Presidential Power and the 'Ongoing Criminal Investigation' Constraint: Getting Away With Silence

Abstract:     
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.

Still, there is a particular tactic of presidential evasion, utilized by Clinton and Bush alike, that has been left undisturbed. 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.

This Article examines the "ongoing criminal investigation" constraint, and argues that its scope is limited and discernible. The constraint does not, for instance, extend to investigations (1) over which the President lacks control; and (2) which suggest that he or his associates committed improprieties. The practical impact of this conclusion is that Presidents are never externally constrained from publicly commenting on matters pursued by Special Counsels, which, by their very nature, are independent of the White House's control, and concern allegations of high-level executive branch malfeasance.

Keywords: Criminal Procedure, Prosecutorial Discretion, Faithful Execution Clause

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