Responding to Official Misconduct
Davidson, Michael, Stone, Elaine W., Brookings Review
Where Should Responsibility Lie?
From the Watergate crisis that led to the resignation of Richard Nixon in 1974 to the demise of the Independent Counsel Act last June, the nation conducted a quarter-century experiment involving official misconduct and the criminal justice system. The primary question as whether the public can have confidence in the criminal justice system if the attorney general is responsible for investigating and prosecuting high officials of his or her own presidential administration. The answer--thought to be no--spawned a host of detailed procedural questions about the mechanism for appointing outside counsel, about their work, and about controls on them.
The experiment also raised a larger question. Were a growing number of issues about public affairs and public officials being routinely routed through the criminal justice system when they could more sensibly be handled otherwise? Should, for example, issues in the Reagan-era Iran-Contra affair have been treated as foreign policy questions for elected officials to debate rather than crimes for prosecutors to investigate? In the cases of Bill Clinton's Agriculture Secretary Mike Espy, accused of receiving gratuities from regulated companies, and Housing Secretary Henry Cisneros, charged with making false statements during his nomination process, should the political sanction of removal from the cabinet have been sufficient given the nature or degree of their misconduct? For the criminal investigation into whether President Clinton committed perjury during a civil deposition, should civil contempt sanctions (as ultimately occurred) in the civil case have been the preferred alternative from the outset?
This issue was raised directly by a bipartisan project sponsored by Brookings and the American Enterprise Institute and chaired by former Senate leaders Bob Dole and George Mitchell. The project issued a report recommending procedures for appointment of special counsel by the attorney general, to take effect after the Independent Counsel Act expired. But it also noted that "a vital part of the task of enhancing long-term public confidence in the criminal justice system, as it applies to high officials, lies in reexamining what that system is asked to do. We believe that too often our political process turns to the criminal justice system to accomplish tasks that are more suitably addressed in other ways. Civil or administrative enforcement of laws that apply to public or campaign officials, or political accountability through congressional or electoral processes, may provide the most fitting responses to many breaches."
Who Should Respond to Official Misconduct Charges?
This is an opportune moment to pursue that discussion. Because no one now knows who will control the executive branch after the 2000 election, broader issues can be discussed without appearing to favor a particular president or party. In this moment of comparative quiet, it is possible to begin, at least, with a basic question about inquiries into the conduct of public officials. To what ends should those inquiries be conducted? The answer to that question could help determine who should conduct them.
One caveat. Although the Constitution assigns some responsibilities exclusively to one or another branch of government, in general our legal and political system resists rigid institutional assignments. In evaluating where to lodge responsibility for an inquiry, it is better to think of guideposts rather than barriers or mandated sequences. Our branches of government, in combination with a vigorous press, often interact and pass initiative from one to another. The press may expose a matter sufficiently to stimulate congressional inquiry, which may in turn lead to a criminal investigation. Or a criminal investigation may spur other inquiries. In some situations, more than one institution may have a legitimate avenue to explore. In others, it is worth questioning whether multiple, overlapping inquiries, with their cost in time, resources, and burden on the participants, serve the public good. …