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. 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.
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.