Responding to Official Misconduct: Where Should Responsibility Lie?

Elaine W. Stone and Michael Davidson
Michael Davidson Counsel, The Constitution Project;<br> former Senate Legal Counsel

December 1, 2000

From the Watergate crisis that led to the resignation of Richard Nixon in 1974 to the demise of the Independent Counsel Act last June, the nation conducted a quarter-century experiment involving official misconduct and the criminal justice system. The primary question was whether the public can have confidence in the criminal justice system if the attorney general is responsible for investigating and prosecuting high officials of his or her own presidential administration. The answer?thought to be no?spawned a host of detailed procedural questions about the mechanism for appointing outside counsel, about their work, and about controls on them.

The experiment also raised a larger question. Were a growing number of issues about public affairs and public officials being routinely routed through the criminal justice system when they could more sensibly be handled otherwise? Should, for example, issues in the Reagan-era Iran-Contra affair have been treated as foreign policy questions for elected officials to debate rather than crimes for prosecutors to investigate? In the cases of Bill Clinton?s Agriculture Secretary Mike Espy, accused of receiving gratuities from regulated companies, and Housing Secretary Henry Cisneros, charged with making false statements during his nomination process, should the political sanction of removal from the cabinet have been sufficient given the nature or degree of their misconduct? For the criminal investigation into whether President Clinton committed perjury during a civil deposition, should civil contempt sanctions (as ultimately occurred) in the civil case have been the preferred alternative from the outset?

This issue was raised directly by a bipartisan project sponsored by Brookings and the American Enterprise Institute and chaired by former Senate leaders Bob Dole and George Mitchell. The project issued a report recommending procedures for appointment of special counsel by the attorney general, to take effect after the Independent Counsel Act expired. But it also noted that “a vital part of the task of enhancing long-term public confidence in the criminal justice system, as it applies to high officials, lies in reexamining what that system is asked to do. We believe that too often our political process turns to the criminal justice system to accomplish tasks that are more suitably addressed in other ways. Civil or administrative enforcement of laws that apply to public or campaign officials, or political accountability through congressional or electoral processes, may provide the most fitting responses to many breaches.”

Who Should Respond to Official Misconduct Charges?

This is an opportune moment to pursue that discussion. Because no one now knows who will control the executive branch after the 2000 election, broader issues can be discussed without appearing to favor a particular president or party. In this moment of comparative quiet, it is possible to begin, at least, with a basic question about inquiries into the conduct of public officials. To what ends should those inquiries be conducted? The answer to that question could help determine who should conduct them.

One caveat. Although the Constitution assigns some responsibilities exclusively to one or another branch of government, in general our legal and political system resists rigid institutional assignments. In evaluating where to lodge responsibility for an inquiry, it is better to think of guideposts rather than barriers or mandated sequences. Our branches of government, in combination with a vigorous press, often interact and pass initiative from one to another. The press may expose a matter sufficiently to stimulate congressional inquiry, which may in turn lead to a criminal investigation. Or a criminal investigation may spur other inquiries. In some situations, more than one institution may have a legitimate avenue to explore. In others, it is worth questioning whether multiple, overlapping inquiries, with their cost in time, resources, and burden on the participants, serve the public good.

Inquiry by the President

When should the president, aided by inquiries within the executive branch, have principal responsibility for responding to possible official misconduct?

Some critics faulted the independent counsel system for diluting the president?s responsibility over his branch by requiring judicial appointment of prosecutors and by insulating prosecutors from effective executive branch control. The constitutional pedigree of that argument goes back to the Constitutional Convention of 1787, when the framers rejected a proposal to establish a plural executive (essentially a committee of three members) who would share the executive power. Instead, they provided that “the executive Power shall be vested in a President of the United States of America,” a single person. Delegates to the convention who favored a single executive emphasized that placing the executive power in one person would enhance “responsibility,” which would be diminished in a plural executive.

One area of special presidential responsibility is over the principal officers of government who make up the president?s cabinet. The impeachment of President Andrew Johnson was fought over the power of Congress to use the Tenure of Office Act of 1867 to insert the Senate into the process for removing holdover members of Lincoln?s cabinet. The court?s later invalidation of an 1876 replica of that act was based in part on “the political responsibility thrust upon the President” by the Constitution that enables him to remove appointees “[t]he moment that he loses confidence in the intelligence, ability, judgment or loyalty of any one of them.” Myers v. United States, 272 U.S. 52, 133?34 (1926). Although the president?s removal power has since been limited in the case of various independent agencies or officials, that power was fully applicable to every executive branch official for whom an independent counsel was named during that system?s life.

The importance of confidence in an appointee?s “judgment,” to use the court?s word, and the harm to the president and to the public from the loss of it, help identify the president?s responsibility to act in response to possible misconduct by officials over whom he has removal power. In those circumstances, the main imperative may not be remedial legislation or punishment through prosecution. As Alexander Hamilton wrote in The Federalist, No. 70, “Man, in public trust, will much oftener act in such a manner as to make him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment.” Here, placing prime responsibility on the president to insist on accountability accords comfortably with the Constitution?s design. While Congress cannot oust a cabinet official by a “no confidence” vote, the president can?by a vote of one.

In circumstances where official misconduct is systemic, as in the 1920s Teapot Dome affair, the size and extent of the corrupt personal gain and public harm may necessitate a range of corrective measures. There, demanded resignations, congressional inquiries, criminal prosecutions, and civil litigation were usefully combined to put matters right, seek punishment of offenders, and restore confidence. But when, as with some independent counsel inquiries, the gist of the matter is more individual than systemic?one person?s lack of candor within the executive branch or another?s indifference to conflict of interest standards or other ethical norms?removal from office by the president might suffice. Indeed, in such cases, there may be good reason to frame the issue as ethical accountability rather than criminal liability, lest acquittals or plea bargains in uncompelling cases blur a needed message about ethics that could be forcibly delivered by removal.

Inquiry by Congress

The Supreme Court, drawing on American history before and after the Constitution was adopted, has identified broad boundaries for investigations by Congress. Although no constitutional provision expressly grants Congress the power to investigate, the Court has held unequivocally that “the power of inquiry?with process to enforce it?is an essential and appropriate auxiliary to the legislative function.” McGrain v. Daugherty, 273 U.S. 135, 174 (1927). That proposition leads to the central question whether the subject of a congressional inquiry is “one on which legislation could be had.” Id. at 177. Within those wide parameters, the Court has found that investigations may include “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.” Watkins v. United States, 354 U.S. 178, 187 (1957). Outside those parameters, the lawmaking branch has powers that go beyond passing laws, such as the Senate?s advise and consent powers for nominations and treaties, the power of each House to discipline its members, or the power of the House to impeach. Each may require investigations into facts.

The Court has noted that “[m]ost of the instances of use of compulsory process by the first Congresses concerned matters affecting the qualification or integrity of their members or came about in inquiries dealing with suspected corruption or mismanagement of government officials.” Id. at 192. For the latter, the Court has made clear that the power of Congress to investigate also “comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.” Id. at 187.

Yet there are important limits on the power of Congress to investigate. Implied constitutional limits accompany the implied power of inquiry: “broad as is this power of inquiry, it is not unlimited.” Congressional committees have “no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.” As the Court has elaborated, “No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ?punish? those investigated are indefensible.” Id.

How may these principles guide congressional decisions whether to undertake investigations into possible misconduct of executive officials or to defer, at least temporarily if not completely, to a president?s administrative handling or to a criminal prosecution? Some of Congress?s “probes into departments of the Federal Government to expose corruption, inefficiency or waste” may result in legislation. Others may induce the president to take corrective action. In either event, as captured by the Court?s phrase, “probes into departments,” the powerful tool of congressional inquiry usually works best when used to bring to light systemic, not individual, misconduct. Congressional responsibility to investigate is certainly indicated when issues about the misconduct of high officials indicate a deficiency in standards, or in systems to implement them, that may warrant remedial legislation.

Inquiry within the Criminal Justice System

The ambit of federal prosecutors is narrower, by far, than the power of Congress to investigate. Their role also serves a different purpose than the president?s power to remove unfaithful executive branch officials. Although they are under executive branch aegis, prosecutors are governed by special norms that include the nonpolitical values of the judicial branch in which grand juries function and trials take place.

Where do inquiries by prosecutors fit within the spectrum that includes presidential inquiries and the power of Congress to investigate? Of course, apart from special issues relating to the president while serving in office, our legal traditions make clear that executive branch officials may be held criminally accountable for their misdeeds. The Constitution?s impeachment clause specifically instructs that officers of the United States who are convicted by the Senate upon impeachment by the House shall “nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Prosecutors do not correct failures of political responsibility or ethical lapses within the executive branch. Nor do they establish records for remedial legislation by Congress or report to the public, as commissions or congressional committees might. Indeed, the public reporting responsibility of independent counsels was a major ground for criticism of that law.

As for subject matter, while Congress may inquire into any subject on which legislation might be had, prosecutors inquire only into subjects on which legislation has been had. And they may inquire only into matters for which Congress has already provided a criminal law remedy. They do not have to begin with knowledge that an offense has been committed or that a particular person has committed it. Using the power and function of the federal grand jury, prosecutors may “inquire into all information that might possibly bear on its investigation until [the grand jury] has identified an offense or has satisfied itself that none has occurred.” United States v. R. Enterprises, 498 U.S. 292, 297 (1991). Still, while their net may be cast wide, the ultimate question for prosecutors is whether an offense has occurred (and, of course, who the offender is), which limits prosecutors to subjects established in law.

However, a determination that a matter may be prosecuted does not always mean it should be prosecuted. How should that judgment be made? In choosing whether to pursue criminal charges, prosecutors must exercise discretion, the curtailment of which was a prime deficiency of the Independent Counsel Act. With the act?s demise, our federal criminal justice system will again rely on federal prosecutors, with ultimate responsibility in the attorney general, to decide whether to prosecute high officials. As ever, their judgment should be informed by law and experience, by proportionality, by competing demands for time and resources, and by common sense.

To a large extent, prosecutors may be disinclined to include in that calculus whether Congress has taken the initiative to investigate or whether the president has used his removal power to address an official?s misconduct. The public interest, however, may well be served by a broad view that considers whether the United States as a whole (which as the courts have recognized is a sovereign consisting of three branches) has rectified a public problem through the action of one or several of its branches. Without taking sides on any one of these issues?political corruption in Watergate; misuse of foreign affairs powers in Iran-Contra; campaign financing in the last election; or, most recently, possible failures to disclose in Waco, including between components of the Department of Justice?one can fairly question whether the public?s overriding interest lies more in a public inquiry that forms the basis for remedial action for times ahead than in an adjudication of criminal charges.

The Next Time

All of which is to say that when the next scandal is upon us?and the cry is “fire him,” “appoint a committee to investigate her,” “prosecute them,” or all of the above?it would be worth pausing for a moment to ask two important and related questions. What are our objectives? Which of our institutions is best suited to attain them?