Proposed: Special Governmental Ethics Investigative Unit

Great Debates
1

I was just reading about Brett Kavanaugh’s recommendations for how best to investigate the President.

As I see it, there are a few known issues with investigating the President:

  1. The President has power over the Executive branch, which can hinder the ability of the investigator - e.g., by appointing someone favorable to himself, firing the person, etc.
  2. The investigator can experience “mission creep”, expanding the scope of his investigation so far beyond the initial starting point that it all becomes a bit silly.
  3. An investigation of the President takes precious time away from the Leader of the Free World and his aides, which could generally be better spent fighting terrorism, implementing strong health care, etc.
  4. The position has good leap-off potential for eternal fame, leading to further mission creep and leaks that are liable to further hinder the ability of the Executive to do his job.

Now most articles that I have read on the subject, including the one today, mostly focus on items #2 and 3 and the balance between allowing an investigator do his job versus letting the President do his.

No one ever seems to address #1 nor 4 in any particular proposal, presumably because the popular discussion of the topic got waylaid by the Ken Starr investigation and hasn’t gotten off that track yet. But, minus considering #1 and 4, I think it’s unlikely that any suitable answer can really be found and, I would suggest, that dealing with #4 could well solve much of the issues that plagued Ken Starr.

I will make a specific proposal, and then discuss how I believe it solves the above issues.

The Special Governmental Ethics Investigative Unit

  1. The unit is tasked with policing the Supreme Court Justices, House Representatives, Senators, the President, and the President’s cabinet.
  2. They will investigate any and all campaign financing issues, foreign efforts to manipulate any of the above members of government, and any major crimes alleged to have been perpetrated.
  3. Further, the steps to be taken in case of each category of crime and perpetrator would be outlined as part of the unit’s directive. E.g., a Senator might be indicted, where the President would simply have a report issued, if the crime is X, whereas if the crime is Y then both would be indicted or whatever else.
  4. External to this, the unit will also be tasked with ensuring compliance with the Foreign Agent Registration Act.
  5. The director of the unit will be appointed for 10 years by the President, with the 2/3rds consent of the Senate.
  6. The director of the unit may never serve any role in the Federal government after serving out his tenure.

So, how this addresses the four concerns about a Presidential investigation:

Executive Appointment: By making this a long-standing and permanent role, that also would investigate Congress, there would be strong guarantees that an impartial and trustworthy candidate has been selected and is largely free of the influence of the President (similar to the Director of the FBI).

Mission Creep: By making this a permanent organization with a wider scope of concerns than simply investigating the President, the matter of reasonable allocation of resources and a steady budget from year to year would both push back on spending too much effort on any one investigation - even when it’s the President - simply because time, people, and money are constrained and there are other potential bad actors in the world.

Presidential Time Commitment: When we say that the President’s time matters, really what we mean is that it shouldn’t be hampered for just any ol’ thing. But clearly there are cases where the gravity of the offense should supersede such a concern. By specifying the class of crimes and other concerns (like foreign manipulation) that count as “sufficiently grave”, Congress would be able to balance these concerns.

Politicization of the Role: As part of the Executive branch, the standard guidelines of investigative secrecy would be maintained (versus, for example, attempting to set up a Congressional committee to investigate such matters). By depriving the Director of any ability to move to future roles in the government, she would have no motive to investigate any particular subject or person beyond the merits of the case. And, by having high standards for appointment to the role of the Director, it can be presumed that high standards of investigative secrecy would be maintained within the unit.

Further Commentary
Obviously, much of this can be done today by the FBI and some of the standards are the same. But I think it makes more sense to split it out into a separate (significantly smaller) organization.

The FBI is an apolitical organization with a primary focus on protecting the average American. It directly serves the President and institutes his mandate, as to what should be prioritized or deprioritized. For the proper and simple functioning of the FBI, keeping that relationship friendly makes sense. With an independent unit that is purely antagonistic to those in government, there would never be any ambiguity about how to interface. Obviously, the Unit would be dependent on the FBI and CIA to forward them any encountered intelligence that may be relevant, but those organizations would then be clean of any political fallout from those revelations.

At the moment, the FBI already has two separate internal branches operating under fairly different legal guidelines, one for domestic crime and another for national security/counter-terrorism intelligence tracking. Since the class of crimes and how to respond to them would vary slightly when it comes to the President, and others, it would create a third bucket for the FBI, effectively rendering this as another internal branch - except one that would be quite small and easily lost. It makes more sense to split it out rather than have it become an orphan org within the FBI.

The FBI has a history of political machination. Once given a mandate to investigate the President and the Legislature, it may become tempting to use any information gleaned to further the purposes of the organization or the Director. With that sort of risk, it makes sense to vet the director for this position with that specific topic in mind, and to ensure that neither the director nor the organization would have any other interests (like future political ambitions or ensuring that the Supreme Court back them against some slimeball criminal) that would lead it to use the collected information for blackmail purposes.

2

An interesting proposal. So, some questions to begin with -

Does this include their respective staffs, or just those officials?

Alleged by who, and what level is necessary to trigger an investigation? Do they need reasonable suspicion, like a cop?

Wouldn’t this have to be up to a grand jury? I don’t know if you can just say “the Special Ethics Unit said he was guilty, so you have to charge him with crimes X, Y, and Z”.

How is he or she removed from office, if that becomes necessary?

Just elected office, or any office? Otherwise this is pretty much a career ender.

But this is under the executive branch, although it investigates the Supreme Court, Congress, and the President as well, correct?

Regards,
Shodan

3

I think this person being un-fire-able by the president, or by anyone else, is probably an important part of the picture. It would have to be a position that can’t be swept out of the way.

The job seems to be inherently a political career-ender. I’m guessing the person would have to go into some other field afterwards.

4

My intention was just the individuals, since staff could probably be policed by regular police and the FBI without significant worry of political pressure or political misuse, and it seemed like narrowing the focus would help to keep the unit focused and small enough to keep leaks down.

I’m not married to either answer though.

I believe that reasonable suspicion comes in once you want to start questioning a person or looking through their personal belongings. But I believe that it is legal for the police or the FBI to do a look at public information and sources to see whether a report of malfeasance lasts through a sniff test.

Anyways, my intention would be that the unit have the same basic standards as the FBI in this regard. My understanding is that they will instigate at least a sniff test based on anything that should trigger one, so long as the Director thinks that it is merited and has a resource free to do so. And so that’s what I was envisioning, but I may be incorrect on that front.

In cases where the Unit is expected to prosecute the crime, then it would follow general practices for doing so. In the case of the President (which, I believe, is the only case where the handling might be different due to some implicit prosecutorial immunity) I believe that the current standard (for the Executive branch) is wholesale immunity while in office but that it’s all a bit vague since there isn’t much precedence and almost no law on the matter.

My expectation and hope would be that the creation of the Unit would create clarifying law. It’s silly, for example, that a prosecutable case of raping a minor would have to be held off for (potentially) 8 years. Jaywalking is one thing, but that’s quite another. Congress should clearly state what categories of crimes trigger which types of handling and what the burdens of evidence need to be like to trigger those events.

Since this would still all need to be Constitutional, my expectation would be that they would write something to the effect that minor crimes would be suppressed and then re-issued as a referral to the relevant agency once the President left office. But in the case of major crimes, broken campaign statutes, or undeniable evidence of effective foreign influence then those and the underlying evidence would be reported to the Gang of 8 for possible immediate handling. Though, in the worst case, the Unit would have the option to prosecute or refer the case after the President had left office.

Assuming that the total number of senators necessary is enshrined in law as a 2/3rds supermajority, I have no issue with having the Director serve at the President’s pleasure, the same as the Director of the FBI.

Any Federal office (they could move into State government). And yes, it would be a career ender. No matter how well you do your job, you will not be able to play it into something else (at least, not within the Federal government).

If you have an alternative that might achieve the same goal, I am quite happy to hear it though.

Yes.

5

How do you reconcile “serves at the president’s pleasure” with “exists for the purpose of investigating the president” ?

6
  1. Most presidents have not needed to be investigated. Given that, being able to remove a Director with ethical concerns of his own in a fairly direct way seems reasonable.
  2. Axing the director who is investigating you, when you just have to appoint a new one, simply serves to help build an Obstruction of Justice case against you. It doesn’t actually affect anything in any meaningful way since all of the people doing the main body of work will still be there, as well as all of the evidence. Christopher Wray has been perfectly fine as a replacement for Jim Comey - but probably only because the standards for appointment haven’t been lowered to 50%.
7

While the United States federal government is in many ways sui generis, it might be worthwhile looking at similar anti-corruption bodies in other countries, e.g. the Hong Kong Independent Commission Against Corruption and the New South Wales Independent Commission Against Corruption. I’ll talk about the NSW body, since that’s the one I know about, but it was based on the HK body, which is about 14 years older.

Firstly, its jurisdiction is not limited to the top level of state government, but covers all public servants, including members of parliament, judiciary and local government employees. (It does not cover the federal government, since it is a state body, and so far there is no federal Australian equivalent.) This means that it is very unlikely to run out of work :slight_smile:

Secondly, over the last 30 years the NSW ICAC has remained independent.

Thirdly, it does not prosecute cases, but just reports are recommends actions to the appropriate government body. Those actions might not just include prosecution or dismissal, but also changes in decisions or procedures to reduce corruption.

Fourthly, it bites. One of its victims was the state Premier, Nick Greiner, who was the person mainly responsible for setting up the ICAC, and who was forced by its report to resign. (That fact is well known in Australia, and may be part of the reason why the federal government has not set up an ICAC.)

8

Given how partisan things are here, I don’t think I would trust it if they had to report everything and could not prosecute on their own.

As to recommendations, usually that thing is already being handled by Oversight divisions within the Executive branch.

9

On the “worries about partisanship” note, I question the 10 year appointment by the President.

Think of who Trump would appoint, with an eye towards the current Supreme Court nominee - who’s to say the primary criteria for whichever President appoints this role won’t be explicitly or implicitly “I’m going to appoint a partisan hack with a vendetta for the opposite party and/or personal loyalty towards me/my party. That way, I’m safe and anyone else on my side is safe, and in the 2-8 years that the presidency could be under the other party, they’ll make their lives more difficult.”

Besides that quibble, I do love the idea of an independent government anti-corruption body with some teeth, but careful thought would have to go into setting up independence and governance so the office and mission itself isn’t corrupted (much like the EPA, FCC, et al today, with desires and policies the opposite of their supposed mission).

10

OK, so I am the President. I am a Republican, and the GOP holds, say, 51 seats in the Senate. The head of the Unit is getting too close to something, so I fire him. I then pick the worst political hack I can find, someone that no Democrat is going to confirm. He fails a confirmation vote 51-49. I pick someone worse. Lather, rinse, repeat. Is this actionable?

Regards,
Shodan

11

What do you mean by actionable?

In the interim, the unit would be operated by its #2. The President goes from having the ability to fire the head of the agency to not having the power to fire the head of the agency since there is none. Unless we presume the #2 to be a complete nincompoop, this doesn’t seem to play to the President’s favor at all.

Granted, this presumes that the President only has the ability to fire the Director and not any of the underlings. I would make that one of the laws surrounding the forming of the unit that he cannot.

12

Unless there is reason to believe that one party would get 67 Senators elected, I don’t know that this is much of a worry. I mean, we could raise the standard to 75% or whatever number feels impossible to reach, but presumably it should be impossible to install a partisan hack so long as an actual number of senators required for consent is actually instated as statute.

The EPA, etc. were granted the ability to enact and enforce regulations, so long as they give Congress an option to veto their actions. It’s likely that at least half of all EPA regulations were allowed to pass by a Republican-lead congress.

The FBI, on the other hand, doesn’t publish nor enforce regulations since their job is merely to enforce the laws written by Congress. They may, like most police departments, have guiding policy for their agents on how to process evidence, when to respond with lethal force, etc. but that’s all internal-only policy. The ethics unit would follow that model.

13

Would it be considered evidence of obstruction of justice, is what I meant.

So now we have the head of an agency who wasn’t elected, can’t be fired, and doesn’t answer to anyone. Hmmm.

Quis custodiet ipsos custodes?

Regards,
Shodan

14

I’m at a loss to what problem this office would solve.

As we can see today, there’s nothing that Muller in his role has done that’s actually wrong; it’s just political attacks from the subject of the investigation and his followers. Just like how Clinton and his allies attacked the credibility of Ken Starr. If we create this new office and investigator, that isn’t going to stop.

If anything, I worry more that an office dedicated to only political investigations will be more suspect than the FBI is today. For example, Muller has drawn from FBI investigators that have minimal to no background in public ethics investigations. Drawing from those who essentially have clean hands is a benefit. In this agency, literally nobody would have clean hands – every investigator would have some history of looking into the wrongdoings of politicians, which of course can be manipulated to assassinate their character.

15

I’m starting to think along the same lines, that in practice it would be just add another layer of corruption, that would need another other office to supervise it.

I think coming at things from this direction is kind of just more of the same.

Making it so that in Washington money can’t get you anywhere, would IMO make a lot more of a positive difference. But that would be rather unpopular.

16

Can it get a Dick Wolf dun-DUNN sound effect?

17

You’re talking about a Praetorian Guard.