Protests Challenge the Country to Reimagine Criminality and Public Safety
Newsletter 40: How federal lawmakers and candidates can respond and build on this moment
Over the past weeks, widespread protests have pushed members of the media and the public alike to turn their attention to local politics, a rare occurrence in our nationally-obsessed political discourse. When one considers the persistence of national gridlock paired with the idiosyncrasies of different localities’ policing structures and practices, the choice to focus on local demands makes clear sense (and that strategy has already secured some high profile wins).
Revolving Door Project, while deeply supportive of those efforts, has little expertise to add to those specific fights. Over the long-term, however, we believe that a close examination of the use and misuse of executive power - our area of expertise - can support the work of activists on the ground in multiple ways. In congressional hearings and on the campaign trail, lawmakers should be seeking to trace the path that brought us to the current moment, to challenge our conception of what is criminal and what it means to be safe, and to suggest concrete actions moving forward. Many of these inquiries will undoubtedly run through the executive branch.
2020 (and Potentially 2021)
As with any protest, people have taken to the streets for many reasons these last few weeks. George Floyd and Breonna Taylor’s murders were the spark, but an abundance of tinder - from unending police brutality to a pandemic that is disproportionately devastating Black communities and an accompanying economic downturn - stoked the blaze. If Joe Biden hopes to set us on a different path should he win in November, he must reflect on the origins of these interlocking problems.That includes when they run through the administration of which he was formerly a part.
When people discuss President Obama’s policies on policing, they are most likely to debate whether his administration’s response to police brutality was aggressive enough, pointing to things like the effectiveness of his administration’s consent decrees or the impact of new technologies like body cameras. These are worthy debates better handled by those with more expertise on that topic than ourselves.
They are less likely, however, to bring up the Obama administration’s record on white-collar enforcement. Yet, the administration’s decisions in the latter regard should also be understood to contribute to the country’s broad decline of trust in institutions. (Of course, this trend has only gotten worse under Trump; more protesters were arrested in the first week of the Floyd-Taylor protests than white-collar crime cases were prosecuted in all of 2019. The priorities of law enforcement don’t get much clearer than that.) Most importantly, whereas national policing reform necessarily involves a wide array of actors -- including Congress, state and local governments, and police unions -- white collar enforcement is an area over which presidential appointees have relatively unimpeded control.
Calls to rethink policing are leading many to reconsider who or what poses the most severe threat to public safety. White-collar crime, in particular, deserves more attention. Foreclosing on millions of people, for example, destabilized individual households. The foreclosure crisis also disproportionately harmed African-American and Latino communities.
That crisis has left wounds that still have not healed over a decade later. Much of this foreclosure activity was also illegal, resting on fraudulent documentation. If it had been so inclined, the Obama administration’s Justice Department could have put a stop to much of it.
Yet, the Obama administration’s senior officials - many of whom had worked alongside those responsible for crashing the economy, or indeed, been implicated in the process themselves - did not consider these to be crimes worthy of prosecution. Companies and individuals with a direct hand in widespread economic devastation escaped virtually all accountability and were allowed to continue on nearly as before (one such company, Lender Processing Services, rebranded as Black Knight and resurfaced in the news this week after it hired Trump’s most recent former Comptroller of the Currency Joseph Otting).
Meanwhile, millions continue to live with the consequences of the Obama administration’s inaction. These factors have likely made it harder for many to weather the current downturn and, in turn, contributed to the anger and frustration that is pushing people to make their voices heard in the streets.
Joe Biden must learn from these mistakes. While others will have clearer ideas on what steps a President Biden could take to curb police brutality via executive authority, we know that a more just enforcement strategy must include sidelining those who had a hand in the Obama administration’s white collar non-enforcement. One such persona non grata? Rahm Emanuel, whom the Project’s Max Moran profiled in the American Prospect this week. Moran gives a run-down of just a handful of the reasons Emanuel should be unwelcome in a Biden transition or administration. These include, of course, his efforts to cover up the murder of Laquan McDonald at the hands of Chicago police.
Biden must also recognize his lack of credibility on these issues by working to back up the promises he’s already made. During the primary season, Biden vowed to hold lawbreaking corporations accountable (although, it should be noted that his criminal justice reform platform makes no mention of white-collar crime). People are much more likely to take those promises seriously if Biden makes clear that the people responsible for getting it done will be people with a track record of working in the public interest, not revolving door figures.
Independent Agencies
As David Sirota pointed out this week, while Republicans decry calls to “Defund the Police,” they are working diligently to defund regulatory cops on the beat, like the SEC, CPSC, EEOC, EPA, IRS, and others. That means larger profits for corporations (and by extension, the country’s wealthiest individuals) and lower wages, less safe workplaces, dirtier air (and on, and on, and on) for the rest of us.
Republicans are also weaponizing the nomination process to defang regulators by denying Democrats statutorily-reserved seats. Last week, for example, Donald Trump nominated commissioner Hester Peirce to a second term on the Securities and Exchange Commission without an accompanying nomination to fill the commission’s vacant Democratic seat (traditionally, nominations to politically-balanced boards have been paired). This is a consequential power grab that could keep the SEC in Republican hands (and thus, enforcement exceedingly low) through 2024.
Of course, as we’ve highlighted, this is not the first time Trump and McConnell have deployed this stealth nuclear option - it is not even the first time they’ve done it at the SEC. Trump has previously advanced unpaired nominations to the Federal Deposit Insurance Corporation (FDIC), the Federal Energy Regulatory Commission (FERC), and the Federal Election Commission (FEC).
Vacant seats have not only stifled opposition to GOP-led deregulatory efforts and lax enforcement, but they may also undermine a Biden administration for years to come. If Republicans maintain control of the Senate, they could block a President Biden’s nominations to some of these boards for years without fear of losing a majority.
These quiet machinations have not attracted much public attention, but they are a powerful representation of Trump and McConnell’s hypocrisy. While they advocate maximal punishment for everything from petty crime to peaceful protest, they enthusiastically advance efforts to defund and defang the police force of the rich.
Congressional Oversight
On Monday, House Democrats introduced the Justice in Policing Act in response to demands of protesters nationwide. The legislation has inspired praise, criticism, and a great deal of speculation about its chances of passing McConnell’s Senate. But while we cannot predict the bill’s fate, we can say a few things with certainty. First, whether you like the bill or not, passing this will not solve police brutality (i.e. this will not be the last time that legislators will address this problem). Second, whether the bill passes or not, this should not be the only thing House Democrats do to respond to this moment.
As the project’s Max Moran argued on our blog yesterday, House Democrats can use oversight to pressure Senate Republicans into action, better formulate inevitable future policy responses, and suggest steps that a Biden administration could take to rectify some of these problems. Moran offers several suggestions for first areas of inquiry, including:
Investigating the scope and scale of avowed white supremacy in American police departments;
Reviewing the language currently governing domestic use of the military and military equipment in the National Defense Authorization Act;
Investigating how police contracts and the qualified immunity doctrine insulate officers;
Investigating enforcement of DOJ consent decrees.from accountability;
Learning about and regulating the use of non-lethal weaponry against protesters.
Read the post for the full list of suggestions.
Want more?Check out some of the pieces that we have published or contributed research or thoughts to in the last couple of weeks:
Rahm Emanuel, The Worst Man For The Moment
What The House Could Actually Accomplish To Support BLM Protesters: Oversight
A Brief Introduction to Your New Comptroller of the Currency
The Top Revolving Door Jobs for Ex-FTC Lawyers and Economists
What Might a Biden Administration's Policy Towards India Look Like?
Another BigLaw Alum Ascends at the FTC
May 2020 Update on the State of Independent Federal Agencies