'WHEN THE PRESIDENT DOES IT': WHY CONGRESS SHOULD TAKE THE LEAD IN INVESTIGATIONS OF EXECUTIVE WRONGDOING.

• Author: Pardue, Andrew B.

TABLE OP CONTENTS INTRODUCTION 574 I. HISTORY OF EXECUTIVE BRANCH INVESTIGATORY MECHANISMS 576 A. Flaws of the Independent Counsel System 576 B. Flaws of the Special Counsel System 581 II. THE SOLUTION: CONGRESS AS PRIMARY INVESTIGATIVE AUTHORITY 582 A. Historical Support for Congressional Investigations 583 B. Dual Congressional/Special Counsel Investigations 584 C. How This Proposal Would Work 587 III. BENEFITS OF THE PRESENT PROPOSAL 588 A. Shields Investigations from Presidential Interference 589 B. Satisfies the Constitutional Separation of Powers 590 C. Ensures Expedient Public Disclosure of Relevant Facts 591 IV. COUNTERARGUMENTS 593 A. Violation of the "Take Care" Clause 593 B. Unworkability Due to Extreme Congressional Partisanship 595 C. Public Accountability over Criminal Punishment 598 CONCLUSION 600 INTRODUCTION

Asked by British journalist David Frost whether the President of the United States has the ability to authorize illegal acts when he believes such action is justified, Richard Nixon infamously replied: "Well, when the President does it, that means it is not illegal." (1) A majority of Americans disagreed with the former President's assessment. (2) But the question remains: If the President is theoretically capable of breaking the law while in office, what is the best way to determine whether a crime has actually been committed? This question has forced lawmakers to attempt to reconcile various investigatory mechanisms--all differing in their independence from presidential interference--and the constitutional separation of powers. Previous attempts to resolve the problem by assigning investigations to the Department of Justice (DO J), from the independent counsel system to the current DO J special counsel, have attracted vociferous criticisms on constitutional grounds. (3) Special counsel investigations have also traditionally lasted for years, (4) with the primary form of public disclosure coming in the form of criminal indictments. (5) So if the public feels that an investigation is unwarranted or politically motivated, there is no way for them to register their disapproval. In a highly partisan political environment in which investigations of the executive are likely to continue indefinitely, (6) it is necessary to devise a more durable solution.

This Note proposes an alternative solution to the challenge of conducting executive investigations, one that keeps in mind the dual goals of sufficient investigatory independence and sufficient public accountability. Rather than continued efforts to bureaucratize investigations of the executive by entrusting them to career prosecutors, Congress should instead shoulder the primary responsibility for initiating investigations and conducting executive oversight. This role would be consistent with the Supreme Court's constitutional interpretation and Congress's own historical practice, and would help to insulate future investigations from the possibility of executive interference without infringing on the President's constitutionally delegated authority over all members of the executive branch. Such an approach would also be the fastest way to bring misdeeds to light, thereby serving the public interest in disclosure and enhancing executive accountability at the ballot box.

This Note will proceed as follows. Part I will describe previous attempts to institutionalize a formalized system within the executive branch for investigations of executive misconduct and the constitutional and practical problems inherent in each. Part II will describe the history of successful congressional investigations that inspired the proposed solution--relocating investigative authority from the executive branch to Congress--and the values of investigatory independence, constitutional faithfulness, and public accountability that such an approach would promote. Part III will address the strongest counterarguments, including concerns over constitutionality, partisanship, and justice.

1. HISTORY OF EXECUTIVE BRANCH INVESTIGATORY MECHANISMS

   Investigations into executive branch misconduct that are simultaneously housed within the executive branch are a relatively recent invention in America. The DOJ was not created until 1870, (7) and Congress continued to dominate the investigatory landscape throughout the subsequent century. (8) This Part will assess the executive branch investigatory mechanisms that were eventually created, and the problems inherent in each.

   1. Flaws of the Independent Counsel System

      Before the Watergate scandal, there was no formalized system in place for conducting investigations into alleged executive misconduct. (9) When suspicion of wrongdoing increased to the point that public pressure became impossible to ignore, the President would simply appoint a special prosecutor to investigate the matter on an ad hoc basis. (10) This approach raised several obvious concerns, all rooted in the unitary decision-making authority entrusted to the President. Deciding whether a given situation warranted the appointment of a special prosecutor was the President's sole responsibility; (11) the identity and qualifications of the prosecutor, if appointed, were left to the President's discretion; (12) and the President defined the parameters of the investigation once it commenced. (13) Such total trust in the good character of the Commander-in-Chief seems impossibly naive to modern eyes, but in the few pre-Watergate instances in which the President utilized this system, it successfully produced accountability. The special counsels appointed to investigate the Teapot Dome scandal (14) successfully prosecuted the individuals involved, (15) and President Truman once dismissed his own Attorney General when he attempted to end a special counsel investigation without first obtaining the President's approval. (16)

      Watergate changed everything because it revealed the extent to which the existing special counsel system was vulnerable to retaliation from a President who had little incentive to assist an investigation. (17) President Nixon initially agreed to appoint Special Prosecutor Archibald Cox only because the Senate threatened to block his appointment of a new Attorney General if he refused, (18) and he reconsidered the wisdom of continued compliance with the investigation after the D.C. Circuit Court of Appeals ruled that Nixon must turn over "material evidence" consisting of subpoenaed White House tape recordings for in camera inspection. (19) In response, Nixon proposed a solution to the impasse: he would release edited summaries of the tapes to the Senate Watergate Committee and the grand jury. (20)

      Cox refused to accept this improvisational offer, calling it "non-compliant] with the court's order" in a public press conference and openly questioning whether the President (as opposed to the Attorney General) had the constitutional right to order him to do anything. (21) Within hours, Nixon retaliated by ordering his Attorney General to fire Cox, (22) citing as justification Cox's refusal to accept Nixon's offer. (23) In his statement announcing the firing, White House Press Secretary Ronald Ziegler claimed that the President was the party who acted "to avoid a constitutional confrontation" by proposing an innovative solution that sought to provide the investigators with the evidence they needed "with the least possible intrusion of Presidential privacy." (24) Cox's dismissal, coupled with the simultaneous departures of the two top officials at the DOJ, (25) provoked a massive public outcry (26) and led to the rapid appointment of a new special prosecutor who guided the investigation to its conclusion. (27)

      After Nixon's resignation, Congress set out to devise a new system for investigating the executive with the primary objective of protecting future prosecutors from the possibility of presidential retaliation. (28) The Ethics in Government Act of 1978 (the EGA) created the independent counsel, an empowered version of the special counsel who operated under the aegis of the DO J and could only be appointed by a designated panel of federal judges upon the request of the Attorney General. (29) The Attorney General would make the determination whether an independent counsel was needed without any input from the President. (30) Most importantly, the EGA restricted the conditions under which the Attorney General could dismiss an independent counsel to objectively discernible situations of "good cause, physical or mental disability... or any other condition that substantially impairs the performance of such independent counsel's duties." (31) Congress, aiming to restore public confidence in fair executive oversight, handcuffed future Presidents (32) from exercising unreviewable discretion in firing a special prosecutor while also acting to deter the executive from installing political allies in the position. (33)

      The first signs of trouble for the independent counsel system came not from the political branches of government, but from the courts. In 1988, the Supreme Court ruled eight to one in Morrison v. Olson that the independent counsel system was constitutional, in a ruling that has never officially been overturned. (34) The majority held that the statute did not impermissibly undermine the President's constitutional authority over the executive functions of the federal government because the ability of the Attorney General to hire and fire an independent counsel at her discretion "g[a]ve the Executive Branch sufficient control... to ensure that the President [was] able to perform his constitutionally assigned duties." (35)

      Justice Scalia, in the sole dissenting opinion, disagreed. (36) In his view, the EGA impermissibly robbed the President of a portion of the executive authority granted him under Article II, Section 1, Clause 1 of the Constitution (37) by creating a fully empowered federal prosecutor whom the President could not control; in fact, such a...