Democrats in Congress are right to demand real transparency and oversight before signing on to the inevitable bailout. The bailout would be rife with potential for abuse in the most honest and open administration, which does not describe the Trump administration.
Even before we reached this urgent moment, Trump and his attorney general, William Barr, have argued that the president’s constitutional power is “plenary” and “illimitable,” and that the president can ignore legislation that “encroaches” on that power. Congress’s foundational checks on the president are the power of oversight of the executive branch, what Woodrow Wilson called the “informing function” of Congress, and the power of the purse.
They must use those checks now.
Trump will argue that he can spend the bailout money however he wants, no matter what conditions Congress writes into the law, and that Congress and the American people will have to make do with whatever information he decides to provide. Trump has said that he will be the oversight for hundreds of billions distributed to private businesses.
Congress must act accordingly.
First, Congress should except the bailout from the president’s various emergency powers scattered about the federal statutes. When Congress refused to fund Trump’s signature border wall, Trump declared an emergency and shifted funds that Congress appropriated for other purposes. There was little pretense that there was a real emergency. “I don’t need this,” Trump said, “but I want to get it done faster, that’s all.”
Congress should expressly remove the bailout from the president’s emergency powers. If Trump thinks he needs additional power or to spend funds differently, then he can come back to Congress.
Second, Congress should require a special inspector general and a congressional oversight panel for the bailout, both of which were part of the bank bailout in 2008, and both of which are part of House Democrats’ current bailout legislation. Both should have subpoena power and sufficient staff and funds for the duties that Congress assigns them, and both should report to Congress and the public. The inspector general must be appointed based upon integrity and demonstrated ability, not loyalty to Trump.
Third, Congress should require an independent counsel as part of the bailout legislation specifically for criminal investigations and prosecutions arising from the bailout. The decision to prosecute cannot be in the discretion of the Department of Justice, which may well look the other way if Trump’s allies are implicated. The federal court for Washington should have the power to appoint an independent counsel where there is evidence of criminal conduct. The special inspector general should refer criminal charges for prosecution to the federal court for appointment of an independent counsel, not to Barr’s Department of Justice.
The people most likely to be implicated in criminal conduct include Trump administration officials and Trump’s business associates. Trump’s own businesses will undoubtedly receive bailout funds. An independent counsel is more than justified.
The independent counsel provision in the bailout should also apply to defiance of subpoenas issued by congressional committees, the IG or the congressional oversight panel. Barr has stymied enforcement of congressional subpoenas by refusal to prosecute criminal contempt of Congress. That part of the bailout legislation—an independent counsel for criminal contempt of Congress—should be permanent and apply to all congressional oversight.
Fourth, there should be an independent office of legal counsel for legal issues that arise under the bailout, and any advice the office gives should be public. Congress must wrench authority from the Department of Justice’s Office of Legal Counsel (OLC), which reports to Barr. The OLC supposedly exists to provide detached legal advice to the president and the executive branch. Trump does not want detached lawyers. OLC has increasingly provided contrived legal opinions that allow whatever the president wants to do. OLC has frequently advised that the administration can ignore congressional subpoenas as well as duly enacted laws. It is almost impossible to prosecute an employee of the federal government if OLC advised at the time that the conduct was legal. In effect, OLC grants pardons for acts not yet committed. OLC’s opinions and the conduct that the opinions approve are often secret, and therefore beyond challenge.
Congress has broad power to structure executive branch agencies to provide independence when independence is needed. The conflict of interest when OLC determines the president’s legal power is not hypothetical.
The Constitution almost certainly requires that the president appoint the head of any office of legal counsel for the bailout, but Congress can require that the appointment be based on legal ability and integrity, not partisan loyalty. To assure independence, Congress can require that the president appoint the head of the office from a short list of candidates recommended by congressional leadership, Democrats and Republicans alike.
Trump and his allies will argue that these measures will delay the legislation and complicate administration of the bailout. Our economy must survive this crisis, but so must our democracy.