Academic journal article The William and Mary Bill of Rights Journal

The "Ongoing Criminal Investigation" Constraint: Getting Away with Silence

Academic journal article The William and Mary Bill of Rights Journal

The "Ongoing Criminal Investigation" Constraint: Getting Away with Silence

Article excerpt


The presidencies of William J. Clinton and George W. Bush are in many ways kindred. It seems certain that both will be noted by historians for their determined and mechanistic evasions of public scrutiny. The misleading insinuations, failed memories, perjuries, obstructions of justice, and novel assertions of executive privilege have been exposed sharply and criticized roundly by Congress, academics, and the press.1 Still, there is a particular tactic of presidential evasion, utilized by Clinton and Bush alike, that has been left undisturbed.2 This is the White House's increasingly regular practice of claiming that the President and his advisors are "constrained" from publicly commenting on particular matters due to the existence of an "ongoing criminal investigation." In many minds, the invocation of this constraint - no matter the circumstances - reflexively transforms a White House stonewall into an instance of "responsible" and "principled" presidential restraint.3 Perhaps not surprisingly, both administrations have failed to address even the most basic issues surrounding this constraint. Issues such as: What are its origins? Are these origins legitimate? And how far does the constraint reach? (The Bush administration, at one point, went so far as to claim that the very assertion of the constraint barred the President from discussing such foundational issues.4)

One point should be emphasized from the outset. The Presidents have not simply claimed that they elect to refrain from public comment. Of course, any person, public official or not, can elect to ignore questions from the press so long as they are prepared to pay the political and social consequences of elective silence.5 The Presidents have instead attributed their silence to an external constraint on their freedom to make a public comment. To put it another way, it is the difference between claiming that one may remain silent and claiming that one must.

The plausible justifications for an "ongoing criminal investigation" constraint on presidential commenting seem to be, at casual glance, wide-ranging. One might intuitively think of the rules maintaining grand jury secrecy,6 the constitutional obligation to faithfully execute the laws,7 or the pardon power.8 One might also think of prevalent social norms, such as the belief that it is unfair to assign guilt in a public forum without due process of law. Each of these justifications is legitimate. Yet, importantly, the force of each is highly dependent on context. A particular justification, for instance, might apply fully to Department of Justice (DOJ) investigations, partially to federal trials, and not at all during the appeals processes. A different justification, however, might apply partially (yet never fully) during investigations, trials, and appeals.

The current ambiguity surrounding the "ongoing criminal investigation" constraint undoubtedly impairs democratic self-governance. The relationship between the public and the President is widely understood as one of principal and agent.9 In the most basic form of this model, the public delegates discretionary power to wellmotivated Presidents and withholds or withdraws discretion from ill-motivated ones.10 Working within this framework, the ill-motivated Presidents, when faced with an empowered press corps, are boxed into the costly trilemma of disclosing ill motives, lying about ill motives, or evading the topic of ill motives.11 Importantly, the ill-motivated executives can escape this trilemma by citing to an external constraint on their freedom to publicly comment. Such constraints make evasion easier to disguise, which dissipates the force of the trilemma and causes broad swaths of information to be unnecessarily shrouded from the public. It is therefore imperative that the scope of the external constraints be narrowly tailored to the discrete executive obligations that called for their design.

This Article seeks to arm the public, and the press corp in particular, with an analytical framework by which they can evaluate the legitimacy of future invocations of the "ongoing criminal investigation" constraint. …

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