ROADMAP FOR RENEWAL 
Preserving Non-Partisan and Independent Law Enforcement 
 
V.  Preventing  improper  White  House  interference  with  specific  law 
enforcement  matters  at  the  Department  of  Justice  and  other  law 
enforcement agencies 
 
In a constitutional democracy, those in office should not wield the powers of the state to 
benefit their political allies and punish their opponents. In keeping with this principle, for 
40 years Administrations of both parties have safeguarded that independence by 
maintaining policies limiting contacts between the White House and the Justice 
Department on law-enforcement matters involving specific parties. But that safeguard is 
failing. To address these concerns, Congress should: 
 
● Prohibit improper White House interference in specific-party matters; 
● Require agencies to report improper White House contacts to Congress; 
● Ensure parties in enforcement proceedings are notified of information about contacts 
between the White House and the relevant enforcement agency; and 
● Prohibit White House officials from publicly commenting on most pending 
specific-party legal matters. 
 
The Problem 
 
Since coming into office, President Trump and others in his administration have repeatedly 
violated longstanding practices restricting White House interference in specific-party 
matters. Most notably, the President and his aides have sought to interfere with the 
investigation of Russian meddling in the 2016 election, for instance by asking then-FBI 
Director James Comey to ​“let[] this go”​ with respect to the investigation of Michael Flynn.1 
The president has also called for criminal investigations of his political opponents, 
including ​Hillary Clinton2 and ​Huma Abedin3, while ​rebuking Attorney General Jeff 
Sessions4 for allowing the Department of Justice to indict two Republican congressmen 
ahead of the midterms. He ​threatened Harley Davidson5 with tax hikes after the company 
1

Michael S. Schmidt, ​Comey Memo Says Trump Asked Him to End Flynn Investigation ​(May 16, 2017), The 
New York Times. Available at 
https://www.nytimes.com/2017/05/16/us/politics/james-comey-trump-flynn-russia-investigation.html​.  
2
Donald J. Trump (@realdonaldtrump), Twitter (Nov. 3, 2017, 7:57 am), 
https://twitter.com/realDonaldTrump/status/926403023861141504  
3
Donald J. Trump (@realdonaldtrump), Twitter (Jan. 2, 2018, 8:48 AM), 
https://twitter.com/realDonaldTrump/status/948174033882927104  
4
​Donald J. Trump (@realdonaldtrump), Twitter (Sep. 3, 2018, 3:25 PM), 

https://twitter.com/realdonaldtrump/status/1036681588573130752
5

Dartunorro Clark, ​Trump attacks Harley-Davidson for moving production overseas to offset tariffs ​(June 26, 
2018), NBC News. Available at   
https://www.nbcnews.com/politics/white-house/trump-attacks-harley-davidson-moving-production-overseas-offse
t-tariffs-n886566​.  

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 complained about his trade policies, and demanded action against ​Amazon
6
and ​Time Warner7, whose owners control media outlets that he perceives as unfavorable. 
 
These interventions are alarming. A disinterested, non-partisan law enforcement apparatus 
plays a central role in ensuring that the public maintains faith in the fundamental fairness 
of the criminal justice system. To that end, the Trump White House, like its predecessors, 
has implemented a ​formal policy​ limiting its communications with the Department of 
Justice.8 But this policy is limited and has failed to constrain the president from 
intervening (sometimes publicly) in specific law enforcement matters.  
 
Of course, the President can set general law enforcement priorities consistent with his 
responsibility to “take Care that the Laws are faithfully executed.” For example, it would be 
entirely appropriate for the President to direct DOJ to prioritize white-collar crime or 
healthcare fraud prosecutions. But the President cannot act in individual cases to choose 
winners and losers based on his own political or personal preferences. 
 
Congress can and should encode this important norm into law as part of its authority to 
regulate the executive agencies. There is historical precedent for such a move: During 
President Nixon’s time in office, he routinely directed the Internal Revenue Service to audit 
his political enemies. After he resigned, Congress responded by prohibiting specified 
executive-branch officials, including the President, from requesting that the IRS conduct or 
terminate an audit or other investigation. So too, Congress could permissibly regulate the 
situations in which the White House may interfere with DOJ’s handling of specific-party 
enforcement matters. 
 
When law enforcement loses its reputation for non-partisanship and independence, then 
democracy and rule of law is itself under threat. Americans will start modifying their 
behavior to ensure that they don’t displease the party in power. Ensuring that law 
enforcement is seen as independent and non-partisan should be a top priority for Congress 
in strengthening our democracy. 
 
 
Proposed Solutions 
 
Congress, the federal courts, and the executive branch all have a role to play in ensuring 
that law enforcement is insulated from political interference. But there are several 
measures Congress should enact, all of which are within its constitutional authority: 
 
6

Donald J. Trump (@realdonaldtrump), Twitter (July 23, 2018, 10:35 AM), 
https://twitter.com/realDonaldTrump/status/1021388295618682881  
7
Ryan Knutson, ​Trump Says He Would Block AT&T-Time Warner Deal (​ October 22, 2016), Wall Street Journal. 
Available at ​https://www.wsj.com/articles/trump-says-he-would-block-at-t-time-warner-deal-1477162214​.  
8
Donald F. McGahn II, ​Memorandum to All White House Staff (​ January 27, 2018)​. A
​ vailable at 
https://www.politico.com/f/?id=0000015a-dde8-d23c-a7ff-dfef4d530000​.  

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 Prohibit improper White House interference in specific-party 
matters 
● Codify clear prohibitions on improper White House interference in specific-party 
matters. For example, Congress could specify which personnel at the White House 
can communicate with DOJ officials about particular law enforcement matters, and 
in what circumstances.   
 
Require agencies to report improper White House contacts to Congress 
● At a minimum, as Brennan Center’s Rule of Law task force recently ​recommended​, 
Congress should require the White House to promulgate a policy on proper contacts, 
as Republican and Democratic administrations have done since the Ford 
Administration.9 
● Congress should also require the Administration to report White House contacts 
with law enforcement agencies on specific matters to Congress and the relevant 
agency Inspector General. 
 
Ensure parties in enforcement proceedings are notified of information about 
contacts between the White House and the relevant enforcement agency 
● Congress should require that a privilege log reflecting communications between the 
White House and the Department of Justice, Department of Homeland Security, or 
other law enforcement agencies relating to enforcement matters be provided to 
defendants so that their attorneys are alerted to the potential of unlawful political 
interference. 
● This will enable parties to raise various constitutional defenses such as First 
Amendment, selective enforcement, or due process violations for proper judicial 
consideration.   
 
Prohibit White House officials from publicly commenting on most pending 
specific-party legal matters 
● Preclude White House officials from publically commenting on pending criminal 
cases and law enforcement actions, with limited exceptions for national and 
homeland security or public health emergencies, subject to the penalties imposed for 
improper political activities pursuant to the Hatch Act. 

9

National Task Force on Rule of Law & Democracy, ​Proposals for Reform ​(September 2018), Brennan Center. 
Availalbe at ​https://www.brennancenter.org/sites/default/files/publications/TaskForceReport_2018_09_.pdf​.  

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