Should Congress Adopt a New Independent Counsel Statute?  The Constitutional Issues

One of the principal concerns about the Obama Administration are the scandals and the claims that it is violating the law.  And sadly the congressional investigation process does not seem to be adequately doing its job.  Thus, it is worthwhile thinking about alternative institutions.

The principal method used back in the 80s and 90s was the independent counsel (IC). Unfortunately, the independent counsel was both unconstitutional (for the reasons discussed in Justice Scalia’s dissent in Morrison v. Olson) and subject to serious problems. But while the original IC statute had these problems, that does not preclude employing a reformed IC to investigate the executive branch.

Let’s start with the unconstitutionality of the original IC. Under the old regime, the IC was not subject to the direction of the President and therefore in my view was unconstitutional. In addition, the IC was appointed by a court on the ground that he was an inferior officer, even though he was clearly in my view a principal officer who could be appointed only by the President with the advice and consent of the Senate.

Both of these problems are rectifiable. First, the IC could be made formally subject to the direction of the President. The statute might provide that the IC is subject to the direction of and removal by the President, but that the Congress believes that presidential direction of the IC would be problematic as a policy matter and requests that the President not direct the IC. The statute might also require the IC to disclose to the public if the President gave him a direction and to keep notes of what the direction was. It is likely under this arrangement that the President would not give any orders to the IC, because he would pay a significant political price for doing so.

Second, the IC should be treated as a principal officer who is appointed by the President with the advice and consent of the Senate.  This creates an issue, since the President might nominate someone who is a loyalist and will not vigorously investigate his administration. To guard against this, the Senate would have to confirm only independent nominees.  If the Senate were controlled by the party opposing the President, this would be likely to occur.  If the Senate were controlled by the President’s party, then it is possible that they would confirm a less than fully independent IC, but by no means certain since the Senators might not want the political damage from appearing to protect improperly the President.  To guard against this, the statute could require that the IC be a member of the party opposing the President. (Alternatively or perhaps in addition, the statute could provide that a qualification of being an IC is to be independent of the President and the IC should not have any significant connections with either the President, his administration, or his party.)

Through these mechanisms, the IC would be constitutional, but would retain significant independence to conduct his investigation. It is true that the IC would not be as fully independent of the President as was the IC under the old regime.  But the desire to get 100 percent independence rather than the 90 percent my proposal provides is what rendered the old statute unconstitutional.

Next time, I will address some of the policy issues with the IC.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. R Richard Schweitzer says

    It may be a “stretch,” but perhaps we have reached the point in the functions of the Department of Justice that Congress should consider an amendment to the Constitution providing that the office of Attorney General of the United States shall be an elected office coinciding with the Presidential election. The term not to be limited.

    • gabe says

      Better yet:

      How about making the loser of the Presidential election the Attorney General.
      Now that would shake things up and get at what Rappaport was trying to achieve – an Independent Counsel!!!!!

      Just a thought, guys!

    • Scott Ball says

      You’re getting warmer, Richard.

      You cannot have a system in which the criminals are responsible for policing themselves and at the same time have a just society.

      The AG, or something similar, has to be separate from the persons who are being overseen. Mike’s solution is quite lacking, IMO, because it is entrenched in the existing system. In time, methods of abusing the system that Mike proposes will evolve and the new IC will become another tool of corruption. The IC, or AG or whatever, must be truly independent of the branches of government, which means being independent of the political parties.

      Adding more rules and procedures to the existing system has the same problem as adding a new amendment to the Constitution. Another amendment just gives government more Constitution to ignore, unless it first addresses the problem of government’s ability to ignore the Constitution. Mike’s proposal for adding more rules and offices and procedures gives the government more instruments allowing them to exercise their ability to abuse power because the rules, offices and procedures expand the existing system when instead government needs to be subjugated and limited it to the Constitution by a neutral and truly independent authority.

  2. nobody.really says

    Jumping ahead to policy concerns:

    A typical prosecutor identifies a crime, and seeks to prosecute it against an accused person. An Independent Prosecutor identifies an accused person and scours the criminal code in search of a crime — any crime — that he has committed. Give me limitless resources and subpoena powers, and I expect I could convict almost anybody of something.

    I acknowledge that I’m almost surely in violation of some law (say, driving 4 mph above the speed limit), but rest comfortably in the knowledge that no police or prosecutor has an incentive to scrutinize me that closely. Yet I occasionally must acknowledge that this reflects a bit of privilege on my part, and naivety. Black men may not get the same treatment from law enforcement that I do. Similarly, while someone might have an interest in tailing me, no one would gain sufficient advantage to make it worth the trouble — but as surveillance technology grows ever cheaper, the cost/benefit ratio changes.

    Grover Norquist spoke of keeping government small enough to drown in a bathtub. I understand that scarcity of resources is inevitable. I rarely reflect on the idea that scarcity may be functional. Part of the problem of an Independent Counsel law is this lack of scarcity.

    • gabe says

      If I recall correctly, it is “Three Felonies a Day.”
      And after all, if the experts determine that there is a good need for these “laws” then nobody. (should) really follow them, don’t you think.

      You are, of course, right about the undue abundance of resources available when the guvmnt comes after the likes of folks like us – or heaven forbid, a miscreant public official.
      Then again, should not ample resources be made available to correct the miscreants behavior and expose his / her compatriots – I assume that they are doing more than 4 mph above the speed limit – perhaps 15 or 20 mph.

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