Presidential Crimes Matter
UCLA Law Review Discourse (Forthcoming)
18 Pages Posted: 17 Aug 2020
Date Written: August 11, 2020
The resignations of United States Attorneys Geoffrey Berman and Jessie Liu from their respective positions in the Southern District of New York and the District of Columbia, and Attorney General William Barr’s and President Donald Trump’s persistent undermining of Special Counsel Robert Mueller’s Russian interference and obstruction of justice investigations and prosecutions are clarion calls to reform the process by which the executive branch criminally investigates itself. They vividly exemplify the inherent real and perceptive conflicts that attend to executive branch investigations of alleged wrongdoing within its ranks.
But there is another critical circumstance—the Special Counsel regulations—that has been largely overlooked and has been grossly underappreciated in the public discussion about undue executive branch influence. These regulations are foundational, their impact is deeply consequential, and absent meaningful reform there is little to prevent a repeat of such executive branch interventions now and in administrations to come. Presidential crimes matter, as do other executive branch crimes, and a fair and impartial structure must be implemented to effectively respond to the challenge of addressing such alleged wrongdoing.
This essay will discuss these regulations and illuminate how they compromise not only the integrity of investigations of executive branch wrongdoing but also the public trust. In so doing, this essay will review a high-profile occurrence during the Mueller investigation and explain how the regulations arguably hamstrung Muller during this process. It will also propose a two-pronged legislative remedy that calls for a return to the former Independent Counsel Statute (“ICS”), with a significant modification. And, finally, it will explain why this approach is consistent with Morrison v. Olson, the Supreme Court decision that upheld the constitutionality of the former ICS.
Keywords: executive branch, president, Trump, prosecution, criminal law, investigation, independent counsel statute, special counsel regulations
JEL Classification: K14, K19
Suggested Citation: Suggested Citation