20170418 Letter to Donald McGahn Re Agency Contacts Policy

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20170418 Letter to Donald McGahn Re Agency Contacts Policy
  2020 Pennsylvania Ave NW, #163, Washington, D.C. 20006 info@protectdemocracy.org April 18, 2017 Donald McGahn II White House Counsel The White House 1600 Pennsylvania Avenue N.W. Washington, DC 20500 Dear Mr. McGahn, We appreciate that you issued and released an initial policy restricting certain contacts  between the White House and Department of Justice that could undermine the evenhanded application of the law. We write, however, to urge you to go beyond that and issue a robust policy imposing similar restrictions on White House staff contacts with other agencies re garding matters involving specific parties (an “Agency Contacts Policy”) in line with longstanding precedents from both Democratic and Republican Administrations, and to vigorously enforce such policies. Evenhanded treatment under the law is a bedrock principle of our democracy. It is for this reason that White Houses of both parties have prohibited White House staff from engaging in contacts with agency officials in ways that either interfere with the impartial application of agency actions involving specific parties or create the appearance of improper interference. Such policies encourage the proper coordination between the White House and agencies on policy, personnel, communications and other matters of general applicability, but prevent improper interference in matters involving specific  parties by restricting contacts regarding individual enforcement, investigatory, adjudicatory, grant-making or contracting decisions. These policies help maintain public trust in the evenhanded application of our laws. It would be deeply troubling, for example, if the President’s political advisors in the West Wing could email Customs and Border Protection or the Transportation Security Administration to ask them to search a particular individual’s laptop at an  airport because that individual had been critical of the Administration; or could ask the Department of Health and Human Services to stand down from investigating an executive for health care fraud because that individual contributed to a political campaign.  2020 Pennsylvania Ave NW, #163, Washington, D.C. 20006 info@protectdemocracy.org Because of the importance of avoiding political meddling in legal matters involving specific parties, our organization issued a memorandum on March 8, 2017 laying out the history of White House Agency Contacts Policies and practice, and we have attached a copy of that memo here. At the time, we encouraged members of the media to ask the White House if it had such a policy already in place. We were pleased when, in response, the White House released your memo of January 27, 2017 entitled Communications Restrictions with Personnel at the Department of Justice.   That memo is not sufficient to achieve the goals outlined above, however. First, it is incomplete. It covers only certain communications between the White House and the Department of Justice (“DOJ”), whereas prior policies have covered the full range of law enforcement and other   specific party matters that are routinely handled by many federal agencies. Second, a policy alone, without appropriate training and enforcement, is merely words on paper. A number of troubling news reports suggest that more training and enforcement is necessary to make such a policy effective. Protecting the Impartiality of Specific Party Matters Across the Federal Government  The American people depend on our government to handle a vast range of matters involving specific parties  –   whether law enforcement, a government contract, a regulatory waiver, a grant, or a benefit determination  –   equally as to all parties, regardless of those parties’ size, influence, or political connections. With respect to law enforcement matters, the Justice Department is just one of many federal agencies with law enforcement responsibilities. For example, the Department of Homeland Security is home to several major law enforcement agencies, as are several other Departments: the Department of the Interior houses the U.S. Park Police; the Treasury Department is home to the IRS Criminal Investigative Division; and many Departments have Offices of the Inspector General that carry out law enforcement functions. The White House must have in place a policy regulating contacts with all of these agencies, just as it does with DOJ. White House staff should follow the same strictures with respect to civil and criminal investigative and enforcement functions at all federal governmental agencies, departments, boards and commissions, as you have instructed vis-à-vis the Department of Justice. In addition, law enforcement actions are not the only governmental functions that should  be carried out free of political interference from the White House. As agency contacts  policies of prior White Houses reflect, it is not acceptable to permit White House officials to interfere in other types of agency actions affecting specific parties. The American people must have confidence that agency decisions regarding particular  procurement contracts, grants, benefit awards, regulatory waivers, cooperative agreements, and other such matters should be carried out on the merits and free of improper political interference.  2020 Pennsylvania Ave NW, #163, Washington, D.C. 20006 info@protectdemocracy.org Federal laws require, in nearly all cases, open and competitive bidding or merit-based  processes to govern the awarding of contracts and grants. For those laws to operate effectively and with integrity, and avoid the appearance of improper influence in such decisions, any White House staff seeking to communicate with an agency about specific matters should first seek the guidance of the White House Counsel’s office as to whether to make the contact, and if so, who should do so and within what guardrails. Without appropriate limitations, the conduct of White House staff in initiating contacts about specific procurement contracts or grants could create the impression of rewarding  political allies or punishing detractors. The same holds for eligibility determinations for benefits, regulatory waivers, and other adjudicative matters involving specific parties. Our country’s foundational principles of due process and equal treatment under the law require as much. And the President’s Article II obligation to “take care that the laws be faithfully executed” cannot countenance allowing political advisors to inject non-merit-based considerations into these types of actions. As such, any meaningful agency contacts policy must apply across the government to the full range of governmental actions affecting specific  parties. Likewise, the rationale for applying a contacts policy is particularly weighty for independent agencies  –   such as the Securities and Exchange Commission, Federal Communications Commission, and Federal Trade Commission. These independent agencies are distinct from Cabinet agencies in their constitutional status, statutory basis, and/or authority, and thus demand different treatment by White House staff in order to abide by their requirements. Some have statutory requirements regarding rulemaking, as well as disclosure requirements on contacts about certain policy matters. Thus, a proper White House Agency Contacts Policy should take these factors into account regarding contacts with independent agencies. We strongly urge you to issue a full contacts policy covering all of the above contacts and concerns. Failing to institute a robust policy would retreat from bipartisan precedent, and, send the wrong message about the value of integrity and impartiality in our government’s law enforcement and other functions.   Ensuring Compliance with Contacts Policies  Moreover, it is incumbent upon your office to notify, train, and enforce these contacts  policies across the extensive staff of the West Wing and the full Executive Office of the President. Already, several situations have reportedly transpired in which it appears that the White House has engaged in contacts with the Department of Justice that may have violated the current Communications Restrictions memo, as well as forty years of accepted policies limiting White House contacts with DOJ. White House Senior Policy Adviser Stephen Mille r, who is not part of the Counsel’s office, reportedly called the U.S. Attorney for the Eastern District of New York at his home to direct the argument for defending the travel ban. The White House Chief of Staff Reince Priebus may have violated the polic y by seeking the FBI’s assistance to attempt to refute news reports of  2020 Pennsylvania Ave NW, #163, Washington, D.C. 20006 info@protectdemocracy.org communications between Russian intelligence and Trump campaign advisors.   Also, the President placed a call to the U.S. Attorney for the Southern District of New York, Preet Bharara, who declined to return that call on the advice of DOJ leadership because of its apparent impropriety under DOJ’s contacts policy. Finally, questions arose when it was reported that you attempted to access a surveillance order on Mr. Trump and others issued by the Foreign Intelligence Surveillance Court, though a White House official later attempted to recharacterize that effort. In another situation, we raised concerns that without a proper policy and training in  place, another violation could have easily arisen after the CEO of Anthem, Inc., a company currently in litigation with DOJ, was granted an audience with the President. Anthem had previously told the court it believed it could resolve its case “with a new DOJ,”    presumably meaning it believed it could get the new Administration to reverse DOJ’s litigating position in this case. Given the President’s questionable call to Mr. Bharara, we expressed concerns he might similarly try to call DOJ about the Anthem case after speaking with its CEO if not properly trained and counseled on the contacts policy. Taken together, the White House’s conduct in these situations, at best, raises questions about the White House staff’s awareness of their obligations under the policy. When a reporter asked White House Press Secretary Sean Spicer about whether it was appropriate for a White House official to call the Department of Justice’s Civil Rights Division, he did not appear to know about the restrictions on White House staff and instead twice referred the reporter to the Department of Justice for its policy without any reference to a White House policy. These repeated high-profile circumstances where senior staff appear to violate decades-old practice by making improper contacts with the Department of Justice begin to look like a pattern of malfeasance. Moreover, when they go unaddressed by your office or the President, they send a signal to others that these policies need not be followed and undermine public trust that all people are treated equally under the law. We urge you to build on your January 27 memo to staff by: establishing a complete contacts policy as prior Administrations have; issuing it to the public as you did with your prior memo so the American people can have confidence in the impartial and evenhanded execution of the law; and setting forth a plan to ensure compliance with it. Sincerely, Allison F. Murphy Counsel
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