What is the Best Model for Investigating Presidential Wrongdoing, Today?

Abstract

The roundtable discussion, Special Counsel Investigations and Legal Ethics, of which this essay is a component, could hardly have raised a more urgent issue for American public life in our time. On May 17, 2017, only four months into the presidency of Donald Trump, and shortly after President Trump's dismissal of F.B.I. Director James Comey created a crisis of confidence in the ability of the Justice Department to investigate, fully and fairly, alleged collusion between the Trump campaign and Russian officials prior to the 2016 election, the Justice Department appointed Robert Mueller III as Special Counsel to conduct the investigation.

This action did not alleviate the political crisis, which has continued in various manifestations to the time I am writing this essay in Spring 2019. Although in public statements at the time, President Trump evinced no criticism of Mueller's appointment - he insisted that a thorough investigation would show that no collusion occurred and urged that the matter be speedily concluded - the President grew increasingly critical of the Mueller investigation as time passed. On August 1, 2018, for example, President Trump, through a tweet on Twitter, urged Attorney General Jeff Sessions, who had recused himself from overseeing the Russia investigation, to "stop this Rigged Witch Hunt right now."

It is not my purpose in this paper to recount all the political vicissitudes of the Mueller investigation. Nor is it my purpose to conclude anything at all about possible wrongdoing by President Trump. Instead, my goal is to evaluate the different approaches that might be taken with regard to investigating alleged wrongdoing by a President. Which of the various models we can realistically imagine is best for that purpose? My effort can be viewed as an update of, and further engagement with, a similar investigation by Thomas W. Merrill in 1999, on the occasion of the then-looming expiration of the Independent Counsel Act.4 How has today's toxic political environment impacted the question that he addressed?

Keywords: United States - Department of Justice, United States - Office of Special Counsel, Special prosecutors, Presidents, Governmental investigations, United States - Office of Independent Counsel, Impeachment, constitution