Balkinization  

Wednesday, May 10, 2017

Independence and Accountability in Investigations of High-Level Officials

Mark Tushnet

I've been working on two papers dealing with the constitutional design of permanent agencies charged with investigating high-level corruption, agencies that are common around the world. As with courts, the design issues involve achieving the appropriate combination of independence and accountability. As a shorthand: Designers need to figure out ways to avoid overzealousness by the investigators while reducing the risk of underenforcement or selective enforcement. (My current thought is that a multi-headed agency rather than a single investigator is the way to go.)

The immediate responses to the Comey firing raise interesting questions about the "design" issues when one is appointing a temporary investigator for a single inquiry. My only thought here is a snarky one about how the design issues are addressed in U.S. politics. There appear to be two principles at work. (1) Where the subject of the investigation is a Republican, only a Republican investigator will have enough credibility to conduct an investigation whose outcome will be broadly acceptable. (2) Where the subject of the investigation is a Democrat, only a Republican investigator will have enough independence to conduct an investigation whose outcome will be broadly acceptable. One senses that there's actually only one principle at work. [I put to one side the already circulating, even more snarky suggestion that the President should nominate Merrick Garland to replace Comey, or should be named as the special prosecutor/counsel.]

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