Replacing independent counsels with congressional investigations.

• Author: Rappaport, Michael B.

INTRODUCTION

Last year, the Independent Counsel statute(1) expired and it now appears there is a good chance that the statute will not be reenacted. This is a welcome development, because the statute suffered from many grave constitutional and policy defects. But if independent counsels are eliminated, with what will we replace them? For the last two decades, the nation has relied upon Independent Counsels to police wrongdoing by high executive branch officials. Prior to that, the country used various institutions that Congress judged to be inadequate when it chose to adopt the Independent Counsel statute. Unfortunately, it is not easy to design an institution that effectively investigates the executive but does not overreach.

Most proposals for replacing the Independent Counsel statute use some part of the executive branch to investigate executive misconduct.(2) Some of these proposals rely on officials, like the Independent Counsel, who are independent of presidential control. Such officials, however, are constitutionally problematic and not accountable to the electorate. Other proposals employ officials who are subject to the President's direction, but these approaches cannot ensure that vigorous and impartial investigations will be conducted.

Instead of relying on the executive branch to investigate, I propose that we return to the system adopted by the Framers, in which Congress investigates executive wrongdoing. The Constitution assigns to Congress the power to investigate and remove executive officials through its impeachment and oversight powers.(3) Under a congressional investigation system, a congressional committee would uncover executive misconduct and then issue public reports documenting it. Disclosing this information to the public would help hold the executive politically accountable for her misbehavior. In many cases, the disclosures would lead the President to dismiss the responsible official. If the official were not removed, Congress could always use the information that it uncovered as a basis for impeachment.

It is true that congressional investigations presently suffer from certain defects. Congressional investigations are often viewed as excessively partisan, which has diminished the credibility of the information they have uncovered. Moreover, congressional committees frequently lack the powers needed to conduct effective investigations, including the power to adequately enforce their subpoenas and to delegate to their staffs the authority to question witnesses who are under oath.

But these problems can be solved. To prevent the investigative committee from excessive partisanship, Congress should adopt a new method for appointing members of the committee. Congressional rules should require the Democrats to choose the Republican members of the committee and the Republicans to choose the Democratic members. Under this appointment method, each party would have an incentive to select the legislators from the opposing party who it believed would most often act based on the evidence rather than on political considerations. Each party also would not appoint members of the opposing party who were political extremists.

The investigative committee should also be given additional powers. Congress could provide the committee with adequate authority to enforce committee subpoenas by authorizing it to bring civil lawsuits for this purpose. The committee should also be permitted to delegate to its staff the power to question witnesses who are under oath. Delegation of this power would reduce the burdens on committee members, who have many other legislative responsibilities. Delegation would also allow for more effective investigations, because the staff would have expertise and experience that many members lack.

This congressional investigation proposal has many virtues. First, the proposal would establish a fully constitutional procedure. It would not, like the Independent Counsel statute, need to bend or break the Constitution in order to erect an effective investigative structure. Second, the proposal would place the power of investigation in officials who are accountable to the electorate but who are entirely independent of the President--an important ideal that no system of investigations by the executive branch can achieve. Finally, the proposal would create a fair investigative process. Unlike the Independent Counsel statute, the proposal would not provide investigators with an incentive to overreach and could not be easily used as a political weapon against one's enemies.

This Essay proceeds in four parts. Part I describes the serious problems that have plagued the Independent Counsel statute and which would to some extent afflict all investigations by executive branch officials. Part II describes my proposal for congressional investigations, explaining how the system would work and describing the changes in existing practice it would require. Part III argues that the congressional investigation proposal would be superior to investigations by the executive branch. Finally, Part IV responds to objections and addresses additional aspects of the proposal.

1. INVESTIGATIONS BY THE EXECUTIVE BRANCH

   1. Problems with the Independent Counsel Statute

      The Independent Counsel statute suffers from several serious problems. Perhaps the most basic problem with the statute is that it is unconstitutional. This might seem to be a peculiar claim, as the Supreme Court approved the constitutionality of the statute in Morrison v. Olson.(4) But the meaning of the Constitution cannot be the exclusive preserve of the Supreme Court. It is essential that the public be able to criticize and disagree with Supreme Court constitutional interpretations, especially those like Morrison, which ignore text, history, and precedent.

      There are two fundamental constitutional flaws with the statute. The first involves the method of appointing the Independent Counsel. Under the statute, the Independent Counsel is appointed by a three-judge panel.(5) The Appointments Clause of the Constitution requires that executive officers be appointed by the President with the advice and consent of the Senate, but it also allows Congress to assign the appointment of inferior officers to the judiciary.(6) Thus, the judicial appointment of the Independent Counsel will be constitutional only if the Independent Counsel is classified as an inferior officer.

      One cannot plausibly argue, however, that the Independent Counsel is an inferior officer. The Independent Counsel exercises important executive authority--the power to investigate and prosecute high executive branch officials, including the President--and is not subject to the direction of any other official. An officer without a superior cannot be inferior.(7) Thus, the Independent Counsel is a noninferior officer who must be appointed by the President with the advice and consent of the Senate. To conclude that the Independent Counsel was an inferior officer, the Court in Mormon was forced to ignore this central point. Instead, the Court adopted a vague and unpersuasive balancing test that allowed it to reach virtually any conclusion it desired.(8) Happily, the Court may now have recognized its mistake, because all nine Justices have recently joined opinions that interpreted "inferior officer" more appropriately.(9)

      The second constitutional flaw is that the statute deprives the President of the power to direct and remove the Independent Counsel. This insulation is obviously necessary if the Independent Counsel is to be independent of the President. The problem, however, is that the Constitution is best read as providing the President with the power to direct and remove all executive branch officials.(10) Although the Supreme Court departed from that interpretation in the 1930s,(11) it had for fifty years interpreted the Constitution as permitting Congress to make quasi-legislative and quasi-judicial officials independent of the President, but as requiring that the President have control over purely executive officials.(12) Because officials who prosecuted criminal cases were purely executive officers, the prevailing constitutional doctrine when Morrison was decided required that the Independent Counsel be subject to presidential direction. Nonetheless, in a single paragraph of the Morrison opinion, the Supreme Court swept away fifty years of constitutional interpretation without the slightest effort to justify its action.(13) Even worse, the Supreme Court's new interpretation was entirely devoid of principle, leaving the question of whether an executive official may be made independent to the unlimited discretion of the Supreme Court.

      In the years since Morrison was decided, the Independent Counsel statute has become less popular, and the Court's decision has been increasingly criticized.(14) Those who previously defended the opinion as a wise constitutional accommodation of the need for executive accountability are now more apt to recognize that Morrison's departures from prior constitutional principle have corrupted the investigative process.(15) In time, Morrison may even come to be viewed for what I have always believed it to be: a cynical opinion adopted by a Court that believed that the elite's (mistaken) view about what was good public policy should take priority over the Constitution.

      In addition to its constitutional infirmities, the Independent Counsel statute suffers from serious policy defects. First, the statute unfairly provides independent counsels with an incentive to find that the person being investigated has engaged in misconduct.(16) Because an Independent Counsel usually has one principal target, she will often be judged a failure if she does not uncover wrongdoing sufficient for an indictment. By contrast, an ordinary prosecutor has less incentive to indict any particular individual since she will investigate many people and will be judged on her overall...