What follows are summaries of the key points of the reform proposals for each chapter. The details matter, however, and page references for the full discussion of these proposals are noted in brackets.
Chapter Two: Foreign State Influence
Congress should require campaigns to report to the FBI any contacts from foreign states offering campaign support or assistance. The Justice Department should have enforcement responsibility for reportable foreign contacts and assistance, and the authority to issue advisory opinions to campaigns seeking guidance on the application of the reforms to specific factual circumstances.
Congress also should specifically prohibit mutual aid agreements between presidential campaigns and foreign governments. It should expand the scope of 22 U.S.C. § 219, which now prohibits “public officials” from entering into reportable “agency” relationships with foreign nationals. The amended Section 219 would clearly define presidents as among the public officials who are subject to the statute, and the prohibition would be extended to agreements and offers for assistance between candidates and campaigns and foreign actors, such as foreign states, to collaborate in their mutual interest to influence an election.
Finally, Congress should amend the Federal Election Campaign Act to clarify that a prohibited foreign national contribution to a campaign includes services, materials, or information, such as opposition research, that may not have established market value but that a campaign deems useful. This prohibition should extend to any campaign’s solicitation of such a prohibited foreign national contribution.
Chapter Three: Financial Conflicts of Interest
Congress should bar the president from any active or supervisory role in the oversight of any business, including any formal or informal role. It should also require the president to certify annually, subject to criminal penalties, that he or she has complied with this restriction.
Congress should require the president to account regularly and transparently for his income, holdings, and management of assets and investments. A president should not be required to divest entirely, but to ensure full public transparency, he should be prohibited from establishing a “blind trust.” Congress should further require the businesses in which the president has an interest to report publicly those interests, including the names of persons with interests in the firm or other entity, and the value of assets and liabilities.
Congress should prohibit the president from declining his or her statutory salary and thereby relying for his or her living expenses on income from private business income or investments. The president should be further prohibited from taking deductions on the donation of the salary to charity or to the federal government to underwrite official functions.
Congress should require reporting to Congress and the Office of Government Ethics of the president’s interests in, and income reasonably anticipated or received from, foreign state investment vehicles or foreign state–controlled businesses. These disclosures would be available to the public. A president-elect would be required to file the first report within thirty days of the date of the election. Should Congress fail within sixty days thereafter to provide affirmative consent, the statute would require the president-elect (or newly sworn president) to sell off the interest. All subsequent reporting requirements would fall on the businesses in which the president held an interest, and Congress would also have to act within sixty days to consent to any reported foreign state income or interests. Absent congressional consent, the business would have to sell off the interest and pay the proceeds to the U.S. Treasury.
The Government Accountability Office (GAO) should conduct and submit to Congress annual audits of the president’s compliance with the presidential conflicts of interest rules. The GAO would review the president’s annual certifications that he or she did not engage on a consultative or advisory basis with businesses in which he or she had a financial interest, and the office would audit reports filed by the businesses in which the president holds an interest. Congress would use the annual audits to determine whether additional oversight is required and as necessary would refer evidence of noncompliance to the Justice Department.
Chapter Four: Tax Disclosure
Congress should amend the Ethics in Government Act to ensure public disclosure of presidents’ (and vice presidents’) and presidential (and vice presidential) candidates’ tax returns. The public reporting requirement would apply to every president’s and vice president’s returns for each year in office, to all major-party nominees, and to other presidential candidates who qualify on enough ballots to win a majority of electoral votes. This requirement would also extend to any of the president’s or vice president’s family members who hold senior executive branch positions.
The Office of Government Ethics should enforce this requirement, and the law should provide that if the president or vice president fails to meet the filing requirement, Congress may direct the Secretary of the Treasury to produce the tax returns and authorize judicial enforcement in the event of the secretary’s failure to comply. Congress should also require the public release of the audits of the president’s and vice president’s returns that the IRS performs annually pursuant to long-standing IRS policy.
Chapter Five: The Press
Congress should amend the Inspector General Act to ensure that the federal government may not devote its investigatory and related resources to punish or retaliate against the press. The amended act should empower inspectors general to investigate “abuse” as defined to include “official acts” that constitute “reprisal against or an attempt to harass or intimidate” news media organizations or individual journalists in their employ.” To protect against abuse and political weaponization of this process, media organizations would cooperate only on a voluntary basis. Inspectors general would have the authority to initiate an investigation on a “look-back” basis only and could not proceed if the attorney general certified that the use of investigative tools complied with established and published Justice Department procedures and rules. Any findings of abuse should be transmitted to Congress, and the Justice Department should also report any investigation not pursued because the attorney general certified compliance with department process. Moreover, the inspector general should refer evidence of official retaliatory conduct to the Justice Department for potential criminal investigation.
Congress should amend the Presidential Records Act to explicitly include a president’s personal social media accounts or other communication platforms used to communicate and interact with the public about official matters. The amendment would define such accounts as “documentary material” with the effect of disallowing presidential claims that they are personal communication channels from which critical commentary can be blocked.
The next president should also direct the promulgation of a revised regulation governing security reviews of White House press applications. This rule should align the White House’s criteria for a “credentialed” journalist with those of the judicial and legislative branches. The Secret Service should be required to review for security clearance any applicant who meets those qualifications, and if there is no basis for exclusion of the applicant on the basis of a security concern, the Secret Service must approve the applicant for the pass. The regulation would also apply due process requirements to initial clearance and any revocation.
Congress should exercise its oversight role to monitor executive branch practices and conduct in the management of press relations, including but not limited to reviewing Inspector General reporting on a “look-back” basis of its investigations into alleged reprisal or harassment. Alternatively, the Senate and the House could create for this purpose a separate subcommittee of their judiciary committees dedicated to the issue of press freedom.
Chapter Six: The Pardon Power
Congress should amend the bribery statute to establish criminal liability for a president who seeks to obstruct justice through the offer or exercise of the pardon power. The amended statute should specify that the president and vice president are “public officials” within its purview; that an “official act” includes a presidential pardon, commutation, or reprieve provided as part of a corrupt exchange; and that any such grant of clemency is also a “thing of value” if offered or given to influence testimony in any judicial, congressional, or agency proceeding.
Congress should also prohibit self-pardons and specify that such a pardon cannot be the basis for immunity from federal criminal investigation or prosecution.
Chapter Seven: Justice Department Independence
The Justice Department should amend its internal rules and guidance to emphasize ethical principles that insulate law enforcement decisions from improper partisan political considerations. It should revise the Supplemental Standards of Ethical Conduct for Employees of the Department of Justice and the department’s Principles of Federal Prosecution and its Federal Prosecution of Election Offenses to reflect the principles that the department adopted and formally communicated to Congress in 2009 upon concluding its investigation into allegations of politically motivated firings of U.S. attorneys during the George W. Bush administration. Also, the code of ethics for the executive branch should be amended to include an “improper partisan political purpose of influencing an election to public office” within the prohibition on all federal misuse of official authority.
Congress should bar the president from appointing to senior Justice Department positions individuals who within two years of appointment held senior positions of trust or responsibility in the president’s personal campaign organization; in national, state, or local parties; or in other political organizations that supported the president for election or reelection. Congress should also reinstate its original qualification for attorney general that he or she be a “meet person” (that is, appropriate for the position), “learned in the law,” with the added requirement of “integrity,” and should extend this requirement to the positions of deputy and associate attorney general, assistant attorneys general, and the solicitor general.
Chapter Eight: The Special Counsel
The attorney general should amend the special counsel regulations to tighten the trigger for the appointment of a special counsel by requiring the attorney general to make a determination of whether a criminal investigation is “warranted” on the basis of “credible information or allegations.” Should the attorney general decline to appoint a special counsel in the face of credible allegations of criminal wrongdoing, he or she must submit written reasons, including a factual and legal analysis, to Congress. In the event that a criminal investigation of the president or vice president is warranted, the attorney general would have to appoint a special counsel, with no option to proceed through normal department law enforcement process.
The regulations should reflect and protect the public interest in the special counsel’s function of finding facts. In any determination of whether the public interest is served by the appointment of a special counsel, the attorney general should take into account the need for an independent factual inquiry. When a special counsel investigation concludes or is terminated by the attorney general, or the attorney general dismisses the special counsel, the special counsel must issue a report of its factual findings to Congress and the public. The attorney general should not direct the special counsel to refrain from taking any investigative step unless it is plainly inconsistent with law or established department practices. If the attorney general disapproves any investigative step after concluding that those standards are satisfied, he or she must include notice of this action in the notification to Congress of a final determination of prosecution or declination. So that a special counsel may prepare a report of factual findings subsequent to a dismissal or the attorney general’s decision to terminate an investigation, the special counsel should be given access to the investigative record for a period of thirty days.
The attorney general should maintain clearly allocated supervisory control of the investigation and the final decision on prosecution or declination. The attorney general may direct the special counsel to provide periodic updates on the course of such investigation, may direct the special counsel to seek an opinion from the Office of Legal Counsel on any question of law, and may make the final determination on any such legal question. In the attorney general’s final report to Congress, he or she must include notice of any such disputed legal questions, the outcome of Office of Legal Counsel review of those questions, and his or her final determinations.
The attorney general must also report to Congress the basis for any rejection of the special counsel’s expansion of the scope of the investigation, or for the attorney general’s decision to terminate in connection with the annual review of the special counsel’s proposed budget.
Congress should codify the removal provisions currently contained in the special counsel regulations and should further specify that “the Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.”
Congress should amend the obstruction of justice statute to specify that the president commits the crime of obstruction of justice when he commits an obstructive act, with a nexus to an official proceeding, and with a corrupt intent, in three specific cases: (1) intervention to affect the outcome of elections; (2) protection of family members; and (3) self-protection, when the president is either the “subject” or the “target” of a criminal investigation.
In light of the executive branch legal position that a president cannot be prosecuted while in office, Congress should enact a tolling statute to apply to criminal acts the president commits in office and to offenses committed by the president in the course of seeking election to the presidency.
Chapter Nine: The Bureaucracy Against the President
Justice Department regulations should require the attorney general to approve any preinauguration investigation of presidential candidates or presidential campaigns, and prior to approving or disapproving such investigation, he or she should have views in writing of the FBI director, the assistant attorney general in charge of the Criminal Division, and the deputy attorney general. The FBI should submit a plan of any such investigation for the attorney general’s approval, and should regularly notify senior department leadership about the course of the investigation and the use of electronic surveillance, confidential human sources, or undercover employees. The rule should include a presumption against the use in such investigations of an undercover employee, and the attorney general must approve any such use.
Congress should repeal the Logan Act, at least as it applies to members of presidential campaigns and transitions.
Justice Department regulations should require a multilevel review procedure for opening a preinauguration counterintelligence investigation of a presidential candidate or presidential campaign, culminating in final approval by the attorney general. The FBI director, the assistant attorney general in charge of the National Security Division, and the deputy attorney general should review the basis for any such investigation and make recommendations in writing to the attorney general. The director of national intelligence should also participate in the formal review. The FBI should be required to submit a plan of the investigation for the attorney general’s approval, and should regularly notify senior department leadership about the use of investigative techniques and the course of the investigation. All investigative techniques, including the use of undercover employees, should be available in a counterintelligence investigation.
Congress should require the attorney general to notify the congressional intelligence committees of the decision to open any such investigation, or his or her failure to do so, and of the recommendations previously received from the director of national intelligence and the FBI director. In the case of an opened investigation, the notice should explain its basis, including any disagreement between the FBI director and the director of national intelligence about the recommendation to open it. In the case of an attorney general’s refusal to open an investigation, the notice should explain what the director of national intelligence and the FBI director recommended, and the basis for the attorney general’s decision.
In consultation with the director of national intelligence and the FBI director, the attorney general should have the authority to decide whether to inform a campaign that it is subject to a counterintelligence investigation. The determination should rest on whether the investigation plausibly includes the candidate or senior management or is directed toward an individual or individuals employed by or associated with the campaign where there is no evidence of collusion with the candidate or campaign.
The special counsel regulations should be amended to include a counterintelligence investigation of the president (or vice president) as a jurisdictional trigger for appointment. The criterion for appointment must be specified in advance, after a legal analysis by the Justice Department that takes account of presidential prerogatives to determine U.S. national security interests while establishing a basis for inquiry into harmful collusion or collaboration. The attorney general should make the final decision to open an investigation after obtaining views and recommendations from the director of national intelligence, the FBI director, and the head of the National Security Division. Congress should require notice to the congressional intelligence committees of any decision by the attorney general to reject the advice of the FBI director, the head of the National Security Division, or the director of national intelligence to appoint a special counsel, along with the attorney general’s reasons for the declination.
The special counsel regulations should prohibit in clear terms any investigating agency, including the FBI, from announcing recommended charging decisions related to presidential candidates or campaigns. The regulations should also prohibit Justice Department officials from discussing the conduct of uncharged presidential candidates or campaign officials, except for the attorney general and deputy attorney general, who should be able to do so only in exceptional circumstances, as the public interest requires.
The rules should formally incorporate the “sixty-day rule” against the taking of investigative steps related to electoral matters or the return of indictments against a candidate within sixty days of a primary or general election.
Congress should amend the Code of Ethics for Government Service to broaden it beyond an ethical prohibition against the misuse of confidential government information for financial return to include an emphasis on the observance of confidentiality more generally as a vital element of the conception of “public office [as] a public trust.”
Chapter Ten: Investigating Past Administrations
Justice Department regulations should make clear that the attorney general is bound by the department’s media comment policy and its rules that limit prosecutors from publicly discussing a pending case.
Justice Department policy should specify that if an administration determines that investigation of a counterintelligence or related criminal probe of a prior administration is warranted, such an investigation should be conducted by the inspector general of the Justice Department (or by several agency inspectors general working together), not by a prosecutor. If the inspector general uncovers evidence of criminal wrongdoing, he or she should refer the matter to the attorney general, who would be required to invoke the procedures of the special counsel regulations.
The special counsel rules should provide that, so long as the other triggering criteria for an investigation are satisfied, the attorney general will appoint a special counsel in any investigation of the former president or senior officials of the prior administration for conduct arising from their official duties. Under this policy, the attorney general’s use of U.S. attorneys to conduct special-purpose inquiries should be disfavored.
Chapter Eleven: The White House Counsel
The Justice Department’s Office of Legal Counsel should have primary responsibility for legal support for the president. A White House counsel, assisted by a small number of deputies, should continue to be a member of the president’s senior staff, available at all times for direct counsel to the president and focused on Senate confirmation issues, congressional oversight and investigations, and other “crisis management” challenges. The Justice Department lawyers dedicated to White House legal support would provide the White House counsel and the president with analysis and opinions on legal issues arising in these and other contexts.
Chapter Twelve: War Powers and Nuclear Weapons
The executive branch should withdraw the 2001 and 2002 Office of Legal Counsel opinions on war powers issued in the aftermath of 9/11, which took overly broad views of the president’s authority to use force in anticipatory self-defense.
Congress should repeal the 2002 AUMF passed to address the threat posed at the time by the regime in Iraq. Congress’s repeal of the law would make clear that presidential uses of force in and related to Iraq must be grounded in Article II constitutional authority or a reformed 2001 AUMF.
Congress should replace the 2001 AUMF with an updated version to specify the enemies (at the moment, al-Qaeda, the Taliban, and the Islamic State) and any current “associated forces” (such as al-Shabab) against whom Congress authorizes the use of force. This revised AUMF would require the president to notify Congress of any designation of a new “associated force” and should require expedited congressional review of that designation. Finally, it should include a two- to three-year “sunset” clause and thus require affirmative renewal, which would force Congress to exercise its constitutional and democratic responsibilities to deliberate about and vote on (or at least address) the issue.
Congress should amend the War Powers Resolution to (1) define and limit inherent presidential powers of self-defense, (2) prohibit unilateral intervention on humanitarian grounds without congressional authorization, (3) require consultation with specifically identified members of Congress for nonemergency use-of-force situations, (4) require a report to the speaker of the House and president pro tempore of the Senate soon after commencing a use of force abroad, (5) set clear restrictions on the circumstances in which a president may continue the use of force beyond sixty days, and (6) forbid any funds from being expended for any use of force abroad inconsistent with the provisions of the reformed statute.
Congress should enact a statute that requires the president to consult with Congress on certain uses of nuclear force. First, the legislation should acknowledge that the president has Article II authority to use nuclear force to respond to an incoming nuclear attack upon the United States, its territories or possessions, or its armed forces, and to act in self-defense in extreme circumstances to defend the vital interests of the U.S. or its allies. Second, Congress should specify that only it can declare or authorize war in the constitutional sense and that use of nuclear weapons beyond a response to an incoming nuclear attack, or in self-defense in extreme circumstances to defend the vital interests of the U.S. or its allies, would constitute an act of war in the constitutional sense. Third, the president should be required to consult, if possible, with identified members of Congress before using nuclear force to respond in self-defense in extreme circumstances to defend the vital interests of the U.S. or its allies.
Congress should make clear that Section 6 of the Atomic Energy Act is not a blanket authorization to use nuclear weapons as the president sees fit.
Chapter Thirteen: Vacancies Reform
For a vacancy in Cabinet secretary and agency head positions, Congress should amend the Federal Vacancies Reform Act (FVRA) to require the president to choose in order, as available, (1) a first assistant or (2) a Senate-confirmed official within the department or agency, or (3) a Senate-confirmed official in another agency. A nonconfirmed official should be able to run the department or agency only if the vacancy has arisen in the first four months of a president’s term, or longer if no other official has been confirmed for that position at the outset of an administration. An acting official should be able to serve 120 days in office, with only one renewal of an additional 120 days for a failed nomination.
Congress should make clear that agency-specific succession statutes take precedence over the FVRA, or otherwise ensure that the FVRA operates as a back-up when the agency-specific statute fails to provide for succession.
The FVRA should confer a cause of action on anyone adversely affected by an agency action issued by an officer in violation of the FVRA, require the Government Accountability Office to examine and regularly report on alleged FVRA violations, expand the current requirement that departments and agencies report to Congress on vacancies in order to ensure that they are filled in a more timely manner, and tie agency funding to satisfaction of these requirements.
For a vacant office of an inspector general, Congress should mandate that only a Senate-confirmed inspector general from another agency, or a GS-15 or higher official within the inspector general’s office who has been there for more than three years, may fill the role on an acting basis.
In exchange for the president’s support for comprehensive FVRA reform, Congress should eliminate the requirement of Senate consent for hundreds of midlevel positions. This would reduce, but not eliminate, senators’ use of the filibuster and holds on nominees, which would in turn reduce the incentive for presidents to make aggressive, expansive use of acting appointments.
Chapter Fourteen: Other Reforms
The Insurrection Act
Congress should amend the Insurrection Act to require the president to consult with the governor and other state and local authorities to assist in determining whether the deployment of troops is necessary to address an “actual, ongoing and serious threat to the safety of the citizens of the State.” The amended law should further require that the president report to Congress that he or she is invoking his or her authority under the act and has consulted state and local authorities. The amended act should mandate that such a report contain specific findings with respect to the decision, including the nature of the threat and the projected time period for deployment. It should also establish a continuing reporting requirement and a sunset provision after thirty days’ deployment. Finally, Congress should clarify that other statutory authorizations for the executive branch to direct various federal agency components, such as the Drug Enforcement Administration or Immigration and Customs Enforcement, to cooperate in law enforcement are not exceptions to the Posse Comitatus Act.
Emergency Powers Generally
Congress should tighten the criteria for presidential renewal of emergencies after one year and make these criteria even stricter over time. Congress should also require the executive branch to explain and defend each renewal each year in written reports to Congress and in hearings before the renewal becomes effective. Finally, Congress should commission a study of all 123 emergency authorizations on the books, with special attention to the International Emergency Economic Powers Act, to ensure that they remain necessary.
Fast-Track Congressional Subpoena Enforcement Authority
Congress should amend the jurisdictional statute governing congressional subpoena enforcement, by imposing a “duty” on the courts to “advance on the docket and to expedite to the greatest possible extent the disposition of any” civil enforcement lawsuit. The House and the Senate should have the option of requesting a three-judge panel with direct appeal to the Supreme Court.