If it’s Broke, Fix it Restoring Federal Government Ethics and Rule of Law Edited by Norman Eisen The editor and authors of this report are deeply grateful to several indi- viduals who were indispensable in its research and production. Colby Galliher is a Project and Research Assistant in the Governance Studies program of the Brookings Institution. Maya Gros and Kate Tandberg both worked as Interns in the Governance Studies program at Brookings. All three of them conducted essential fact-checking and proofreading of the text, standardized the citations, and managed the report’s production by coordinating with the authors and editor. IF IT’S BROKE, FIX IT 1 Table of Contents Editor’s Note: A New Day Dawns ................................................................................. 3 By Norman Eisen Introduction ........................................................................................................ 7 President Trump’s Profiteering .................................................................................. 10 By Virginia Canter Conflicts of Interest ............................................................................................... 12 By Walter Shaub Mandatory Divestitures ...................................................................................... 12 Blind-Managed Accounts .................................................................................... 12 Notification of Divestitures .................................................................................. 13 Discretionary Trusts .......................................................................................... 13 Review of Financial Disclosure Reports ................................................................... 13 Outside Influence .................................................................................................. 14 By Walter Shaub Golden Parachute Payments ................................................................................ 14 Post-Employment Restrictions ............................................................................. 14 Outside Activities ............................................................................................. 15 Spouse’s Employment ....................................................................................... 15 Investigation and Enforcement ................................................................................... 16 By Walter Shaub Enforcing Conflict-of-Interest Prohibitions ................................................................ 16 Inspector General Independence ........................................................................... 17 Whistleblower Protection .................................................................................... 17 Civil-Service Protections ..................................................................................... 18 Protecting U.S. Democracy Against Foreign Influence ........................................................ 19 By Claire Finkelstein The Foreign Agent Registration Act ........................................................................ 20 FARA as a Blunt Instrument: The Threat to Media and Research Organizations ..................... 22 Reform the Media Exemption under 22 U.S.C. 611(d) ................................................... 23 Establish Civil Investigative Demand Authority ........................................................... 24 Reform the Relationship of FARA to the Lobbying Disclosure Act ..................................... 24 2 IF IT’S BROKE, FIX IT Restoring the Rule of Law in the Department of Justice ...................................................... 25 By Claire Finkelstein and Richard Painter The Levi-Bell Reforms and Aftermath ...................................................................... 26 Enhance the Independence of Investigators and DOJ Attorneys ....................................... 26 Protecting the Intelligence Community .................................................................... 27 Oversight Through Congressional Budgetary Process .................................................. 28 Recusal and Enhanced Compliance with Advice from DOJ Ethics Officials ............................ 28 Restrict Exercise of Prosecutorial Discretion to Domestic Considerations ........................... 28 Rule of Law Violations in Our Past and the Need for Accountability ................................... 29 A Three-Step Approach to Money in Politics ................................................................... 30 By Richard Painter Minimizing Big Money in Politics ........................................................................... 30 Disclosing Big Money in Politics ............................................................................ 32 Counterbalancing Big Money in Politics ................................................................... 33 The Role of Transparency In a New Administration ........................................................... 34 By Anne Weismann International Ethics and Rule of Law Issues .................................................................... 38 By Norman Eisen and Joseph Foti The Open Government Partnership ........................................................................ 38 The Extractive Industries Transparency Initiative .......................................................... 39 International Democracy and Rule-of-Law Forums ........................................................ 40 Conclusion ......................................................................................................... 41 About the Authors ................................................................................................. 44 Endnotes............................................................................................................ 48 3 Editor’s Note: A New Day Dawns By Norman Eisen “If it ain’t broke, don’t fix it.” So goes the old adage. Its corollary, however, is equally import- ant, particularly to U.S. governance and its constant reinventions over the past almost 250 years: if it is broken, do fix it. That principle has guided the American experiment from the earliest days of the Republic through the Civil War and its aftermath, cycles of depression and recovery, grievous domestic and foreign policy blunders and atrocities, and alternating progress and triumphs. When it comes to federal government ethics and My only other request of them was to imagine what the rule of law, a great deal was broken in the past would be the best fixes to these complex issues, four years that must now be repaired. In this report, without regard for any other consideration. The editor a group of distinguished scholars and practitioners and the authors certainly recognize that many com- has come together to provide an independent promises will be necessary in order to translate these assessment of that problem and its solutions. ideas into law and practice. Indeed, we welcome that as part of the normal policy process in which we The mission that these accomplished individuals have all worked collectively for well over a century. undertook was to think deeply about what went awry, But compromise must not come at the expense of the deeper weaknesses that were exposed, and how comprehensiveness. As the broad and interlocking to fix these weaknesses moving forward in their par- ticular domains of expertise. They range from ethics and conflicts of interest, to the Hatch Act and big money in politics, to transparency and independence The editor and the authors certainly at the Department of Justice (DOJ), to ethics issues recognize that many compromises impacting the U.S. role on the international scene. Because these issues are interwoven, and because will be necessary in order to our authors have dealt with all of them in their long translate these ideas into law professional careers, any one of them could have and practice. … But compromise written any of the following sections. Topics were ultimately chosen based on areas of preeminent must not come at the expense of expertise among the group. comprehensiveness. 4 IF IT’S BROKE, FIX IT scope of this report demonstrates, the challenges (always a big if) Biden’s plan promises to go further are interconnected, and any solution must address to “drain the swamp” than either of his predecessors. each of these areas. We followed Brookings prac- tice which does not generally allow endorsement As we discuss in this report, federal law establishes of particular proposed legislation, including H.R. 1 the basic rules for government officials to avoid con- and S. 1, the comprehensive reform bills introduced flicts of interest and other behavior that is corrupt in the House and Senate in January 2021. Instead or appears corrupt by benefiting themselves, their we focused on what we thought were the best solu- families, or associates. Obama went further, ordering tions; the extent to which our recommendations may each of his appointees to sign a pledge committing track with the proposed legislation or other bills is to additional safeguards on their behavior. Trump not intended as an endorsement of this legislation, greatly watered down the standards with scandalous although it merits and receives close attention. results. And that was before he abrogated his plan entirely on the last night of his presidency, wiping As for the executive branch of government, we away post-employment restrictions for his