Five key ways Congress can ensure accountability during a lawless era
In the past few weeks, much like during his first term, President Trump has exposed and exploited the cracks in our democracy. Emboldened by a purported “mandate” by the American people and a series of decisions from the Supreme Court severely limiting presidential accountability, the Trump administration has demonstrated little to no desire to abide by the Constitution developed by our founders, the laws passed by Congress or the actual interests and well-being of the individuals who voted for his return to office. And all the while, Trump is poised to personally benefit from his presidency to an even greater degree than he did during his first term.
Faced with these threats, it is apparent that our existing framework of checks and balances is ill-equipped to protect American democracy from the threat posed by the Trump administration. New tools are urgently needed to constrain presidential misconduct. The stakes are grave: in under a month, the Trump administration has frozen funding for foreign aid, energy programs and sanctuary cities, attempted to unilaterally shutter at least one congressionally established agency and fired at least 18 independent watchdogs without following the requirements in federal law. This activity follows a first term in which Trump similarly “flooded the zone” with a deluge of radical, unlawful conduct that left watchdogs playing whack-a-mole, attempted to unlawfully overturn the results of the 2020 election, and incited an insurrection that resulted in the injury of more than 140 law enforcement officers and the deaths of several others.
During Trump’s first term, members of Congress introduced the Protecting Our Democracy Act (PODA). PODA laid out a comprehensive slate of reforms aimed at preventing presidential abuses of power, restoring our system of checks and balances, enhancing accountability and transparency and protecting our elections from foreign interference. But the effectiveness of PODA hinges on an executive branch that is willing to faithfully execute the laws passed by Congress. And with the benefit of the Supreme Court’s novel interpretation of presidential power, the current administration has demonstrated a marked disregard for following the law. So while PODA in its current form represents an important starting point for reforming presidential power, novel misconduct by the current administration demands a novel legislative response.
With this in mind, PODA must include a stronger framework for executive branch accountability, both to ensure that presidents follow the law and that they face consequences if they do not. Below, we discuss the recent developments that have unleashed executive power and offer five suggestions that, if added to PODA, would make the law more effective: (1) creating a cause of action for Section 3 of the Fourteenth Amendment; (2) tolling criminal statutes of limitations during a president’s term; (3) strengthening transparency and investigations for presidential pardons; (4) extending federal bribery laws to include actions by the president-elect; and (5) establishing an inspector general for the White House.
PODA—and each of its components—will continue to be timely, relevant and necessary moving forward. Passing even some of its provisions will help ensure government officials serve the American people, rather than their own interests, and Congress should pass any provisions with bipartisan approval while building long-term support for the entire package. When the opportunity to pass PODA in its entirety does arrive, proponents should take steps to ensure that the bill is as strong as possible.
The changed landscape
After his first term, President Trump faced a barrage of civil and criminal lawsuits, including state criminal charges for which he was convicted, and federal charges for mishandling classified documents and interfering with the 2020 election. But in the course of these lawsuits, the Supreme Court severely limited potential accountability for Trump and future presidents. First, in Trump v. Anderson, the Court seemingly eliminated the ability of states to enforce Section 3 of the Fourteenth Amendment against federal officerseekers and officeholders after the Colorado Supreme Court concluded that Trump should be excluded from the presidential primary ballot because he had “engaged in” the January 6th insurrection in violation of Section 3. Although the Supreme Court never disturbed the lower courts’ findings that Trump had “engaged in” insurrection, and confirmed that states can enforce Section 3 with respect to state offices, it held that “[s]tates have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.” In other words, the Court held that only the federal government can enforce the Fourteenth Amendment against federal officeseekers and officeholders. In doing so, the Court effectively passed the buck to Congress to pass legislation enabling enforcement of Section 3 at the federal level. Congress has failed to pass such legislation to date.
Then, in Trump v. United States, the Supreme Court held in the 2020 election interference case that a president is absolutely immune from criminal prosecution for actions within the president’s “conclusive and preclusive constitutional authority,” and is at least presumptively immune from prosecution for the president’s “official acts.” In a separate concurring opinion, Justice Clarence Thomas agreed with the majority but also opined on a question not properly before the Court, namely, the validity of the appointment of the special counsel who had brought the two federal prosecutions against the former president. As CREW explained in an amicus brief, Justice Thomas’s fringe theory is contrary to decades of Supreme Court precedent and historical practice. It nonetheless became the roadmap for a lower court’s dismissal of the classified documents case against Trump, while the majority’s sweeping immunity holding “effectively create[d] a law-free zone around the President.”
Through these decisions, the Supreme Court created significant roadblocks to presidential accountability. But despite the broad language of the Court’s immunity holding, Trump v. United States did not foreclose all criminal prosecutions against a former president. Indeed, following the issuance of that decision the Department of Justice argued that the 2020 election interference prosecution against Trump could proceed. And in the classified documents case, the Department of Justice appealed the trial court’s dismissal, contending that Congress had given the Attorney General authority to appoint the special counsel and highlighting a 150-year tradition of such appointments.
But each of these federal criminal cases nonetheless reached a premature conclusion when Trump won the 2024 presidential election. Citing longstanding Justice Department policy that a sitting president cannot face federal criminal charges while in office, before Trump’s inauguration the government moved to dismiss all pending federal charges against the president-elect.
The Trump Supreme Court decisions, and the Justice Department’s application of its policy to the prosecutions of President-elect Trump, reveal the unquestionable difficulty of holding a former president to account for actions taken while in office. But even in the wake of those decisions there are legislative reforms that Congress can add to PODA to restore meaningful checks on executive branch authority. Below we outline five proposals that, if added to PODA, would help ensure that no former, current or future president is above the law.
Five measures to strengthen presidential accountability
1. Establish a cause of action for Section 3 of the Fourteenth Amendment
Section 3 of the Fourteenth Amendment bars anyone who has “previously taken an oath…to support the Constitution of the United States,” and later “engaged in insurrection or rebellion against” the Constitution from holding federal or state office again. It was adopted in the aftermath of the Civil War to prevent former Confederates who had already violated their oaths to the Constitution from subverting American democracy from within. Just over 150 years later, another individual violated their oath to support the Constitution by inciting an insurrection against it: Donald Trump.
The Supreme Court’s decision in Trump v. Anderson allowing Trump to remain on the ballot despite the fact that the court below found he “engaged in” insurrection was at best misguided. The Court reached its decision by creating a legal loophole: a conclusion, unsupported by the clause’s text or history, that states cannot enforce Section 3 against federal officeseekers through their own ballot access laws. Although the Court conceded that states can enforce the clause against state and local officeseekers and officeholders, it nullified states’ ability to keep insurrectionist candidates for president and, potentially, for Congress, off the ballot. In doing so, the Court did not disturb the Colorado Supreme Court’s finding that Trump is an oath breaking insurrectionist. Yet it nonetheless permitted Trump to escape constitutionally-mandated accountability for his role in the January 6 insurrection, allowing him to remain on the ballot and ultimately win reelection.
But the promise of Section 3 is too great to leave behind. And the threat of would-be insurrectionists interfering with the peaceful transfer of power in the future is too great to ignore. Therefore, Congress should take up the Supreme Court’s invitation and include a provision authorizing the enforcement of Section 3 in PODA. In recent years, multiple bills have been introduced authorizing Section 3 enforcement: one by Representatives Debbie Wasserman Schultz and Jamie Raskin, and the other by Representative Steve Cohen. The two bills are similar: both would have created a federal cause of action to challenge an insurrectionist’s attempt to run for federal office, which would allow the attorney general to bring a suit against the would-be candidate in federal court. A similar provision in PODA would satisfy the Supreme Court’s declaration that “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress,” while ensuring that a candidate’s potential disqualification is adjudicated by a neutral fact-finder and that the candidate is afforded due process and a right of appeal.
Both the Wasserman Schultz-Raskin bill and the Cohen bill include elements which the other lacks; a Section 3 enforcement provision in PODA should adopt the best of each. The Wasserman Schultz-Raskin bill is unique in also allowing relevant state officials or impacted voters, in addition to the Attorney General, to bring such a suit. The Cohen bill, meanwhile, includes a definition of insurrection, which the other bill lacks. Both of these elements should be included in PODA.
A cause of action for Section 3 fits naturally in PODA, which is intended to curb abuses of executive power and fortify interbranch checks and balances. A cause of action for Section 3 would do precisely that—while restoring and honoring the intent of the drafters of the Fourteenth Amendment.
2. Prevent the presidency from becoming a “get out of jail free” card
Although Justice Department policy recognizes that a president can be subject to prosecution once they are no longer in office, under that same policy a sitting president generally cannot face federal criminal charges. So even though Trump became the first president to serve as a convicted felon after a jury found him guilty of state charges, all federal charges against him were dismissed following his electoral victory. And now Trump’s second term is set to end twelve years after he first took office, eight years after the end of his first presidential term and more than six years after the most recent actions identified in the dismissed federal charges. Although the special counsel prepared reports on each federal prosecution following the dismissals, Trump’s reelection nonetheless effectively prevents his prosecution for this alleged misconduct because of a five-year statute of limitations that applies to many of the federal charges.
Congress can address this injustice by passing legislation to ensure that future presidents who engage in criminal wrongdoing can be held accountable after they leave office. First, Congress should include a provision in PODA that tolls any criminal statute of limitations during a president’s term. Such legislation could generally suspend federal criminal statutes of limitations while a president is in office, or explicitly permit the Justice Department to reinstitute a prosecution within a certain time period after a president leaves office if the original indictment against an individual is dismissed because they become the president-elect.
To bolster the effectiveness of such legislation, Congress should also include provisions to enhance the transparency of any dismissal of a criminal case against a former or current president, and to preserve evidence from any criminal case that is dismissed because an individual becomes the president-elect. Congress could incorporate in PODA, for example, Senator Adam Schiff’s Investigative Integrity Protection Act (IIPA), which includes transparency requirements and other safeguards if the Department of Justice moves to dismiss a criminal prosecution against a sitting president. But because any federal prosecution against a president-elect is unlikely to continue into that president’s administration, Congress should ensure that these safeguards also capture criminal prosecutions of a president-elect that the Department of Justice seeks to dismiss before the president-elect takes office.
To achieve that end, these transparency requirements should apply to any prosecution against a former president, current president or president-elect. And if a court grants the Justice Department’s motion to dismiss a criminal prosecution against any such individual, the Act should require the Attorney General to preserve any materials obtained or prepared by the Department or any investigative agency until the statute of limitations expires for the charged crimes, and also submit those materials to the Justice Department Inspector General (IG) and to Congress. Such provisions would help alleviate potential concerns or prejudice resulting from any delay in bringing a prosecution, and would ensure that an individual cannot exploit the ballot to escape criminal liability.
3. Shed light on the president’s use of the pardon power
Presidents have broad authority to issue pardons for federal offenses. Presidents have used this power to reduce harsh sentences, pardon nonviolent offenders and rectify sentencing disparities resulting from changes in the law. But the use of this authority has not been without controversy, as presidents have also issued blanket pardons in politically sensitive situations, absolved individuals who lied during government investigations, granted pardons to their relatives and pardoned individuals who committed violent crimes or conspired to use force to try to overthrow the government.
For individuals pardoned after conviction, at least some record of their crimes exists. But for individuals pardoned before indictment or trial, Congress and the public may be left in the dark. In the context of executive accountability, that lack of information is particularly troubling when the president grants pardons that the public views as controversial. PODA seeks to bring transparency to the pardon process by requiring that the attorney general submit to Congress all Justice Department and investigative materials related to pardons of covered offenses, including offenses resulting from an investigation of the president or the president’s relatives or appointees, or the obstruction of a congressional proceeding or investigation.
Congress should strengthen these provisions by incorporating the requirement from Senator Catherine Cortez Masto’s standalone bill that the Justice Department IG also investigate pardons of these offenses. The IG is well-positioned to conduct comprehensive and objective reviews of these pardons, and to provide both Congress and the public fact-based findings on these potentially sensitive subjects. Additionally, Congress should extend both this investigatory provision and the disclosure requirements to any pardon granted to a former president. Although it has been over fifty years since a former president received a pardon, during that time other presidents have also been accused of wrongdoing, with Trump making history as the first former president to face federal criminal charges. Ensuring that Congress receives information about, and that the Justice Department IG investigates pardons of, these offenses would help ensure accountability for pardoned former presidents who will never face federal prosecution for their misconduct.
Finally, Congress should take additional steps to prevent a president from improperly benefitting from the grant of a pardon by requiring individuals who receive a pardon to file an annual financial disclosure form, similar to that required by the president under the Ethics in Government Act, for three years after the date on which they receive their pardon. But unlike the form for government employees, which requires the disclosure of outside income, investments, gifts received and property interests, the form for pardoned individuals should be narrowly tailored to require only the disclosure of any gifts to the president who issued the pardon. And to minimize the administrative burden of submitting this information, the Office of Government Ethics should be charged with establishing a simplified, online process for pardoned individuals completing the form and, if requested, should assist pardoned individuals in doing so. This additional transparency measure would impose a minimal requirement on pardoned individuals, but would bolster the integrity of the pardon process and minimize the risk that a president would use the power of their office for personal gain.
4. Strengthen the federal bribery statute
Although the Supreme Court established sweeping and unprecedented presidential immunity in Trump v. United States, the Court indicated that this immunity does not extend to all conduct associated with a president’s official actions. As an example, the Court cited the federal bribery statute, which prohibits a public official from accepting a bribe for an official act.
Under this law, a public official can commit bribery by merely “agree[ing] to” take an official action in exchange for something of value, even if they do not actually complete the quid pro quo. In that way, an official’s corruption is separate from their official acts. So for a president charged with bribery, immunity for the president’s official acts does not necessarily protect the president against prosecution for their corrupt agreement, or prevent the prosecutor from introducing evidence of “what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced” to perform the official act.
The bribery statute thus provides an important mechanism for holding a president accountable for criminal wrongdoing that may be related to, but is not protected by virtue of its mere connection to, a president’s official acts. In the context of a pardon, for example, under Supreme Court case law Congress cannot limit the effect of a president’s pardon or restrict to what “class of offenders” a pardon applies. But Congress can criminalize a president’s corrupt agreement to grant a pardon in exchange for a payment, for example, without preventing the president from exercising their exclusive authority to grant a pardon or affecting the validity of any accepted pardon.
In this regard, PODA already strengthens the federal bribery statute by clarifying that it applies to acts that a president takes or agrees to take in exchange for being influenced in the grant of a pardon. But the bribery statute would be more effective if it also applied to a president-elect who has not yet assumed the office of the presidency. Although a president-elect generally is supposed to follow an ethics plan before the inauguration, this time period nonetheless is particularly ripe for abuse as Cabinet-hopefuls, foreign officials, and wealthy industry leaders try to get the attention of the soon-to-be leader.
To close this accountability gap, Congress should extend the federal bribery statute to any apparent successful candidate for the office of the president. This would include the president-elect or, in the case of a contested election, all candidates who ultimately could be determined to be the president-elect following resolution of any legitimate disputes. The federal bribery statute already applies to individuals who have been nominated or appointed to be public officials, and applying this provision to a president-elect is not only a natural extension of the law, but also would help ensure that such individuals cannot use the power of their future position for personal gain.
5. Enhance White House oversight
Congressional oversight of agencies is an important check on executive branch power. One way Congress exercises its oversight power is by establishing inspectors general across the federal government. IGs are independent officials within agencies who are empowered to conduct investigations and audits of their agencies to stamp out fraud, abuse and other forms of misconduct. Agencies can use the findings of those investigations and audits to implement internal changes, while Congress can use those findings to inform new legislation and demand accountability from executive branch leaders. Although many federal agencies have an inspector general, the Executive Office of the President (EOP)—which includes White House staff and agencies that immediately serve the president—does not.
This is a glaring hole in the federal government’s ethics framework. EOP is the epicenter of federal policymaking and governance; it includes key decision-making and advisory bodies such as the National Security Council, the Office of Management and Budget (OMB) and, now, the so-called U.S. DOGE Service (DOGE). Without an IG, the White House lacks a key internal accountability mechanism which has been effective in agencies throughout the federal government. This should change: PODA should add a new provision to establish a White House Inspector General, or an equivalent position with the authority to conduct internal investigations and oversight. Representative Rosa DeLauro has previously introduced legislation to create a White House IG, and Congress should incorporate that bill into future versions of PODA.
Congress should also incorporate the removal provisions that apply to other inspectors general for any White House IG. Under such provisions, the president must provide a “substantive rationale, including detailed and case-specific reasons” at least 30 days before the removal of any inspector general. Congress passed these requirements on a bipartisan basis, with the goal of protecting independent government oversight. Although Trump recently flouted these requirements when he fired more than a dozen IGs shortly after he reentered office, such unilateral, immediate removals are nonetheless illegal under this law. The removal of any White House IG should likewise be subject to these congressional notification requirements.
Misconduct in the Executive Office of the President is particularly dangerous as EOP staff are tasked with immense decision-making responsibility and power that directly impacts people’s lives. The first few weeks of the second Trump presidency have made EOP’s reach painfully clear. The across-the-board freeze on federal spending imposed by OMB last month cut off payments that Head Start providers, community health centers and local non-profits rely on to pay their staff and provide crucial services. Similarly, DOGE’s sudden intrusions on federal agencies and demands to access payment systems and other software risks putting the private data of millions of Americans in the hands of an unelected, unaccountable, unchecked billionaire. This flurry of activity stemming from EOP has sowed chaos and confusion among the American people. Without a White House IG, it is possible that EOP’s current actions—though currently being challenged in court—will evade meaningful investigation and public scrutiny. This lack of oversight will inhibit the ability of Congress, the courts and advocates to check executive branch overreach and misconduct. In the future, a White House IG would bring much needed transparency to the highest levels of the executive branch, and allow Congress and the courts to more easily hold executive officials accountable for misconduct.
Moving forward
Emboldened by his reelection and the Supreme Court’s novel interpretation of presidential power, the second Trump administration has unsurprisingly stretched—and at times plainly exceeded—the bounds of its constitutional and statutory authority. It is clear that new tools are needed to effectively constrain presidential overreach. PODA can provide those tools, and by adopting the recommendations set forth above lawmakers can ensure that PODA evolves to meet emerging challenges in a shifting political and legal landscape.
As Trump continues to wrest power away from Congress, lawmakers must respond by prioritizing this legislation, working to pass any parts of PODA with sufficient legislative support in the short term while building support for the entire package in the long run. If passed, either in whole or in part, PODA will help limit executive branch overreach, strengthen federal checks and balances and ensure that the executive branch does not unilaterally destroy critical health, safety and consumer regulations. While PODA cannot prevent all misconduct, it is an important step to curb an administration’s worst excesses and ensure accountability for its most egregious misdeeds.