The Federalist Society

Bring Back the Separation of Powers

Administrative Law Practice Group Newsletter - Volume 3, Issue 2, Summer 1999

August 1, 1999

Timothy E. Flanigan

The sunset of the Act will not remove the problem which the Act was designed to address: How do we avoid the real and apparent conflicts which arise when a high level official—"the President is the most telling example"—is accused of criminal wrongdoing. Our society's dedication to the rule of law demands that the President and his top level officers must be accountable for such wrongdoing. But the Attorney General is herself one of those top-level officers and is closely associated politically and even personally with the President. Under those circumstances, it is not surprising that decisions of the Attorney General or her subordinates to investigate or not, to prosecute or not, will be viewed with some suspicion.

The answer to the conundrum lies in the first instance in the Constitution. The real safeguard against high level wrongdoing is not in an "independent" anything. Trying to solve a problem as thorny as how to examine such criminal behavior by bringing in an "outsider" who is "independent" a bit like the old Greek city-state solution of bringing in a dictator when the process of democracy failed. It may at times yield a fair result, but the cost in terms of lost liberties may become unendurable.

The Founding Fathers recognized that the principal safeguard of liberty under our Constitution was not the Bill of Rights, but the separation of powers. By dividing the business of government along natural lines into the power to make law (Legislative), the power to enforce law (Executive), and the power to resolve disputes arising under law (Judicial), the Framers merely echoed other governmental systems. The genius of their undertaking lies in the carefully crafted balance of power they established between those branches. Each branch is given the means and the incentive to jealously guard its own rightful sphere and to counter the abuses of the other two.

Applying this observation to the question of how to address misconduct by Executive Branch officials, the Framers would certainly have said that the cure for such misconduct is vigilance on the part of the Legislative Branch and appropriate use by Congress of its investigative and, yes, even its impeachment powers. In exercising its power to oversee the implementation of the laws, Congress has the power to call to account officers of the United States. Congress can demand explanations, obtain testimony, require the production of documents. Committees of Congress can even appoint and supervise special counsels and provide them with staff to conduct investigations.

I am aware that there are at least two types of practical objections to relying on Congress as the primary means of investigating high level official misconduct. The first is that Congress itself is viewed with suspicion in such matters. This is true regardless of whether one or both houses are dominated by the same political party as that of the sitting President. The recent party line votes in both the House and the Senate have done little to dispel the impression that party political considerations will predominate whenever an issue of executive branch wrongdoing arises.

I can think of only one response to this objection. Regardless of recent events or even experience from the distant political past, Congress is obligated, as one of its most fundamental duties under the Constitution, to provide an effective check and balance to Executive power, and most particularly abuses of that power. If that basic responsibility has been submerged in party contention, then it is time that it reemerges. If Congress is unable to rise above party loyalties and make reasoned judgments regarding the conduct of the President and his officers, the main bastion erected by the Founding Fathers to protect our liberty has been seriously breached.

The second objection is that, because Congress lacks some tools available to federal prosecutors to conduct investigations (such as the power to take grand jury testimony), there will be no one to effectively carry out a thorough investigation of the President and his senior officers. My response to this second objection is the twin of my response to the first: The separation of powers reposes in the Executive Branch the powers of prosecution. Just as the Legislative Branch cannot escape its duty to investigate abuses, so the Attorney General cannot escape her duty to prosecute violations of law. Her oath and the oaths of the other officers of the Justice Department are not to the President as some expression of personal loyalty, but to the Constitution. If the power of the Attorney General to effectively enforce the law in cases of high level criminal conduct has been submerged in suspicions of partisan motivations, then it is time that this power reemerge.

If the Attorney General fails to live up to her responsibilities by declining to investigate thorough credible allegations of wrongdoing, what then is the remedy? Once again the answer lies in the genius of the Framers. Congress must step up to its role as a coordinate branch and second-guess the Attorney General's decision. She can be called to testify in open or closed committee hearings. She can be required to answer written questions regarding the status of an investigation.

It may be said with considerable justification that the separation of powers does not create an ideal system to address instances of wrongdoing by high level executive branch officials. It relies on men and women who are deeply involved in the political passions of their times to engage in a process that may have far reaching political implications. It is a process fraught with danger that the guilty may escape punishment.

Indeed, about the only thing that can be said in favor of reliance on the separation of powers in cases such as these is that it is better than any other system. Since 1976 we have experimented with a system that was designed to remove responsibility from both the Executive and the Legislative Branches by creating an "independent" entity, an uncommitted wise man who would "do the right thing" even when the constitutionally appointed legislators and officers would not. That experiment has failed as many predicted it would. There is no more satisfaction with the results of "independent" investigations than there was with investigations carried out by Congress and the Department of Justice. Indeed, there is far less satisfaction with the current system and its functioning in current matters than there was, for example, in the Watergate affair. In that case recall that the consensus was that the "system had worked."

Mr. Flanigan was an Assistant Attorney General in the Bush Administration. His remarks here are excerpted from testimony he gave to the House Subcommittee on Commercial and Administrative Law on March 10, 1999.

The Federalist Society