William & Mary Law Review


Asked by British journalist David Frost whether the President of the United States has the ability to authorize illegal acts when he believes such action is justified, Richard Nixon infamously replied: “Well, when the President does it, that means it is not illegal.” A majority of Americans disagreed with the former President’s assessment. But the question remains: If the President is theoretically capable of breaking the law while in office, what is the best way to determine whether a crime has actually been committed? This question has forced lawmakers to attempt to reconcile various investigatory mechanisms—all differing in their independence from presidential interference—and the constitutional separation of powers. Previous attempts to resolve the problem by assigning investigations to the Department of Justice (DOJ), from the independent counsel system to the current DOJ special counsel, have attracted vociferous criticisms on constitutional grounds. Special counsel investigations have also traditionally lasted for years, with the primary form of public disclosure coming in the form of criminal indictments. So if the public feels that an investigation is unwarranted or politically motivated, there is no way for them to register their disapproval. In a highly partisan political environment in which investigations of the executive are likely to continue indefinitely, it is necessary to devise a more durable solution.

This Note proposes an alternative solution to the challenge of conducting executive investigations, one that keeps in mind the dual goals of sufficient investigatory independence and sufficient public accountability. Rather than continued efforts to bureaucratize investigations of the executive by entrusting them to career prosecutors, Congress should instead shoulder the primary responsibility for initiating investigations and conducting executive oversight. This role would be consistent with the Supreme Court’s constitutional interpretation and Congress’s own historical practice, and would help to insulate future investigations from the possibility of executive interference without infringing on the President’s constitutionally delegated authority over all members of the executive branch. Such an approach would also be the fastest way to bring misdeeds to light, thereby serving the public interest in disclosure and enhancing executive accountability at the ballot box.

This Note will proceed as follows. Part I will describe previous attempts to institutionalize a formalized system within the executive branch for investigations of executive misconduct and the constitutional and practical problems inherent in each. Part II will describe the history of successful congressional investigations that inspired the proposed solution—relocating investigative authority from the executive branch to Congress—and the values of investigatory independence, constitutional faithfulness, and public accountability that such an approach would promote. Part III will address the strongest counterarguments, including concerns over constitutionality, partisanship, and justice.