An Independent Counsel for Civil Violations

In the past, I have written a significant number of posts about how the independent counsel procedure might be improved and employed.  See, e.g. here and here.  Here is another one.

One problem with the independent counsel is that it focuses on criminal violations.  The IC focuses on whether an individual violated the criminal law, should be prosecuted, and imprisoned.  Sure some people violate criminal statutes and should be punished.  But it is often more important to determine whether laws were violated than to put a politician in jail.  Yet, the IC does not investigate the former.

There is a way that this focus on criminal prosecution could be avoided.  Congress could establish an IC with the authority to investigate civil violations by high executive branch officials.  Congress could then pass a statute that makes violation of a variety of federal laws and regulations that govern executive branch officials to be a civil violation.  The sanction for violating this statute might then be removal from federal office and a temporary or permanent disability from serving in another office.  One might also disable the person from serving as a lobbyist.

This system would serve many functions.  It would allow for the investigation not of criminal violations, but of civil violations.   Thus, an investigator could determine whether the law was followed or broken.  Moreover, it would not need to exercise prosecutorial discretion so as to avoid sending someone to jail for an action that did not warrant it.  Instead, the investigator could focus on whether the laws were violated.  High government officials would then become accountable to the law, without the possible unfairness of their being sent to jail because of a political disagreement.

In addition to the prosecution of a civil violation, this system might also be employed to determine for the public whether laws were violated.  At the end of the investigation, whether or not the prosecutor had decided to bring an action, the evidence might then be reviewed by an independent official whose job it would be to review the evidence in an impartial way to determine what had happened.  In this way, one would not simply have a judicial determination, but a report that would be available to the public and Congress.

This proposal raises many questions.  For example, might it be unconstitutional as an infringement of the impeachment power?  But if it was constitutional, it would have the promise of introducing more accountability for government officials and transparency about the legality of government behavior.

Reader Discussion

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on June 06, 2017 at 12:26:52 pm

Infringement of the impeachment power? Mostly, seems constitutional to me (as long as it didn't apply to the President or Vice-President or any member of Congress), the questions would be how that last step would occur. It sounds like you would need a full civil trial to determine the facts and adjudicate what the result would be. The accused would need to present their own evidence. You could probably do it through an Article II court (wouldn't need to be a life tenured full Art. III Judge). In the face of a violation found by the President or Vice-President or any member of Congress, the case would have to be presented to the House of Representatives for impeachment hearings.

The questions I would have are (1) would be how do you select who this person that will be investigating is? (2) what powers would they have to collect information/documents/testimony? (3) How would they be controlled and removed from office if they overstep their authority?

Ideally you would want the party not in power to select the person, but significantly limit what they are allowed to do. The minority is likely to select the most aggressive and effective person they can to find corruption in the administration and bring such a case. But you don't want the process itself to become the punishment, nor allow the person to leak damaging information to the press rather than focusing on violations of the law. So the person would probably have to be prohibited from speaking to anyone outside of the fair process of evaluating the evidence up to some kind of minimum level of plausibility.

Maybe have a kind of grand jury evaluation where a random group of people are convened to review the evidence and decide if there is probable cause that the law was violated. They would be sword to secrecy (in case such an accusation in unfounded). Any information discussed on the case prior to the approval of the grand jury would itself be a crime by the independent counsel.

Then you would have to limit the power to subpoena documents and testimony. Maybe have a limited number of requests per month and a way to appeal potentially unreasonable requests.

Then you have to deal with the potential problems of process crimes. Would lying to this IC be a crime? If so could the IC try to remove anyone who lied to him? A tiny misstep by a government official (forgetting something) could lead to the substantial penalty of being banned from public office. Would it be considered obstruction of justice? What if people refuse to turn over the documents requested? How would enforcement work?

Who controls the IC if they do something they shouldn't?

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Devin Watkins
on June 06, 2017 at 20:04:31 pm

If we look at other countries, for instance in Mexico, a government official who botched the procurement of a Metro line in Mexico City (the alignment of the track changed, meaning tighter curves in some spots, but the specs for the railcars were never changed, which resulted in a series of problems) was fined and disbarred from public service for a significant number of years. I have always wondered why the negligence of government officials could not be punished in ways similar to the UCMJ, including reductions in grade and pension credit, without necessarily sending officials to jail. Many acts deserve a reprimand with teeth, but nor necessarily a criminal sanction.

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Doug Wenzel

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.