Media reports on Kavanaugh’s views on executive power too quickly assume he would shield the executive branch during criminal investigations.
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.