Former Trump officials’ coming contempt highlights need for Protecting Our Democracy Act

Seemingly unrelated events this week and next are connected in ways that shed light on a path forward for our democracy’s future. Yesterday, the House passed Rep. Adam Schiff’s (D-Calif.) Protecting our Democracy Act (PODA). Next week, former Trump acting attorney general Jeffrey Clark  and former Trump adviser Stephen Miller are scheduled for depositions with the House Select Committee investigating Jan. 6.

What’s the link?

Among PODA’s key provisions is one that calls on federal courts “to expedite to the greatest possible extent the disposition” of civil law disputes over compliance with Congressional subpoenas. 

On Dec. 1, the eve of the Committee citing Clark for criminal contempt  for having frivolously asserted executive privilege last month, Clark’s lawyer wrote the Committee that Clark would re-appear and assert his Fifth Amendment right to remain silent on a question-by-question basis. That appearance will occur on Dec. 16.

Given Clark’s prior baseless assertions of privilege, there is every reason to expect a legal fight to arise if Clark asserts Fifth Amendment rights to questions whose answers could in no way incriminate him. The Committee could proceed with its criminal contempt referral, but with Clark having appeared and made claims that may be arguable, the Committee would be well advised to consider going to court to obtain a judgment of civil contempt. That would oblige Clark to answer questions previously stone-walled in bad faith — or go to jail until he does.

As for Miller, his appearance is set for Dec. 14. He may follow the now-indicted Steve Bannon’s path and refuse to cooperate, in which case he will be cited for criminal contempt. Or he may follow Clark’s new path and “take the Fifth.” Alternately, having served as a White House adviser to Trump, he may assert a claim of executive privilege that is a more defensible, at least for the time being, than Clark’s. In that case, a civil law dispute is sure to occur over former President Trump’s instruction to assert the privilege.

On Dec. 9, the D.C. Circuit Court of Appeals ruled that Trump’s executive privilege claim, as a former president, is invalid because the current president, Joe Biden, and Congress agree as to its “compelling” need for the evidence in the Select Committee’s investigation of the Capitol attack.

By now, we are well familiar with Trump’s recurring strategy of running out the clock by filing actions aimed at delaying resolution until after the current session of Congress expires, mooting the case. Enacting PODA with its civil enforcement expedition provision would counteract that cynical tactic.

Notwithstanding current Congressional standoffs between the parties, there are reasons to hope for bipartisan support for such measures in the Senate. The current administration is Democratic, and with history suggesting a change of party control in Congress next election, Republicans may be anticipating their committees’ subpoenas to Biden administration officials.

In the past, resistance to Congressional testimony has not been limited to Republican administrations. In 2017, Republicans themselves proposed similar acceleration of Court actions to enforce Congress’s subpoena power.

This correction is just the beginning of PODA’s provisions to rein in presidential abuses of power and to root out corruption. As the New York Times put it, PODA is a “point-by-point rebuke of the ways that President Donald J. Trump flouted norms.”

The bill would help block presidential interference with the Department of Justice via requirements ensuring transparency and accountability for White House-DOJ communications.

PODA would also help protect our elections from foreign interference. The bill requires that political campaigns be informed of the laws prohibiting foreign support and be obliged to report any attempts of such involvement.

It’s hard to imagine any reasonable objection to such provisions.

Similarly, the act would prohibit presidential self-pardons and increase transparency around the presidential pardon process.

Again, both parties have reason to support such a measure. While Trump stretched abuse of the pardon power to the near-breaking point, he’s not the only one to have abused it. On his way out the White House door, President Clinton famously pardoned Marc Rich, a fugitive indicted for $48 million in tax evasion and for trading with Iran during the hostage crisis, after his ex-wife had contributed generously to the Clinton Library. 

While most modern presidents have done all they can to expand executive power, President Biden, to his credit, has collaborated with Congress on PODA measures that he can live with and that would help limit such expansions going forward. That fact, combined with the many provisions that have attracted bipartisan support in the past, opens a unique door for rebuilding the guardrails of our democracy.

And if Senate Republicans eventually use the filibuster to block reforms they have previously sought, that would add one more reason to reform Senate rules to allow for passage of democracy-preserving legislation by majority vote. In any event, yesterday’s vote in the House is a critical step toward restoring our Constitutional system of checks and balances.

Dennis Aftergut is a former federal prosecutor.