To constrain a presidency, House Democrats seek Republican support

Democrats hope Trump departure could bring GOP support

Rep. Adam B. Schiff, D-Calif., does an on-camera interview in the Capitol on Feb. 5, 2020. (Caroline Brehman/CQ Roll Call)
Rep. Adam B. Schiff, D-Calif., does an on-camera interview in the Capitol on Feb. 5, 2020. (Caroline Brehman/CQ Roll Call)
Posted December 15, 2020 at 1:13pm

House Democrats want to act quickly next Congress on legislation that constrains the type of behavior that President Donald Trump brought to the White House over the past four years, in the hopes that Republicans might go along once the famously retributive and politically powerful populist leaves the Oval Office.

Trump campaigned as an outsider who would “drain the swamp,” and during four years in office he brushed aside many of the long-running traditions that previous presidents followed despite there being no legal requirement. He didn’t release his tax returns, tried to interfere in Justice Department investigations, gave pardons to political allies and stymied congressional oversight requests through lawsuits.

Democrats responded in the past two years with separate proposals that backers say are urgent to protect democracy, and now they have rolled many of them together into one bill.

The main sponsor, House Intelligence Chairman Adam B. Schiff of California, said Democrats had considered taking action on it even during the lame-duck period before this Congress ends on Jan. 3 or President-elect Joe Biden takes office on Jan. 20.

“But it would be hard to get bipartisan support while Donald Trump is still president,” Schiff said. “And I’m hopeful that GOP interest will increase once we have a new administration.”

There are clear hurdles. Almost two-thirds of House Republicans this month signed on to a Supreme Court brief urging the justices to hear a Texas lawsuit that would wipe out the election results in four key states in order to help Trump stay in office — a sign they might still see their political fortunes tied to Trump even after his loss.

Trump’s continued grip on congressional Republicans was evident Monday night after the Electoral College made Biden’s win official, and Russian President Vladimir Putin recognized Biden’s victory before Senate Majority Leader Mitch McConnell finally did Tuesday morning.

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Republicans next year might still control the Senate, where McConnell has not voiced support for any such measures. Spokesmen for McConnell and the top Republicans on the Senate and House Judiciary committees, Sen. Charles E. Grassley of Iowa and Rep. Jim Jordan of Ohio, declined a request for comment on the proposals.

And the next Congress will have to figure out where such changes to governmental structure fit as a priority, against the backdrop of staggering policy problems related to the economy and the COVID-19 pandemic, especially if Democrats have narrow control in the Senate.

Seizing the moment

Outside experts say the time might be right for once-in-a-generation changes to the presidency to address all of the fissures that Trump exposed — but that can’t happen in the middle of a norm-breaking, institution-defying presidency.

“You can only have reform of the presidency during a presidency that generally accepts these norms, and when there’s a Congress interested in conducting these reforms,” Jack Goldsmith, a law professor at Harvard University who co-authored a book that lays out a road map for fixing the presidency, said during an online forum this month. “We may be entering a period like that.”

The co-author, Bob Bauer, a White House counsel during the Obama administration and the top lawyer for Biden’s 2020 campaign, said Republicans should use a “golden rule” to assess the slate of reforms coming from Democrats — changes that they would be happy to apply to presidents from both parties.

“One of the problems that we have to confront in this area is that each political party in our polarized process wants its own very strong president, but not the other party’s very strong president,” Bauer said.

Bauer says the dangers he and Goldsmith laid out in the book, “After Trump: Reconstructing the Presidency,” are not ones that are likely to disappear with Trump. Bauer said the model of a populist president who speaks for the people, breaks through every barrier, refuses every form of resistance, “we think is going to continue to occur, which is what makes setting out on a reform path particularly urgent.”

Bauer and Goldsmith, who worked in the Justice Department during the George W. Bush administration, propose more than 50 changes that Congress should make. The House proposal, which the heads of seven committees put together at the request of Speaker Nancy Pelosi, combines a number of stand-alone bills in 158 pages.

For example, provisions to address presidential abuse of pardons would require the Justice Department to provide Congress with information about any self-serving pardons, clarify how a pardon could be a crime under the federal bribery statute and ban presidents from pardoning themselves.

Trump is not the first president to issue pardons that the other party regarded as rewarding friends and cronies. But Schiff and Democrats say Trump went further when commuting the sentence of his longtime political adviser Roger Stone for lying to Congress in order to cover up for the president.

Other Trump sagas prompted other provisions, including those that would strengthen Congress’ power to enforce subpoenas against executive branch officials and speed up any lawsuits, cap the ability of presidents to declare emergencies, and require the Justice Department to maintain a log of discussions with the White House to avoid improper political interference in investigations.

The bill would require that political committees and candidates report certain foreign contacts and would ensure that political information sought for an advantage counts under a criminal law, a reaction to Donald Trump Jr. and other Trump campaign officials taking a meeting at Trump Tower about possible dirt on Hillary Clinton that the Russians might have obtained.

House Majority Leader Steny H. Hoyer suggested leadership is interested in bringing the Schiff-backed package to the floor if the legislation is reported out of committee. “He’s talked to me about it, and I think certainly he’s going to press it,” the Maryland Democrat said. “I don’t know what the committee will do with it, but I think we’ll take it up.”

Democrats have a broader array of legislation, such as a change to House rules filed by California Democratic Rep. Ted Lieu that could use Congress’ inherent contempt power to fine executive branch officials who don’t comply with subpoenas. That could happen without the need for Senate approval and a presidential signature.

“We’re going to start seeking out Republicans as well, because this is not a partisan issue, it’s an issue of, ‘Do you want congressional subpoenas to matter?’” Lieu said. “And that should apply whether it’s a Democratic or Republican administration.”

Maryland Democratic Rep. Jamie Raskin proposed a bill that would give Congress a role when presidents are unable to perform the role — maybe, say, when they get a highly infectious virus and are airlifted to the hospital, as Trump was in October.

He is also pushing legislation to require presidents to get congressional approval for any emoluments collected from other countries. Foreign leaders patronized Trump’s businesses in apparent efforts to curry favor with the president.

“Trump’s presidency demonstrates how much our system has truly depended on goodwill and respect for the rule of law. If those things are gone, we have a very fragile governmental structure,” Raskin said. “And we need to solidify it quickly for anybody who comes next — Democrat, Republican or anything else.”

Trump’s actions in the past months prompted Democratic talk about expanding the main bill. That includes provisions to clarify that presidents can’t use the White House for political events such as Trump’s use of it to stage the Republican National Convention.

Democrats also now are considering how an administration ascertains the winner of the election — under Trump, the General Services Administration declined to say Biden looked to be the winner and subsequently release funds for the transition — and the necessity to give national security briefings to the incoming administration.

Bauer said the provisions with a chance to pass include a requirement for presidents to disclose tax returns and other information about financial conflicts of interest, as well as for constraints to a president’s interactions with the criminal justice process.

Bauer and Goldsmith consulted with House Democrats about the presidential pardon power, and Bauer said there might be more pressure building for that, “particularly if we see a pardon fest in the next few weeks, where the president is issuing pardons left and right.

“Once Republicans are not voting on these as a vote for or against Donald Trump, but they’re Republicans who are willing to vote on that just on their merits, under our golden rule, we think there’s a chance those reforms could pass,” Bauer said.