Media reports on Kavanaugh’s views on executive power too quickly assume he would shield the executive branch during criminal investigations.
The Mueller investigation has been both praised and criticized. Much of the evaluation of the investigation assumes, rather than discusses, what the function of special counsel investigations should be. That is a problem. There are two basic approaches to the role of the special counsel and determining their relative importance is essential both to evaluating the Mueller investigation and achieving a reform of the institutions governing the special counsel. Here I want to explore these two different approaches and describe how they should be used to design a reformed institution for investigating and disciplining executive wrongdoing. In short, I believe that criminal prosecutions should be deemphasized, with reports to the public of executive wrongdoing becoming the primary focus.
The Criminal Prosecution and the Accountability Models
The two basic approaches to the role of the special counsel are the Criminal Prosecution Model and the Accountability Model. The Criminal Prosecution Model views the special counsel as an institution necessary to ensure that high executive officials have not violated the laws, especially the criminal laws. It is assumed that the normal investigation process does not work for such high officials, due to conflicts of interests. But while a special counsel is needed, no other changes in the normal criminal investigation process are required. The basic task for the special counsel is to decide whether or not to criminally prosecute the person being investigated.
Under the Criminal Prosecution Model, the special counsel would make a decision whether to prosecute or not. The special counsel would not release a report to the public explaining the reasons for his decision. Instead, if the special counsel concluded that no criminal prosecution was warranted, he would simply announce the fact, without any other explanation. In fact, saying more about the person being investigated would be regarded as unfair.
The Accountability Model, by contrast, views the special counsel as an institution necessary to determine what actions were taken by high executive officials. The principal goal is not to enforce the law against those officials. Instead, it is to reveal to the public and other institutions what happened, so that those officials can be held accountable through elections, removal, or impeachment.
Under the Accountability Model, the special counsel would release a report to the public that would indicate what actions he believes occurred. That report would try to be as objective as possible, so that the public and political institutions could hold the actors accountable. If there was uncertainty about the facts, the report would discuss that uncertainty. If there was uncertainty about the law, the report would explain the different legal possibilities. Under this model, the special counsel would not bring an enforcement action. The report, not the prosecution, is the key.
Strengths and Weaknesses of the Two Models
Each of the models has strengths and weaknesses. The Criminal Prosecution Model’s main strength is that it attempts to ensure that high executive officials are not above the law. The President and other high executive officials should not be immune from prosecution simply because they are in control of the government’s prosecutorial apparatus. The ideal that no one is above the law is an important one.
But there are significant problems with the Criminal Prosecution Model. One problem is that whether someone should be prosecuted for a violation of the criminal law is often far from clear. The prosecutor has great discretion over whether to bring criminal prosecutions. Recognizing this, the law establishes norms of prosecutorial discretion that are to govern criminal prosecution decisions. Unfortunately, these norms are unclear, so the prosecutor still retains tremendous discretion.
This discretion means that the special counsel’s incentives really matter. The problem is that the special counsel has strong institutional incentives to “get” the person he is investigating. Special counsels are often judged based on their success in convicting the big fish and can focus all of their time and resources on prosecuting that one person. Due to this aggressive approach, special counsel investigations often weaken an entire presidential administration and interfere with its ability to govern.
Another consequence of these incentives is somewhat perverse. The special counsel often prosecutes someone not for the original matter that was the focus of the investigation but for process crimes or other ancillary matters. In the case of Scooter Libby, Patrick Fitzgerald prosecuted him for perjury, even though Libby was innocent of the crime of releasing information about CIA employee Valerie Plame. Similarly, the Mueller investigation concluded that there was no conspiracy between the Trump campaign and the Russians, yet focused much attention on whether the President obstructed against this non-crime. In both cases, the innocence of the target as to the primary accusation was not revealed as soon as possible, but instead was kept secret to allow for the ancillary issue to be investigated or prosecuted.
Moving to the Accountability Model, it has the great strength of informing the public and the political branches of what actions were taken by high executive officials. This is an indispensable need in our democracy. The weakness of the Accountability Model is that the executive officials are not prosecuted for criminal wrongdoing. But if they are held politically accountable, that is a strong, if not a complete substitute. In the case of a cabinet official, a report that details political wrongdoing will usually lead to the person’s dismissal (or else the President’s party will pay a political price). In the case of the President, a damning report will harm the President’s popularity, which might lead to impeachment.
Reform by Rebalancing the Models
How then should we reform our institutions for monitoring and checking high executive officials? In my view, the solution is to cut back on the Criminal Prosecution Model and to reform the Accountability Model.
First, the Criminal Prosecution Model should be greatly de-emphasized. The system should continue to use special or independent counsels for investigations, including for criminal prosecutions. But the special counsels need to have their powers checked. The solution is not the Department of Justice Regulation that employs the Attorney General, who has a conflict, with overseeing the special counsel. Instead, the best solution is to appoint other officials as a check on the office.
But as important as supervising the special counsel is the need to set a new standard for prosecution. Criminal prosecutions should not be undertaken unless it is clear that the person violated the criminal law. That means that the facts strongly support the conviction and the law clearly indicates that the action is criminal. This would not allow for many prosecutions, but it would permit them in the most important cases.
In the case of a sitting President, criminal prosecutions should not occur at all. While existing executive branch interpretations prohibit such prosecutions on constitutional grounds, I favor such a bar on policy grounds. Such prosecutions are unnecessary and dangerous. They are unnecessary because the attention devoted to the President means that a report detailing his wrongdoing will force him to pay a political price and might lead to impeachment. They are dangerous because a nationally elected President should not be displaced by a prosecution brought by even by a properly supervised prosecutor.
When criminal prosecution does not occur, the main focus will be the prosecutor’s report.
The report should not be seen as the special counsel’s view of what happened, but as an impartial account written from the perspective of the public interest. The report should lay out the facts and the law, making sure to discuss when the facts and law are clear and when they are uncertain. The report should also discuss issues of prosecutorial discretion, indicating how they cut in favor and against prosecution. The report should also include the response of the person who was investigated.
With the release of the report, the public and the political branches can decide what to do about the matter. While some may be unhappy with a system that does not criminally prosecute those they regard as wrongdoers, such prosecutions are not healthy except in the clearest of cases. The English used to employ an impeachment process in which a high executive official might lose not only his office, but also his head. The Framers wisely rejected that system. In a liberal democracy, if the information of wrongdoing is disclosed to the public, and the public can address it through the ballot box and impeachment, that is more than sufficient. It is the optimal result.