, but it attacks only the most obvious cases of executive self-protectiveness: It applies to relatives, but not to those political allies who are often often, if uncharitably, referred to as “cronies.”

With the independent counsel statute now a dead letter, the threat environment for presidents has changed, but the political epidemiology of scandal has not. Allegations of law-breaking and demands for investigations remain powerful weapons in the struggle between political parties. Officeholder corruption is a staple of media coverage and investigative reporting. The fresh legal commands proposed by the Brennan Center to bolster fading norms would expand the range of these risks for the executive.

To toughen the defenses against the corruption or politicization of law enforcement, for example, the Brennan Center would strengthen the Office of Government Ethics’s (OGE) authorities and independence. The office would have the power to bring civil enforcement actions against the president and senior executive branch officials, and the inspectors general would have similarly expanded powers to investigate claims of high-level interference in law enforcement. The president’s authority to dismiss a special counsel, meanwhile, would be limited to “good cause” and subject to judicial review. The objective would be to bring pressure from these various directions to bear in the restoration of the norm and strengthen Congress’s hand in the conduct of oversight and investigations.

The inevitable if regrettable result is a chief executive who will devote careful attention to appointments to limit his or her legal or political exposure in operation of this norm-enforcement machinery. After all, the best way to mitigate the risks of a special counsel, and to overcome the limits of removing one, is to choose an attorney general who is highly unlikely to appoint one in the first place.

Here is where an altogether different set of norms, binding on the Congress in the advice and consent process, comes into play. Congress normally scrutinizes a president’s nominations to judge core qualifications and personal fitness—but except for clear questions on those measures, it deems presidents entitled to their preferences for high-level appointments. This presumption may apply in most cases. For the Brennan Center’s and other similar proposals to work, Congress would have to devote heightened attention to those appointments most critical to the defense of the norm of independence.

So if Trump’s behavior has intensified focus on the enforcement of norms in the executive branch, the norms governing the relationship of Congress to the executive also require reconsideration and adjustment. In his now-famous screed against the Democratic side of the aisle in the hearing on the Supreme Court nomination of Brett Kavanaugh, Sen. Lindsey Graham called attention to his votes in favor of both President Obama’s nominees to the Supreme Court. Graham was insisting on a norm of congressional deference to the executive. However long that norm may have retained its force, it is no longer sustainable—indeed, it barely makes any sense—in a politics that features a deeply divided electorate and a powerful court whose members are appointed for life. Similarly, in the wake of Trump’s attacks on his attorney general, his deputy attorney general, and the FBI, the norm that affords a president the same leeway for appointments to the Justice Department or the bureau that he or she might enjoy for the choice of commerce secretaries has become hardly credible.

It is difficult to judge another, broader question of the point at which norms have lost ground because of the nature of the institution they serve. In a presidency ceded vast powers, norms that operate to limit presidential discretion will meet resistance. Erosion is inevitable. Presidents will strain against impediments to their freedom of action, even when not looking to insulate themselves from the consequences of personal wrongdoing. It is unlikely that they will yield control over any part of the vast apparatus of the federal bureaucracy at the expense of achieving policy objectives, answering to public demands for action or tightly managing public communications. It is especially implausible that, on matters they care about, they will give much ground to the likes of norms—which, as the Brennan Center Task Force notes, are “informal” and “mostly unspoken” expectations of presidential behavior.

In this respect, norms, such as those that protect independent law enforcement, hang by a thread. It is telling that these norms can no longer do the work without legal reform: The move from informal practice and expectation to the command of law is as much an acknowledgement that the norms have collapsed as it is a bid to somehow reinvigorate them. As Gene Healy has written in his book “The Cult of the Presidency,” the president is now preposterously seen as “chief legislator, “manager of prosperity,” “protector of peace,” and the “tribune” as well as “voice” of the people—and more. A leader operating under these expectations—and with the high self-regard to match them—will likely have minimal interest in norms requiring the restrained exercise of power.

Legal reforms are a stopgap response only to this problem—but they are certainly useful, and the Brennan program constructively lays out one path. Presidents, even ones to come after the incorrigibly feckless Donald Trump, will fight back. It is up to Congress to establish norms of its own to help enforce meaningful limits on executive abuses of power and redress distortions in the constitutional design.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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