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.
GAB | The Global Anticorruption Blog 
Thank you for the post Hilary, I think it effectively gets to the heart of this issue, and I do very much agree with you. I wonder, though, what the proper solution is in a situation like this. If an incoming administration believes the prior administration engaged in corrupt behavior, is there a way in which they can go about prosecuting them without engendering cries of partisanship? Perhaps this is something best left to individual US Attorneys? Or are we better off with a sort of Mutually Assured Destruction in which nobody goes after the previous administration’s corruption on the understanding that the guns could be turned on them when they leave office?
Thank you Hilary for detailing your compelling argument against this particular task force option. I also share your view that this specific tool to fight corruption is problematic and would contribute to a harmful narrative and possibly set a bad precedent for future presidential administrations. However, like Maura expressed, there is something unsettling about allowing presidents and their circles to evade investigation and prosecution because of politics, even if there is a historical legacy of this practice. You briefly mentioned that there might be other ways to hold officials accountable for engaging in corruption but could you give a few more examples? Additionally what do you think about the pros and cons of federal vs. state institutions pursuing investigations? Lastly, is there any sort of polling data available to show the American public’s opinion on this dilemma? Do citizens want incoming presidents to always refrain from investigating previous ones? I think the behavior of the Trump administration may have changed opinions.
In the Brazilian experience, the alternance of politicians and political parties in power has produced positive effects in fighting corruption, exactly because the successors undertake efforts to investigate and report unlawful activities of their predecessors. This phenomenon has occurred especially at the municipal level, in which corruption is widespread. By the way, it has been studied from different perspectives by some scholars, who published their findings in English: Ferraz, C., & Finan, F. (2007). Exposing Corrupt Politicians: The Effects of Brazil’s Publicly Released Audits on Electoral Outcomes. Institute for the Study of Labor. http://EconPapers.repec.org/RePEc:iza:izadps:dp2836; Melo, M. A., Leite, A. B., & Rocha, E. (2012). Competitive Corruption: Evidence from Randomized Brazilian Municipal Audits [Working Paper]; Melo, M. A., Leite, A. B., & Rocha, E. (2013). Municipal Corruption: Multilevel Estimates of the Effects of Checks and Political Competition in Brazil [Working Paper]; Melo, M. A., Pereira, C., & Figueiredo, C. M. (2009). Political and institutional checks on corruption: Explaining the performance of Brazilian audit institutions. Comparative Political Studies, 42(9), 1217–1244; Mondo, B. V. (2016). Measuring Political Corruption from Audit Results: A New Panel of Brazilian Municipalities. European Journal on Criminal Policy and Research, 22(3), 477–498. https://doi.org/10.1007/s10610-016-9306-1.
Thank you for your comments and questions. While I’m opposed to Warren’s proposal to create a task-force, I’m certainly not opposed to DOJ–on its own initiative–investigating corruption in the Trump administration and prosecuting individuals. As long as the DOJ wasn’t being directed by the President to prosecute an individual “case,” DOJ norms of independence would remain in tact. A critic might argue that any DOJ prosecutions of Trump officials in a subsequent administration would appear political, regardless of whether the President directed them or not. This could be true, but I don’t think the DOJ should worry so much about political perceptions as long as the norms themselves haven’t been violated. I’m more concerned with how the DOJ understands itself and its role than I am how the American public might–for a limited period of time–regard a certain case. Truth catches up to us in the end. The political points I raise in my blog relate more to the election and how the task-force idea complicates the narrative around impeachment. But, to be extra clear, I’m not suggesting political perceptions should guide how cases are pursued at DOJ.
Thank you for your comments and questions. While I’m opposed to Warren’s proposal to create a task-force, I’m certainly not opposed to DOJ–on its own initiative–investigating corruption in the Trump administration and prosecuting individuals. As long as the DOJ wasn’t being directed by the President to prosecute an individual “case,” DOJ norms of independence would remain in tact. A critic might argue that any DOJ prosecutions of Trump officials in a subsequent administration would appear political, regardless of whether the President directed them or not. This could be true, but I don’t think the DOJ should worry so much about political perceptions as long as the norms themselves haven’t been violated. I’m more concerned with how the DOJ understands itself and its role than I am how the American public might–for a limited period of time–regard a certain case. Truth catches up to us in the end. The political points I raise in my blog relate more to the election and how the task-force idea complicates the narrative around impeachment. But, to be extra clear, I’m not suggesting political perceptions should guide how cases are pursued at DOJ.
Thank you, Hilary. I think that you raise a lot of valid points about the political danger of one president investigating his or her predecessor, and I agree with you that any DOJ investigation of a previous president would be hopelessly overshadowed by accusations of political bias. That being said, I agree with the concerns our colleagues have raised about essentially giving a corrupt former president a free pass.
I think that Megan raised a good point; maybe state investigations could fill the vacuum left by DOJ’s absence. Although they obviously would have a political valence as well, at least they’d be led by actors entirely free from the Executive Branch’s direct influence or control.
Hilary, thanks for the post! You make a compelling argument. The strongest point for me is the threat to the perceived independence of the DOJ. However, we are faced with a unique situation where the President and his associates have engaged in a mind boggling number of corrupt acts (documented on this blog- https://globalanticorruptionblog.com/profiting-from-the-presidency-tracking-corruption-and-conflicts-in-the-trump-administration/) that have made a mockery of Presidential integrity. In the polarized world we live in, I have a hard time thinking of any such investigation, regardless of where it comes from, that wouldn’t be seen as an attack on the Trump admin by Democrats. If that is true, it might in fact make sense for a future President to launch the investigation, if it is one component of a larger anticorruption platform, as it is for Senator Warren. This argument becomes more compelling if it also accompanied by a set of rules that ensure future Presidents and their associates can’t just escape liability.
Finally, the precedent this sets might result in a race to the top, where Presidents have to be increasingly aware they do not misstep or engage in activities that could be seen as corrupt. If the ultimate goal is to reduce the role of money in politics and remove conflicts of interest- this might be the impetus we need to get there.
Hilary, thank you for your thoughtful post! This post has aged well, considering the fact that one of the last two remaining Democratic presidential candidates is Joe Biden, the man whose family was the victim of Trump’s politically motivated corruption investigation. If Biden were to call for a DOJ task force, the investigation might seem even more tainted with a personal vendetta.
That being said, I do agree with Eric that this might be a “damned if you do, damned if you don’t” situation, where any investigation coming from the DOJ will appear politically biased. Obviously, there are many people in the U.S. who want to see Trump’s administration held accountable for its corrupt actions. However, maybe the true solution is to strengthen institutional tools to address corruption at the federal level (tools that have been severely undermined under Trump). Perhaps this is “pie in the sky” thinking, but maybe we should be creating an independent agency that handles all public corruption investigations at the federal level, just like they have done in some states. The political feasibility with this Congress and legal feasibility with this Supreme Court is questionable, but crazier things have happened in the last four years.