Replacing Independent Counsels with Congressional Investigations

Abstract

The article proposes a substitute for the Independent Counsel statute. While most proposals for replacing independent counsels use some part of the executive branch to investigate executive misconduct, I suggest that we return to the system adopted by the Framers and have Congress investigate executive wrongdoing. Under a congressional investigation system, a congressional committee would uncover executive misconduct and then issue public reports documenting it. Although congressional investigations presently suffer from certain defects, the article argues that these problems can be solved. One defect is that congressional investigations are often excessively partisan. To guard against such partisanship, Congress should adopt a new method for appointing members of investigative committees. Congressional rules should require the Democrats to choose the Republican members of the committee and the Republicans to choose the Democratic members. Under these rules, 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 from political considerations. Each party also would not appoint members of the opposing party who were political extremists. A second problem is that congressional committees frequently lack the powers needed to conduct effective investigations. In particular, committees do not have the power to adequately enforce their subpoenas or to delegate to their staffs the authority to question witnesses who are under oath. Congress, however, could provide investigative committees with adequate authority to enforce their subpoenas by authorizing them to bring civil lawsuits for this purpose. Congress could also permit committees to delegate to their staffs the power to question witnesses who are under oath. 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 are entirely independent of the President?an important ideal that no system of investigations by the executive 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.