Here’s what President Biden can do to cement his legacy. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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This week, I’m turning The Briefing over to my colleagues across the Brennan Center. Each of them suggest actions that President Biden can take in the last weeks of his presidency to secure his legacy and insulate our democratic institutions.

—Michael Waldman

. . .

President Biden campaigned on a pledge to “strengthen America’s commitment to justice and reform our criminal justice system.” One way for him to ensure that his justice policies have a lasting legacy is by using the clemency power. This authority, broadly enumerated in the Constitution, allows presidents to pardon or commute sentences for federal offenses. During his term, Biden put a moratorium on federal executions, endorsed lower sentences for certain drug offenses, and allowed some medically vulnerable people to serve sentences at home rather than in prison.

These decisions make an important policy statement — the criminal justice system is too harsh, racially biased, and often doles out disproportionate justice.

Starting on January 20, however, Donald Trump will have the power to reverse many of the current administration’s policies — he has already pledged to reverse some of them. But he cannot reverse acts of clemency. That’s why we are urging Biden to use his clemency power before leaving office to protect people serving unjust sentences. Among them are more than 40 people on federal death row

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whose sentences can be commuted to life without parole, more than 6,000 serving racially disparate drug sentences, and more than 3,000 medically vulnerable people finishing their sentences at home and posing no threat to their communities.

When it comes to reducing our prison populations, the Brennan Center believes this power should be used more frequently as a vital mechanism of mercy, tempering the often harsh, racist, and inequitable effects of our criminal legal system. You can add your voice here

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—Lauren-Brooke Eisen, Justice Program senior director

One of the biggest risks of the incoming Trump administration is that the unthinkable will begin to seem normal. Trump has threatened to deploy a host of emergency powers — the National Emergencies Act, the Insurrection Act, the Alien Enemies Act — in unprecedented ways. To understand how radical these proposals are, the public must have access to the rules and principles that have steered administrations for decades when it comes to these emergency powers. There are several opinions by the Justice Department’s Office of Legal Counsel on these topics that haven’t been made public. The Biden administration should release them now so that we have a benchmark — one established by someone other than a Trump loyalist — to evaluate the incoming president’s actions.

—Elizabeth Goitein, Liberty and National Security Program senior director

Trump ran for office on his contempt for the “deep state” and has already proposed massive cuts to the government. The Biden administration must preserve what exists for posterity so that the important work of sustaining a functioning government is not lost to history. The current administration should make public whatever it can now and prepare other records to guarantee their accessibility. For instance, to ensure that the Freedom of Information Act can be used to achieve transparency, the administration should be finalizing draft documents and creating written summaries of data and processes.

—Sean Morales-Doyle, Voting Rights Program director

The incoming administration’s plan to deport millions of people greatly heightens the risks of racial, religious, and other types of profiling. In the face of these threats, President Biden should ensure that the Department of Homeland Security issues its profiling guidance and discloses key documents to the public. DHS started developing guidance to clamp down on unfair and unlawful profiling in May 2023. It is past time for the agency to issue these rules, which should fully prohibit reliance on race, ethnicity, and religion and strictly limit reliance on national origin across the full range of its activities from the border to inside the United States.

And, to help the American people understand the legal and policy landscape within which DHS is operating, Biden should direct the department’s agencies to make public key policy documents, such as those on domestic intelligence activities and the collection of information from travelers’ laptops and cell phones, as well assessments of the programs’ effects.

—Faiza Patel, Liberty and National Security Program senior director





Unpacking Trump’s Mass Deportation Strategy

Donald Trump’s plan to deport migrants on a massive scale relies partly on the Alien Enemies Act of 1798, which allows the government to summarily detain or deport noncitizens during wartime. It was last used to detain tens of thousands of foreign nationals of Japanese, German, and Italian descent during World War II — a shameful act for which Congress has apologized. Using this authority for immigration enforcement in peacetime would be a gross misuse of the law, directly undermining our modern understanding of constitutional equal protection and due process rights. “Congress and the courts can and should stop him,” Katherine Yon Ebright writes in the Chicago Tribune. Read more

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Watch an urgent conversation with Yon Ebright and other experts on Trump’s plans to invoke the Alien Enemies Act and the obstacles that might stand in his way on YouTube

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An Army Turned Inward

Another recurring theme in Trump’s comments about mass deportation is his intent to deploy the military. While the Posse Comitatus Act generally prevents the U.S. armed forces from participating in domestic law enforcement, Elizabeth Goitein outlines the little-understood legal authorities a president might invoke to bypass this restriction, such as the Insurrection Act and a national emergency declaration. Additionally, Goitein explores the limits of these powers and the potential legal challenges that could curtail their use. Read more

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The Injustice of Death Row

Trump has vowed to resume and ramp up federal executions once he takes office. Amid ongoing concerns about the fairness, legality, and inhumanity of the federal death penalty, advocates are urging President Biden to commute the sentences of the 40 people currently on federal death row to life without parole. A new Brennan Center piece delves into the controversies surrounding the federal death penalty and argues why Biden should grant the requests for clemency. Read more

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A Danger to First Amendment Rights

If Trump follows through on some of his most controversial campaign promises, including mass deportations, restrictions on abortion pills, and a new “Muslim ban,” public protests are likely. However, the Federal Protective Service, a little-known but powerful law enforcement agency within the Department of Homeland Security, could be used to suppress dissent, warns Spencer Reynolds. “Congress, as well as state and local authorities, must act urgently to prevent [the agency’s] weaponization against the president’s political opponents,” Reynolds writes in Slate. Read more

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Coming Up

VIRTUAL EVENT: Insurrection Inc.

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THIS WEEK Thursday, December 12, 3–4 p.m. ET



The 2024 election underscored the growing power of big money in American politics. This year’s races broke spending records as megadonors backed candidates to push their special interests and buy government access and influence. At the same time, the rise in dark money from undisclosed sources has made it increasingly difficult to identify who is really behind campaign contributions.



Join us for a virtual conversation with Stetson University law professor Ciara Torres-Spelliscy, author of Corporatocracy: How to Protect Democracy from Dark Money and Corrupt Politicians, and Natalie Tennant, former West Virginia secretary of state and newly elected Kanawha County commissioner. They will explore how to strengthen American democracy against the encroaching threat of corporate control. RSVP today

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News

Michael German on false claims of FBI bias // WBUR

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Lauren Miller Karalunas on the push for fusion voting // NEW JERSEY GLOBE

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Joseph Nunn on the likelihood of a martial law declaration // SAN FRANCISCO CHRONICLE

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Daniel Weiner on new cabinet picks’ possible conflicts of interest // FINANCIAL TIMES

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Feedback on this newsletter? Email us at [email protected]

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