Congressman Cohen Votes for Protecting Our Democracy Act that Includes his Amendment to Prevent Abuse of the Presidential Pardon Power

WASHINGTON – Congressman Steve Cohen (TN-09) today voted for the Protecting Our Democracy Act, a comprehensive measure aimed at preventing presidential abuses of power and protecting elections from foreign interference. The measure contains his amendment to require Congressional oversight when the President grants self-pardons or pardons family members, administration officials, or paid campaign staffers. During debate on the measure this afternoon, Congressman Cohen, the chairman of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, explained the critical need to address pardon power abuse such as was seen during the Trump presidency.

In those remarks, he said in part:

"My Subcommittee works on issues concerning civil rights and civil liberties. We've had hearings on the pardon power. The pardon power is something I've been interested in since the 1970s when a Democratic governor of Tennessee abused the pardon power, and I stood up against him. I stood up against the previous president – Trump – who abused the pardon power even more…No person should have unfettered power and the president tried to use the pardon power to take care of people who took care of him…That's why this bill is so important: To protect democracy and save us from abuses by a future president."

See his entire speech here.

The vote on passage of the bill was 220 to 208.

The actions of the past Administration revealed serious vulnerabilities in our democratic systems – vulnerabilities that can and will be exploited again if we don't act urgently to address them. The Protecting Our Democracy Act will take immediate steps to safeguard and strengthen our democracy so no future president – regardless of political party – can act as if they are above the law. It will restore the accountability and transparency of our institutions so that the American people can have confidence in our government's ability to address the challenges we face.

See a section-by-section summary of the legislation below:

Preventing Presidential Abuses

Title I – Preventing the Abuse of the Pardon Power: The Constitution grants the president broad power to issue pardons for federal crimes – but that power is not unlimited and should not be used for corrupt ends. Title I would deter presidents from abusing the pardon power by increasing transparency in the pardon process and by clarifying bans on self-pardons and pardons used for corrupt ends.

Among its provisions, Title I:

• Clarifies that self-pardons are impermissible by making explicit that any pardon issued by the president to themselves has no legal effect and shall not deprive a court of jurisdiction over the pardoned offense.
• Enhances transparency into self-dealing and obstructive pardons, by requiring the Attorney General to submit to Congress investigative materials or materials regarding the DOJ's consideration of a pardon related to (i) any offense arising from an investigation involving the president or their relatives; (ii) any violation of laws prohibiting withholding of testimony or documents from Congress; and (iii) acts of false statements, perjury, obstruction, and witness intimidation respecting a congressional proceeding or investigation.
• Ensures that pardons cannot be used in bribery schemes, by amending the federal bribery statute to explicitly include the offering or granting of a pardon or commutation by the president or vice-president as a thing of value for purposes of potential criminal liability.

Title II -- Ensuring No President Is Above the Law: Title II ensures that presidents can be held accountable for criminal conduct. It is the policy of the Department of Justice to not charge a sitting president with crimes. Because the statute of limitations for any potential charges continue to run during the president's term of office, that DOJ policy means a president could evade criminal accountability simply by running out the clock.

Among its provisions, Title II:

• Pauses the statute of limitations for any federal offense committed by a sitting president or vice president, whether it was committed before or during their terms in office, to ensure that presidents and vice presidents can be held accountable for criminal conduct just like every other American and not use their offices as a shield to avoid legal consequences.

Title III – Enforcing the Emoluments Clauses of the Constitution: Through the Emoluments Clauses, the framers of the U.S. Constitution sought to deter corruption and foreign meddling by barring the president and other high federal officials from accepting an emolument – namely any profit, gain, advantage, or payment – from a foreign government without congressional consent. The President is also barred from accepting any benefit from the federal or state governments beyond the presidential salary. Title III would give force to the constitutional emoluments provisions by codifying their prohibitions and establishing clear mechanisms for reporting and enforcement.

Among its provisions, Title III:

• Codifies constitutional prohibitions on foreign and domestic emoluments, by expressly prohibiting federal officers from receiving most foreign emoluments absent prior congressional consent, and also from accepting domestic emoluments.
• Enhances transparency, by requiring disclosures from federal officers of actual or potential receipt of foreign emoluments, including any business interests that may receive foreign emoluments, and also requiring parallel disclosures from the president related to domestic emoluments.
• Strengthens the enforcement of the Emoluments Clauses.

Title IV – Enforcing Congressional Subpoenas: Congress's power to conduct oversight and secure information is a well-settled feature of our constitutional order. The Supreme Court has repeatedly held that Congress's oversight power is "inherent," a necessary corollary to its lawmaking role. However, Congress's ability to enforce subpoenas in a timely manner has proven insufficient in the face of obstruction. Title IV contains several provisions to strengthen the ability of Congress to enforce congressional subpoenas.

Among its provisions, Title IV:

• Establishes clear rules for compliance with Congressional subpoenas, by explicitly requiring all subpoena recipients to 1) appear and testify and/or produce records in accordance with a subpoena, and 2) produce a privilege log of any information withholdings and the specific basis for each instance of non-compliance, which would be limited to those granted under the Constitution or federal statute.
• Expedites civil enforcement procedures, by creating an explicit right of action for the House and Senate to enforce subpoenas through civil suits; requiring federal courts to expedite enforcement suits as much as possible; and allowing suits to be appealed directly from federal district courts to the U.S. Supreme Court.
• Enhances deterrents for non-compliance, by authorizing courts to impose monetary penalties on certain subpoena recipients for knowing noncompliance.

Title V – Reasserting Congress's Power of the Purse: The framers of our Constitution vested Congress with the power to tax and spend – the "power of the purse" – as a key check against executive power. However, at times the executive branch has circumvented congressional control over federal spending. Title V includes provisions to once again strengthen Congress's power of the purse.

Among its provisions, this part of Title V:

• Enhances the Impoundment Control Act, including by adding penalties for failure to comply.
• Increases transparency and reporting requirements for the Executive Branch.
• Strengthens congressional budget oversight tools under the Antideficiency Act to prevent federal agencies from misusing federal funds.

Title V – Strengthening Congressional Oversight of Presidential Emergency Declarations: Title V also strengthens Congress's role in overseeing presidential emergency declarations under the National Emergencies Act. National emergency declarations have become common and long lasting, undermining Congress's authority. Current emergency powers law lacks the guardrails necessary to stop abuses of power by the executive branch.

Among its provisions, this part of Title V:

• Empowers Congress to proactively approve a presidentially-declared national emergency, and requires any national emergency declaration to expire after 30 days absent congressional assent.
• Requires Congress to consider national emergencies annually, letting them expire if not proactively approved.
• Requires the President, after the initial declaration, to submit a report every six months for the duration of the emergency, detailing its status and the actions taken pursuant to the invoked authorities.

Title VI – Providing Security from Political Interference in Justice: Insulating the Department of Justice from political meddling from the White House is essential to ensuring our democracy's promise of equal justice under the law for all Americans. Title VI has key provisions to prevent political interference in the Justice Department.

Among its provisions, Title VI:

• In order to limit political interference in criminal and civil enforcement matters, requires the Attorney General to maintain a log of certain communications between the Department of Justice and the White House.
• Requires the Attorney General to provide the log to the DOJ Inspector General bi-annually.
• Requires the DOJ Inspector General to report to Congress any inappropriate communications or communications evidencing improper political interference.

Title VII – Protecting Inspector General Independence: Inspectors General need protections to carry out their oversight free from political influence. Inspectors general conduct audits and investigations to determine areas of cost recovery, savings, and instances of wrongdoing. Title VII includes important provisions to protect the independence of Inspectors General.

Among its provisions, Title VII:

• Protects Inspectors General from improper political influence by requiring that they can only be removed for cause.
• Clarifies that IGs of the Intelligence Community have sole authority to determine matters of urgent concern.
• Enhances congressional reporting requirements when an IG is removed.
• Requires the President or an agency head to give 30 days' notice before placing an IG on administrative leave.
• Requires the President to provide to Congress documentation for cause before removing an IG.

Title VIII – Protecting Whistleblowers: Congress has a long history of valuing and protecting whistleblowing. Title VIII strengthens whistleblower protections, which creates new protections for whistleblowers and ensures that federal employees are not chilled from reporting waste, fraud, and abuse in the future.

Among its provisions, Title VIII:

• Protects the anonymity of whistleblowers.
• Clarifies the right of government employees, including in the Intelligence Community, to provide information directly to Congress.
• Provides a private right of action for whistleblowers who are publicly outed by government officials.
• Limits the conditions under which a government official or employee may disclose a whistleblower's identity or other whistleblower information, including limitations on the sharing of Intelligence Community whistleblower complaints with persons named as subjects in the complaint.

Title IX – Providing Accountability for Acting Officials: Title IX would close problematic loopholes in the Federal Vacancies Reform Act of 1998 to help ensure the timely nomination and confirmation of qualified leadership across the executive branch. Excessive use of acting or non-confirmed leadership unconstitutionally circumvents the Senate's advice and consent responsibility, leaving acting officials who are less accountable to Congress and the American people.

Among its provisions, Title IX:

• Limits acting officials to serving up to 120 days from the date of the vacancy.
• Requires acting officials to appear regularly before Congress.
• Places new requirements on the appointment of any individual as an acting Inspector General.

Title X – Strengthening Hatch Act Enforcement and Penalties: The Hatch Act is a federal law that prohibits federal employees from engaging in partisan activities on the job. Unfortunately, the existing enforcement mechanism for violations of the Hatch Act is ineffective. Title X includes provisions to strengthen the enforcement of the Hatch Act.

Among its provisions, Title X:

• Strengthens the Office of Special Counsel's ability to investigate violations of the Hatch Act.
• Clarifies that employees of the Executive Office of the President and the Office of Vice President can be investigated and disciplined for Hatch Act violations.
• Authorizes Merit Service Protection Board to issue fines for Hatch Act violations committed by senior political appointees.
• Increases the maximum fine for Hatch Act violations by senior political appointees to $50,000.

• Title XI – Promoting Efficient Presidential Transitions: The Presidential Transitions Act of 1963 was enacted to promote a smooth transition between incoming and outgoing presidents. After the 2020 election, there was a long and unjustified delay in the ascertainment process. Title XI eliminates delays in the transition process.
• Title XI promotes orderly presidential transitions by requiring that if the Administrator of General Services does not ascertain a winner in a presidential election within 5 days of the election, each eligible presidential candidate and vice-presidential candidate shall be treated as the winner, until an ascertainment is made, or a winner is certified.

Title XII – Presidential and Vice-Presidential Tax Transparency: Title XII would codify for the first time the longstanding norm of presidents, vice presidents, and candidates for those offices publicly releasing their tax returns. Doing so would ensure transparency over whether our highest office-holders are complying with the laws they are sworn to uphold.

Title XII requires the president and vice president, or major party candidates for those offices, to provide ten years of tax returns to the Federal Elections Commission (FEC), which is required to make them public. If a covered person does not provide their tax records, the Secretary of the Treasury is required to provide them to the FEC.

Protecting Our Elections

Title XIII – Ensuring Reporting of Foreign Interference in Elections:

Title XIII includes provisions that would bolster confidence in our democratic institutions by requiring campaigns to disclose offers of illegal campaign help from foreign governments.

Specifically, Title XIII:

• Requires that political committees report to the FBI and the Federal Elections Commission (FEC) certain foreign contacts.
• Requires that each political candidate and immediate family members of the candidate notify a designated campaign committee official of certain foreign contacts.
• Requires the FBI to report to Congress any reporting received pursuant to these provisions.

Title XIV – Preventing Foreign Interference in Elections: Title XIV includes provisions that would bolster confidence in our democratic institutions by clarifying that federal law prohibits accepting opposition research and other non-public information from foreign governments.

Specifically, Title XIV:

• Clarifies that the definition of a "thing of value" in the Federal Election Campaign Act prohibition on foreign donations to political campaigns and candidates includes information sought or obtained for political advantage.
• Enhances criminal penalties for violations of such prohibition.
• Requires that political campaigns certify that they understand the prohibition.
• Prohibits contributions and donations by foreign nationals in connection with ballot initiatives and referenda.

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