Investigating Illegal Government Action

The firing of James Comey and the appointment of a special counsel have once again raised the issue of independent counsels and how we address government wrongdoing.  I have long thought about this issue, proposing various different solutions to the problem.

The basic problem is that we simply do not have adequate institutions in place to address government wrongdoing.  During the late 1970s until the end of the Clinton Administration, the Independent Counsel statute was in place.  The statute had many significant defects, although it did have some virtues.  One virtue was that it had a uniform standard – although probably too lenient of a standard – for when an IC needed to be appointed.  But it had serious other problems.

One problem was that the IC’s incentives were skewed to induce him to investigate and to prosecute.  The IC had nothing else to do.  If one investigated and prosecuted, the IC was a big deal.  If one investigated and declined to prosecute, the IC was seen as ineffective.

I have proposed a reform that would address this problem:

There should be two ICs that undertake the task of investigating and prosecuting an official.  The first IC’s job should be to investigate.  At the conclusion of his investigation, he should issue a report which makes the following determinations: (1) whether there were any violations of federal law, and if so, (2) whether based on normal standards of prosecutorial discretion, those violations should be prosecuted.  If the prosecutor concludes that violations should be prosecuted under (2), then he refers these violations to the second IC, who can only prosecute these violations. The key discretionary decisions about whether to prosecute will then be made by a person who will not actually be doing the prosecuting and will not really derive fame from the prosecution.   The first IC’s time in the spotlight will be with the issuance of his report.  And that report will be judged based on how persuasive it is.

Another problem with the IC statute is that it appears unconstitutional under a correct understanding of the Constitution, even though the Supreme Court shamefully approved the statute in Morrison v. Olson.  I suggest one way to address the alleged unconstitutionality here.  The existing procedure for appointing special counsels is probably constitutional as well, although it does have some serious policy defects.  One is that the appointment of a special counsel is not governed by a mandatory standard, so that special counsels are not appointed under uniform circumstances.

For example, it is troubling that special counsels appear to be appointed more often against Republicans.  Special counsels were appointed under George W. Bush to investigate the Plame affair and now to investigate the Russian ties.  But no special counsels were appointed to investigate Hillary Clinton’s e mail usage, the IRS scandal, or a variety of other scandals under the Obama Administration.  That seems hard to defend.

A similar story occurred concerning independent counsels, who for many years were largely appointed against Republican Presidents.  It was only when they were appointed to investigate Democratic President Bill Clinton that Democrats came to oppose them.

Another problem with independent counsels and special counsels is that they focus on criminal investigations.  Often government officials engage in wrongdoing that should not be punished by the criminal law, but these counsels push the focus in that direction.  One would want a focus on civil wrongdoing as well as criminal investigations.  I hope to address this problem in a future post.

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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