Last month, Senator and Democratic presidential candidate Elizabeth Warren made a bold anticorruption commitment. She said that, if elected, she would direct the US Department of Justice to establish a special taskforce to investigate the Trump administration for violations of US anticorruption laws—including federal bribery laws, insider trading laws, and public integrity laws. She has has called on every other Democratic presidential candidate to do make the same commitment. Given the egregious corruption of the Trump administration, Senator Warren argues, a special taskforce of this kind is necessary if we are to “move forward to restore public confidence in government and deter future wrongdoing[.]”
Senator Warren—perhaps more than any other Democratic candidate—has put the fight against corruption (both narrowly and broadly defined) at the center of her campaign, and she has generated a range of proposals to combat corruption and strengthen the integrity of US political institutions. She has many good ideas. But this is not one of them. Regardless of whether members of the Trump Administration—including the President, his family members, and members of his cabinet—have engaged in illegal corrupt acts, forming a special DOJ taskforce along the lines proposed by Senator Warren would be a bad idea—bad for the Democratic party, bad for the DOJ, and, most importantly, bad for the United States.
- First, Senator Warren’s promise to direct the DOJ to investigate members of the Trump administration would erode norms of DOJ independence, right at the moment when those norms most need to be restored. While the DOJ, like other federal agencies, is under the direction of the President, the DOJ has historically exercised considerable independence from the President with respect to things like whom it investigates, and how it investigates. While presidents often establish special task forces to prioritize investigations of certain crimes, no US President has ever called on the DOJ to investigate members of a prior administration—and for good reason. No matter how noble the intentions, the perception that the President was using the DOJ to investigate political rivals would create the impression that DOJ is doing the President’s personal bidding rather than enforcing the law in a neutral, dispassionate way. Senator Warren emphasizes that the taskforce she proposes would be “independent,” but that doesn’t make much difference. If President Warren (or another Democratic President) were to direct DOJ to investigate members of the Trump Administration, then regardless of how involved the President or the Attorney General was in the investigation, many would see the effort as more political than legal, with the decision to indict preordained. Furthermore, doing something like this would set a dangerous precedent, inviting future presidents to establish similar taskforces with the express mandate to investigate their own political opponents.
- Second, even if one focuses narrowly on the politics of the proposal, it’s a strategic mistake for the Democrats embrace it. The allegation at the heart of Trump’s impeachment was that he tried to use the threat to withhold military aid as leverage to coerce Ukraine into launching a criminal investigation that would damage former Vice President Joe Biden. The Republican-controlled Senate acquitted the President, which came as no surprise. Some Republican Senators who voted to acquit the President, such as Senator Lamar Alexander, asserted that while what the President did was “wrong,” it was not so bad as to warrant removal from office. Over the course of the next eight-plus months, Democrats seeking to take back the White House will need to convince the American people that what the President did was indeed “so bad” that he should be removed from office for it. It will be harder to make this argument convincingly if Democrats are simultaneously calling for a DOJ investigation into Trump and those around him. Just imagine: President Trump will go on Fox News and say “Look, I was impeached for investigating the bad acts of my predecessor. And now, Democrats are pledging to do the same thing to me and everyone I work with! Maybe someone should impeach them!” Such comments wouldn’t be fair. Conditioning military aid to a foreign country on a faux investigation of a rival’s family is hardly comparable to establishing an independent DOJ taskforce to investigate potential wrongdoing. And the evidence of criminal misconduct by members of the Trump Administration is much stronger than the evidence ever was against Joe Biden’s son. But this isn’t about fairness; it’s about shaping a narrative. And it’s much harder for Democrats to tell a convincing story about Trump abusing his power to push for an investigation of a political rival if Trump and his allies can characterize the Democrats as doing the same thing. (It certainly doesn’t help, in this regard, that Senator Warren has already named certain individuals that she believes should likely be prosecuted, including Commerce Secretary Wilbur Ross and HUD Secretary Ben Carson’s son.)
As I’ve emphasized on this blog before, I respect Senator Warren and think she has a number of compelling ideas about how to promote integrity and enhance accountability in the US government—including limits on the influence of lobbyists, investigations into corruption in government contracting, the establishment of a new office of public integrity, and many others. And it’s certainly possible that the DOJ, under a new Democratic administration, might conduct investigations that would lead to prosecutions of Trump Administration officials. But it is crucial that if such investigations and prosecutions take place, they are seen as the product of a neutral, dispassionate law enforcement decision-making, rather than driven by the President. And that’s why calling for the establishment of a special DOJ task force to investigate corruption in the Trump Administration is both bad politics and bad policy.