How, exactly, does a man investigate himself?
This is the question that met President Trump from the moment he took office. As the FBI, the attorney general, and the special counsel all serve under the president’s authority, President Trump effectively held ultimate control over investigations into his own behavior. Then, while the Mueller report largely cleared President Trump of colluding with the Russians to influence the 2016 presidential election, it declined to reach any conclusion regarding whether Trump used his presidential power to obstruct the investigation. Hence, the discussion has moved from possible interference in the election, to possible interference in the investigation into possible interference in the election.
Forgive me for finding this entire scenario rather absurd.
The federal government’s tripartite structure imbues the president with the executive power, which includes prosecution. Neither the courts nor Congress may force an individual prosecution. Furthermore, any officer with prosecutorial discretion must, ultimately, be subject to the president’s supervision and removal. In turn, Congress and the people —through impeachment or the ballot box, respectively — may hold the president accountable for the abuse of this prosecutorial power.
We learned long ago that efforts to undermine this structure are dangerous. After the Watergate scandal, the Democratic Congress passed the Ethics in Government Act, creating the Office of Independent Counsel. Under this regime, either party in Congress could effectively require the judiciary to appoint an independent counsel to investigate and potentially prosecute any given matter. At the same time, the president (through the attorney general) could not remove the independent counsel absent “good cause.” This all but ensured an endless parade of unchecked, unaccountable independent counsels essentially harassing succeeding administrations. Following a series of expensive, disastrous investigations — most famously the Kenneth Starr investigation, which lead to the impeachment of President Clinton — both Republicans and Democrats agreed to let the act expire in 1999.
Yet, 20 years later, here we are. To be fair, the special counsel does not, on its face, pose the same constitutional issues presented by the independent counsels of yesteryear — Special Counsel Mueller was both appointed by the president (through Deputy Attorney General Rod Rosenstein) and subject to the president’s at-will removal. As the president retains ultimate executive authority, the basic constitutional structure is preserved. However, this creates a new conceptual challenge: The special counsel effectively grants the president control over an investigation into himself.
This is the strange situation in which a president may act manifestly within his constitutional authority, yet be accused of obstructing justice. As a matter of constitutional law, President Trump could have removed Robert Mueller; he also had the power to fire James Comey and Jeff Sessions and was under no obligation to provide any reason whatsoever. These are all executive officers. But the issue of obstruction requires that we inquire into the president’s mental state, asking whether the president took an otherwise-lawful action with the intent of impeding the investigation. It’s a Rorschach test: Was Trump trying to “obstruct,” or was he simply making administrative decisions within his executive authority?
Whether or not this is constitutional, it is certainly not ideal. A president under investigation by his own branch of government may innocently make staffing changes, only to face impeachment or, more disturbingly, indictment under a subsequent administration. Or perhaps he might end an investigation he considers to be an expensive, unwieldy, partisan distraction, given that he knows he is innocent: Is that obstruction? Conversely, a guilty president may intentionally obstruct an investigation, yet plausibly deny such intent. In any case, the specter of future obstruction charges may, in practice, be just as constraining as the “good cause” requirement for removal of the independent counsels of old.
There are better ways to fight potential presidential corruption. First and foremost, we are fortunate to have a robust First Amendment that allows for vigorous criticism and truly independent, investigative journalism. This allows the American people to decide for themselves whether a presidential candidate or incumbent is corrupt or incompetent. Popular accountability is, ultimately, the cleanest and most natural protection against corruption within the elected branches.
Second, the Constitution grants Congress the power to conduct its own investigations. Congress may hold hearings and issue subpoenas, enforceable through contempt. Congress may then use the results of its investigations — or any unwillingness of the president or his subordinates to cooperate with such investigations — to justify impeachment, to pressure the executive into taking prosecutorial action, or to inform the voting public of possible executive corruption. Thus, executive corruption may be discovered and remedied without violating the formal, structural separation between the legislative and executive branches.
That said, the manner in which Congress currently exercises its oversight authority is in dire need of reform. Note that congressional investigations into the Trump administration’s alleged ties with Russia did occur, and to a large extent the results of these investigations fell on deaf ears. With good reason, onlookers are suspicious of congressional investigations into the president as being little more than either partisan witch hunts or rubber stamps, depending on whether the president’s party controls the relevant chamber.
But Congress itself can work to obviate these concerns. Either chamber may facilitate investigation into the president by, for example, creating a bipartisan standing committee whose members are selected by opposing parties, or whose chair must belong to the party in opposition to the president. Further, Congress may delegate its investigatory authority to another body, which then reports its findings to committee or to the chamber as a whole. In fact, Congress could even have appointed Robert Mueller to investigate the Trump administration, and while Mueller would not have had prosecutorial authority, he could have enjoyed Congress’s delegated authority to issue enforceable subpoenas. Had this been the case, we would be exactly where we are now, but without the trail of process crimes and, more important, without having to discuss whether the president attempted to obstruct the investigation.
Congressional oversight of the executive branch can work. Congress has successfully utilized its investigative power since the administration of George Washington. A century ago, it was a congressional investigation that uncovered criminal wrongdoing connected to the Teapot Dome scandal. Within living memory, a Senate committee uncovered evidence of presidential corruption related to Watergate. Neither corruption nor partisanship are new phenomena; there is no reason why the modern Congress should be unable to investigate the president on its own.
Regardless of whether President Trump attempted to obstruct justice, he never should have been supervising an investigation into himself. Policing the executive is a role for Congress, and, ultimately, the American people. We decided this two centuries ago, we rediscovered it two decades ago, and now we are discovering it yet again. Let this be the time we finally learn our lesson.