Should Congress Adopt a New Independent Counsel Statute?  The Constitutional Issues

One of the principal concerns about the Obama Administration are the scandals and the claims that it is violating the law.  And sadly the congressional investigation process does not seem to be adequately doing its job.  Thus, it is worthwhile thinking about alternative institutions.

The principal method used back in the 80s and 90s was the independent counsel (IC). Unfortunately, the independent counsel was both unconstitutional (for the reasons discussed in Justice Scalia’s dissent in Morrison v. Olson) and subject to serious problems. But while the original IC statute had these problems, that does not preclude employing a reformed IC to investigate the executive branch.

Let’s start with the unconstitutionality of the original IC. Under the old regime, the IC was not subject to the direction of the President and therefore in my view was unconstitutional. In addition, the IC was appointed by a court on the ground that he was an inferior officer, even though he was clearly in my view a principal officer who could be appointed only by the President with the advice and consent of the Senate.

Both of these problems are rectifiable. First, the IC could be made formally subject to the direction of the President. The statute might provide that the IC is subject to the direction of and removal by the President, but that the Congress believes that presidential direction of the IC would be problematic as a policy matter and requests that the President not direct the IC. The statute might also require the IC to disclose to the public if the President gave him a direction and to keep notes of what the direction was. It is likely under this arrangement that the President would not give any orders to the IC, because he would pay a significant political price for doing so.

Second, the IC should be treated as a principal officer who is appointed by the President with the advice and consent of the Senate.  This creates an issue, since the President might nominate someone who is a loyalist and will not vigorously investigate his administration. To guard against this, the Senate would have to confirm only independent nominees.  If the Senate were controlled by the party opposing the President, this would be likely to occur.  If the Senate were controlled by the President’s party, then it is possible that they would confirm a less than fully independent IC, but by no means certain since the Senators might not want the political damage from appearing to protect improperly the President.  To guard against this, the statute could require that the IC be a member of the party opposing the President. (Alternatively or perhaps in addition, the statute could provide that a qualification of being an IC is to be independent of the President and the IC should not have any significant connections with either the President, his administration, or his party.)

Through these mechanisms, the IC would be constitutional, but would retain significant independence to conduct his investigation. It is true that the IC would not be as fully independent of the President as was the IC under the old regime.  But the desire to get 100 percent independence rather than the 90 percent my proposal provides is what rendered the old statute unconstitutional.

Next time, I will address some of the policy issues with the IC.