Biden Isn’t Holding Trump Accountable. Sheldon Whitehouse Is Very Concerned.
The last time a Republican administration nearly ran the
country into the ground, Senator Sheldon Whitehouse took
to the floor
of Congress with a warning. It was a month after George W. Bush had left office in
January 2009, and Whitehouse—once the U.S. attorney in Rhode Island as well as
the state’s attorney general—laid out much of the case against
Bush, which included leaving the country mired in a needless war based on
“faulty intelligence” and the “unprecedented politicization” of the Justice
Department. Whitehouse argued that the country could not simply turn the page but
that it was necessary to investigate “the damage the Bush Administration did to
America, to her finest traditions and institutions, to her reputation and
integrity.” Only that would “make the difference between this history being a
valuable lesson for the bright and upward forces of our democracy, or a
blueprint for those darker forces to return and someday do it all over again.”For the most part, the Bush administration never got its
reckoning. Barack Obama famously said, on the issue of Bush’s torture program, that he wanted
to “look forward, not back”—a phrase that became synonymous with the broader absence
of accountability in the wake of the Bush administration. Today, Bush’s public
reputation has so thoroughly recovered that he is selling a book of paintings and being warmly received by
the media.Whitehouse’s warning in 2009 was prescient.Whitehouse’s warning in 2009 was prescient. The country is
now dealing with the fallout from the disastrous administration of Donald Trump,
and we are faced again with the question of whether there will be any
meaningful effort to assess the damage that he and his officials inflicted—and whether
to hold people accountable for their misdeeds. The
early signs are not good. I spoke to Whitehouse—a member of the Judiciary Committee and chair of the subcommittee on federal courts, oversight, agency action, and federal rights—on the afternoon of President Biden’s April 28 address to Congress. We discussed his
concerns that the Biden administration and Congress are repeating the mistakes that
they made after the Bush administration—mistakes that may have contributed to
the rise of Trump. We also talked about whether Attorney General Merrick
Garland will pursue accountability and reform at the department, the
roles of Senators Ted Cruz and Josh Hawley in the siege of the U.S. Capitol on
January 6, and the prospects for Supreme Court reform—including Whitehouse’s
views on a Democratic bill to expand the court and his proposal to shed
light on the influence of “dark money” on the court. The Trump administration was one of the worst
administrations—maybe the worst administration—in American
history. You’ve called for a variety of
accountability efforts—particularly in the areas of climate denialism,
corruption of the executive branch generally, and the Justice Department.We’re on the cusp of 100 days into the Biden
administration—an arbitrary but time-honored milestone—and I feel like we have
not really seen any movement in this area of accountability on the part of the
Biden administration or in Congress, and that everyone is deciding to look forward and not back without quite saying so. Is that a fair assessment in your
view?Pretty fair.Are you concerned?Yep.Is there anything you feel like you can do about this?We’re trying to press the Biden administration to put some
effort into this. I had Michael Regan, the [Environmental Protection Agency] administrator, in the [Environment
and Public Works] committee today and was asking him about their plan to look
at the manipulation of science and the removal of scientists and all of that.
He conceded that they were only looking at who, what, where, when but not
looking at why. I told him, “If there’s a common cause for this stuff and you
don’t pursue that, you’re not doing your job.”There was an infamous NBC story in November—a couple of
weeks after the election—reporting that Biden had told advisers that he didn’t
want to see his presidency consumed by investigations of his predecessor. Have
you had any discussions with them on this—or anything that you can share about
discussions on that front—on the need for systematic accountability? Yes and no. Yes, I have had those discussions, and no,
there’s nothing I can share.You also proposed a special committee of
Congress with its own staff and investigative powers to investigate corruption
in the Trump administration, but again, we’re now months into the
administration. Should we assume at this point that something like that is not
going to happen?[Pause]I would give it some more time. I think that between the
January 6 episode, the mad rush to the Covid bill, and now all of the efforts
that we have to do on trying to get the jobs plan and family plan agreed to and
moving forward, they haven’t even been able to get themselves squared away to
do a January 6 investigative commission.The imperative for that investigation seems almost
stronger than all the rest.Yeah. But I think once that’s underway, that may open the
gate for doing some more stuff. I don’t know. We’ll just have to see. It’s important that the House do this because the House
can do a subpoena.Why is it that the House can do that but the Senate can’t?Because the organizing resolution with us at 50–50 doesn’t
allow for subpoenas by the majority of 50. We need a Republican to sign off on
any subpoena. There’s no procedural path.With respect to the House potentially investigating the
January 6 siege, it seems like that’s dead, or am I misreading the tea leaves?I don’t know. My reading of them is that it’s still
ongoing and that [House Speaker Nancy] Pelosi as late as yesterday was saying
that’s why we need a commission and that they were still negotiating over what
the partition of it would be.You see this still is a very real possibility—that
investigation.Yeah, I think—it’s not dead if she’s still calling for it.I want to turn to the Biden DOJ. So far, we’ve had the number
one, two, and three positions filled at the
department. There are a couple of nominations pending and a few more that were announced, but
the pace of rolling out these nominations seems rather slow. We still don’t
have nominees for the Antitrust Division, the National Security Division,
unless I’m mistaken, not a single U.S. attorney has been nominated yet. Is that—That’s correct.Do you know what’s causing this delay? I think it’s probably [Senate Minority Leader] Mitch
McConnell doesn’t want to move Biden people any faster than he absolutely has
to. And when you get ones who get them irritated but people who are good at
voter-suppression litigation, and are going to go into the Civil Rights
Division or oversee the Civil Rights Division, that jams up the works because
the big dark-money voter-suppression operation that also supports Mitch
McConnell has a fit about those two women, and I think that slows up
everything.Tom Cotton, I think, has some grievances. He says he’s not
going to let any U.S. attorneys go because of one thing or another.The thing that Tom Cotton said was that he would refuse
consent or time agreements for the nomination of any U.S. attorney from any
state represented by a Democrat on the Judiciary Committee. By my tally, that’s about
a quarter of the country’s population, since it includes not just your state,
but California, Illinois, and others. Practically speaking, what effect is that
going to have?Well, it means you’ve gotta go through cloture on them
all, and each one is a two-hour rule. It’s not enormously burdensome. I suspect
that at some point we get fed up and we just run them through in a big group
and let the Republicans have to sit on the floor and complain. I just don’t know. That’s going to be part of how Chuck
Schumer tries to work his way around Mitch’s relentless obstruction.Let’s talk about the DOJ’s role in particular in post-Trump
accountability efforts. I’m particularly bothered by the feeling that we don’t
really know what we don’t know about what happened during the administration. Are
you and your colleagues concerned about the possibility that potentially
criminal misconduct in the administration went undetected or was even ignored
by Trump’s Justice Department?Yeah, I think there are a lot of concerns. What was his
name? I’m drawing a blank right now. The retired judge who wrote the brief—John Gleeson.Gleeson—for the sitting judge in the Flynn case. That is
one of the most astonishing pieces of legal writing I’ve ever seen. First of
all, it was astonishingly well written. I wish I could write like that. And second, you have a retired judge of the United States—representing
a sitting judge of the United States—saying those things about the Department
of Justice? To me, that’s unprecedented, and it’s a powerful sign that
something went very badly wrong at least in that case, and we don’t know what
happened behind the scenes or what phone calls were made or who pulled what
strings. But my God, you couldn’t have much more of a loud alarm bell than that
brief.My thing in the letter was the antitrust letter that went out, where you’ve
got the Department of Justice threatening some of the major auto companies
doing business in the United States with an antitrust investigation because
they had the temerity to try to evade the fossil fuel industry’s effort—apparently
led by Marathon Petroleum—to blow up fuel economy
standards. Like, come on.Let’s have an explanation there—since you’ve got a
whistleblower saying it was all wrong, it appears
to violate the Antitrust Division procedures, and they’re being hypersecret
about letting you see any of the real documents or what happened. You add those three things up, that’s not at all a good
sign.Would you like to see a systematic re-review of prosecutorial
decisions relating to Trump and his executive branch officials that we don’t
yet know about undertaken by this new Justice Department?What I’ve asked—and without any result—has been that the attorney general
convene a small advisory group of department veterans who understand the
culture and norms and history and values of the department implicitly, and have
them take a look at what went wrong, give them a couple of staff folks, and
have that be a place where, if you’re very down in some toiling division of the
department and somebody asked you to do something awful and you squirrel the
file away in a drawer waiting for the day when you had an honest attorney
general who wouldn’t fire you for blowing the whistle, now’s your time to come
forward.If Obama had not been, “We’re
not going to look back, we’re only going to look forward,” the Trumpsters would
have been a lot less bold about doing the reckless damage that they did.I operate off the proposition that if Obama had not been, “We’re
not going to look back, we’re only going to look forward,” the Trumpsters would
have been a lot less bold about doing the reckless damage that they did. I
think they took from that the lesson that they’re safe from scrutiny and they’re
safe from consequences and they can really put the pedal to the metal trying to
wreck these agencies of government and corrupt them because if the worst-case
scenario happens and the Democrats win and you get tossed out, then you get a
reprieve.It’s amnesty for all, and there’s no consequence to it, so
why not be as corrupting as you can be, if there’s never going to be any
consequence?There are a variety of possible criminal investigations
that one might conduct into Trump’s conduct—some less compelling than others.But to my mind, there are some where there’s no question
that anyone but Trump would have been under investigation by the federal
government by now. I’m thinking about his finances, the call to Georgia Secretary of
State Brad Raffensperger and his efforts to overturn the election, and the January 6 siege of the Capitol and Trump’s
possible incitement. Do you think the Justice Department should be
investigating Trump?[Pause]The governance issues that are raised when an
administration uses its Department of Justice to pursue the previous president
are very real ones, so I’m sympathetic to there being considerable caution
about that—particularly where other bodies are looking, like the Fulton County
D.A. looking at the calls and the Manhattan D.A. looking at the tax issues and the
District of Columbia U.S. Attorney’s Office is looking at January 6. I’ve
urged them to look upward and try to make a case for who’s behind all of that
and funded that, how did that all work.I think it’s possible that, depending on how the evidence
moves, the president or members of his family could get ensnared in that. But
we just don’t have the evidence yet, and while something is being looked at,
that’s the worst time for members of Congress to be kibitzing.A majority of the Senate voted to convict Trump at the
second impeachment trial on what was effectively charged and tried as criminal
incitement, even on a very limited factual record. Under the circumstances,
that seems to be more than enough of a predicate for the Justice Department to
begin an investigation into Trump, communications within the White House, and
the like.My original concern was they were just going to do what I
would call a “mopes and dopes” investigation and just make a whole ton of
trespass and assault cases against people who broke into the Capitol that day
and not bother to look at this as a systemic matter and go after the higher-ups, the kingpins.If this were a drug case and you did a sweep of everybody
selling drugs on the street, and then you didn’t bother to look up to who was
funding the operation, who the kingpins were, how it was being structured and
managed, you wouldn’t be doing your job as a prosecutor. That’s the point that
I wanted to make. If, in the course of developing that, they find more evidence
that they think could beyond a reasonable doubt convict people who were part of
the incitement for it, they’ll have to make that call, and I wouldn’t rule it
out at that point.I do think that impeachment’s the wrong place to start, though,
if you’re the attorney general. You don’t want to say, “There was an
impeachment. What was that? Is that predication?” I don’t know. That’s a whole
different lane. I think you want to found your case entirely in your own
proper judicial and prosecutorial process and not do anything that borrows from
the impeachment or tries to stand on it. Particularly in a circumstance like
that, you really want to have gone your own way.You filed an ethics complaint
against Senators Cruz and Hawley concerning their potential involvement in the
siege. What’s the status of that at this point?The ethics committee doesn’t disclose. The policy is that
you essentially automatically get a preliminary review. I have no reason to
believe that the ethics committee either hasn’t or won’t conduct its
preliminary review. If the preliminary review shows that there’s reason to
open a more complete investigation, then they take that step but they don’t
tell anyone. That’s kept within the ethics committee. Whether they have gone on
to a complete investigation yet is not something that I’m entitled to be told.The next big disclosure that we’re going to get is either
their decision to proceed against someone or a public effort at inquiry—in the
form of a subpoena or something like that—or notification that it’s been
closed.Some people have floated the idea of using a provision
under the Fourteenth Amendment to remove Senators Cruz and Hawley. Is that something
that is conceivable to you in the future?I think the issue is going to be the facts and the extent
to which—in pursuing their objections to the electoral ballots—they had
conspired or coordinated with groups that were planning the assault.I have no evidence to support this, but the worst-case
scenario is that they knew that by keeping their objections going, they could
lengthen the proceedings for the counting of the ballots and that they did so
in coordination with the people planning the attack on the Capitol so that the
ballot-counting would still be going on when the mob broke through the perimeters
and got into the building. There was still something going on to disrupt. That’s
the worst-case scenario. And if they got money or campaign support or pledges
in return for doing that, that makes it even worse.Those kinds of things are what needs to be found as to
whether they’re factual or not, and then we can make a decision. But I think
that to start talking about remedies when it’s plausible that what went on here
was simply an effort at political posturing that’s very protected by the Speech
and Debate Clause—we just don’t know. But the reason to make the inquiry—because you don’t know.
It could be that they were coordinating together, and if they were, then that
opens a whole new area of potential consequences for them.In our remaining minutes, I want to talk about Supreme
Court reform. One of your colleagues, Senator Markey, has introduced a bill to expand the
Supreme Court. I don’t think you’ve come out and taken a position on it one way
or the other. Do you support that bill?I don’t fault Senator Markey for putting that bill
forward. It may very well be that that is in order, but I continually look at
this through the lawyer’s lens. If you’re going to ask the judge—the American
people—for an extraordinary remedy, you’ve gotta make your case.That’s why I’m working so hard on all of the inquiries
that I’ve got about the Supreme Court and about the extent to which dark-money
forces ran the turnstile through which the last three judges came, and who
controlled the turnstile and what were the quid pro quos that allowed a judge
to get through the turnstile, and who funded the confirmation, who wrote a $15
million check to fund confirmation TV advertisements for Supreme Court
nominees, and who is behind all these phony baloney amici curiae that
show up in little flotillas of scripted orchestration.We’re also asking the court about its emoluments—its
travel, gifts, and hospitality—and why they don’t disclose in the same way that circuit courts of appeal judges do and that members of Congress do and that Cabinet and other senior executive officials do. Why do they hold themselves to
a lower bar than everybody else in government, including the subordinate judges
on the circuit courts of appeal?I think when you start to get answers to those questions,
you can very well then make the case that very significant reform is required
at the court, and that’s the task I’ve put before myself. I’ve got nothing
against that result. I just think that there are times in life when you have to
earn it and prove it in order to get what you want. I think we’ve got work to
do to prove to the American public that stuff is as wrong—as awry at the
Supreme Court—as all these indications suggest that it is.The legislation that you’ve authored—the Democracy Is
Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act—is part
of H.R.1 and S.1.The centerpiece, I would call it. [Laughs] What are the prospects of that bill passing at this point?This is a little bit like adding seats to the court. A lot
depends on whether you’re willing to do the work. And I think at the moment it
can be expected to get zero Republican support. I’ve been told by people in the room that Mitch McConnell
has said that on this he is going to brook no dissent in the caucus, and
everybody’s to line up and be against this.With the dark-money operation running so wild in so many
areas—and particularly the courts and in climate denial—the idea that the
Republican-leaning dark-money groups are suddenly going to say, “Oh, OK, you can
pass this,” just is completely incredible. I think we’re in for a real fight.If we’re willing to put up the fight and make the effort
and persist at it, then I think the odds turn in our favor because whether you’re
a Bernie Bro or a Tea Partier, you hate the idea that large secretive special
interests are pulling strings in government because they’re able to spend
infinite amounts of dark money without even leaving a fingerprint. The numbers around that proposition are so strong that I think
if we put the effort into really pushing it, we’ll start to see some real
political consequences for the Republicans’ obstruction, and those political
consequences can be the path to victory.I read your article in the Harvard Journal
on Legislation making this case, and I think the striking thing about it is
how modest the DISCLOSE Act is in relationship to the scope of the problem.Yeah. Really? Really? You’re going to get excited about
this? [Laughs]But it seems to me that your near-term obstacles are not
so much the Republicans but your colleagues who are not inclined to eliminate
the filibuster at this point. Do I have that right?Yeah, I think the.… No, the Republicans are the obstacle.
Let’s be clear about that. Their ability to use the filibuster because we don’t
have a filibuster-proof majority is the means through which the Republican
obstruction will be effectuated.Another cause is the intransigence of your colleagues—Senators
Manchin and Sinema—on eliminating the filibuster.Well, let’s not take our eye off the ball here.The real intransigence here is a Republican Party that
will defend to the teeth its dark-money sponsors, while fully aware that dark
money is evil enough for us, in our country, that they’re running advertisements
accusing Democrats of being associated with dark money. They know it’s wrong, they know the American public hates
it. [The New Yorker’s] Jane Mayer had
them describing their predicament in that phone call that she found. We see it
in their behavior as they accuse Vanita Gupta or judicial nominees of being
dark-money stooges for the Democrats. They know perfectly well this stuff is poisonous, and yet
they defend it. And yet they defend it. And that’s the real point here.This interview has been edited for length and clarity.
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