Category Archives: Congress

Removing a senator from Congress

Article I, Section 5, of the United States Constitution provides that “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” According to the Senate’s Expulsion and Censure page, since 1789, the Senate has expelled only fifteen of its entire membership. Of that number, fourteen were charged with support of the Confederacy during the Civil War. In several other cases, the Senate considered expulsion proceedings but either found the member not guilty or failed to act before the member left office. In those cases, corruption was the primary cause of complaint.

According to the CRS report Recall of Legislators and the Removal of Members of Congress from Office (Jan. 5, 2012 RL30016), “While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States, or the conviction of a criminal statutory offense which involved abuse of one’s official position. Each house has broad authority as to the grounds, nature, timing, and procedure for an expulsion of a Member. However, policy considerations, as opposed to questions of authority, have appeared to restrain the Senate and House in the exercise of expulsion when it might be considered as infringing on the electoral process, such as when the electorate knew of the past misconduct under consideration and still elected or re-elected the Member.” — Joe

Resources for Senate hearing on Russian disinformation campaign using social media giants Facebook, Twitter and Google

View and keyword search C-Span video recording of yesterday’s Senate hearing here. H/T to Gary Price, InfoDocket post.

Prepared statements of Facebook, Google and Twitter representatives here. H/T to beSpacific.

— Joe

End it, mend it or leave the electoral college system alone

“The 2016 presidential contest was noteworthy for the first simultaneous occurrence in presidential election history of four rarely occurring electoral college eventualities. These included (1) the election of a President and Vice President who received fewer popular votes than their major opponents; (2) the actions of seven ‘faithless electors,’ who voted for candidates other than those to whom they were pledged; (3) the split allocation of electoral votes in Maine, which uses the district system to allocate electors; and (4) objections to electoral votes at the joint session of Congress to count the votes.” These events are examined in detail in The Electoral College: How It Works in Contemporary Presidential Elections (May 15, 2017 RL32611). Reforming the electoral college is the subject of another recent CRS report, Electoral College Reform: Contemporary Issues for Congress (Oct. 6, 2017 R43824). From the report:

Changing the electoral college system presents several options, sometimes characterized as: “end it,” “mend it,” or “leave it alone.” Proposals to end the electoral college almost always recommend direct popular election, under which the candidates winning the most popular votes nationwide would be elected. In support of direct popular election, its advocates refer to the elections of 2000 and 2016, so-called electoral college “misfires,” in which candidates were elected with an electoral college majority, but fewer popular votes than their principal opponents.

Almost all reform proposals—“mend it”—would keep electoral votes, but eliminate electors, thus ending the faithless elector phenomenon. They would then award the electoral votes directly by one of several methods: the general ticket system on a nationwide basis; the district system that awards electoral votes on a congressional district- and statewide-vote basis; or the proportional system that awards state electoral votes in proportion to the percentage of popular votes gained by each candidate. Despite more than 30 years of legislative activity from the 1940s through the late 1970s, proposed constitutional amendments did not win the approval of two-thirds of Members of both houses of Congress required by the Constitution for referral to the states.

States can reform the electorial college without congressional intervention or amending the Constitution. Under the Constitution’s grant of authority to the states in Article II, Section 1, to appoint presidential electors “in such Manner as the Legislature thereof may direct…” several states have entered into the National Popular Vote Compact to change how the electorial college operates for their states. See LLB’s Is the National Popular Vote Compact a better way to elect the next president? for details. — Joe

Text of first Articles of Impeachment against President Trump submitted to Congress

Back on May 12, 2017, CNN ran a story listing Democrats who were discussing the impeachment of President Trump. Two months later, H.Res. 438 – Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors, was introduced by Rep. Brad Sherman [D-CA-30] and referred to the House Committee on the Judiciary. Here’s the text of the first articles of impeachment filed against President Trump.

H. RES. 438: Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.

IN THE HOUSE OF REPRESENTATIVES

July 12, 2017

Mr.  Sherman (for himself and Mr. Al Green of Texas) submitted the following resolution; which was referred to the Committee on the Judiciary

Resolved,  That Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate:

Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against Donald John Trump, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors.

ARTICLE I

In his conduct while President of the United States, Donald John Trump, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed and impeded the administration of justice during a Federal investigation in that:

Knowing that Federal law enforcement authorities were investigating possible criminal law violations of his former National Security Advisor, General Michael Flynn and knowing that Federal law enforcement authorities were conducting one or more investigations into Russian state interference in the 2016 campaign for President of the United States, and that such investigation(s) included the conduct of his campaign personnel and associates acting on behalf of the campaign, to include the possible collusion by those individuals with the Russian government, Donald John Trump sought to use his authority to hinder and cause the termination of such investigation(s) including through threatening, and then terminating, James Comey, who was until such termination the Director of the Federal Bureau of Investigation.

The pattern of behavior leading to the conclusion that he sought to cause the hindrance or termination of said investigation(s) include the following:

(1) Requesting that the Director of the Federal Bureau of Investigation curtail the investigation of the activities of General Michael Flynn under circumstances wherein it appeared that Director Comey might be terminated if he failed to adhere to such request.

(2) Making a determination to terminate the Director of the Federal Bureau of Investigation, and only thereafter requesting that the Deputy Attorney General provide him with a memorandum detailing inadequacies in the Director’s performance of his duties.

(3) Despite offering differing rationales for the termination of the Director of the Federal Bureau of Investigation, admitted subsequently that the main reason for the termination was that the Director would not close or alter the investigation of matters related to the involvement of Russia in the 2016 campaign for President of the United States.

(4) Stated that, once he had terminated the Director of the Federal Bureau of Investigation, the pressure of said investigation had been significantly reduced.

In all of this, Donald John Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore, Donald John Trump, by such conduct, warrants impeachment and trial, and removal from office.

— Joe

Congressional Research Service on grounds for impeachment [Resources]

The impeachment of Bill Clinton was initiated by the House of Representatives on December 19, 1998, with two charges, one of perjury and one of obstruction of justice. Some six weeks earlier on October 30, 1998, the Congressional Research Service released a six part series of selected background materials pertinent to the issue of what constitutes impeachable misconduct for purposes of Article II, section 4 of the United States Constitution:

I wonder whether this series will be updated in the near, hopefully very near, future. — Joe

House resolution invokes 25th Amendment to “Quickly secure the services of medical and psychiatric professionals to exam the president… .”

Rep. Zoe Lofgren’s (D-Calif.) has introduced a resolution Friday urging President Donald Trump to get a medical and psychiatric examination to determine if he should be removed from office. The resolution calls on Vice President Pence and the members of Trump’s cabinet to “quickly secure the services of medical and psychiatric professionals” to “assist in their deliberations” invoking the 25th Amendment, which outlines presidential removal procedures.

The resolution states:

Quickly secure the services of medical and psychiatric professionals to exam the president to assist in their deliberations under the 25th Amendment to determine whether the president suffers from a mental disorder or other injury that impairs his abilities and prevents him from discharging his Constitutional duties.

— Joe

79 Democratic Members of Congress cosponsor resolution to censure President Trump

From the press release:

Today, Congressman Jerrold Nadler (D-NY), Congresswoman Bonnie Watson Coleman (D-NJ), and Congresswoman Pramila Jayapal (D-WA) introduced a censure resolution in the U.S. House of Representatives against President Donald Trump for his comments blaming “both sides” for the violence in Charlottesville, Virginia and excusing the behavior of participants in the ‘Unite the Right’ rally.

The censure resolution condemns the President for failing to immediately and specifically name and condemn the white supremacist, Ku Klux Klan, and neo-Nazi groups responsible for actions of domestic terrorism in Charlottesville over the weekend, and for doubling-down on his comments by attempting to create a moral equivalency between white supremacists and those counter-protesting the ‘Unite the Right’ rally. The resolution, which was cosponsored by 79 Members of Congress, offers an official censure by Congress of President Trump for his remarks, and calls for the President to fire any and all advisors who have urged him to cater to white supremacist.

Is your Member of Congress among the 79 cosponsor. [List of Cosponsors] As of now, the resolution is not online at Congress.gov. — Joe

Congressional censure and post-Charlottesville calls for Congress to censure President Trump

“Censure is not impeachment,” wrote USA Today’s Editorial Board. “Whether that’s appropriate will likely depend on the outcome of special counsel Robert Mueller’s investigation into ties between Russia and the Trump campaign. But censure would constitute a forceful way of rebuking the White House and condemning the vile views of a bigoted fringe, even as those people’s right to free speech and peaceful protest is protected under the First Amendment.” After Charlottesville, time to censure President Trump, USA Today, Aug. 16, 2017.

On Congressional censure, see Congressional Censure and “No Confidence” Votes Regarding Public Officials, (June 23, 2016). From the introduction:

The House and the Senate have, from time to time in the past, proposed and—on some occasions—adopted a resolution which has expressed the body’s disapproval, condemnation, censure, or lack of confidence regarding a particular official in the executive branch of the federal government.

Such actions have not been considered as part of the express impeachment authority of the House within the Constitution (nor the authority to try such impeachments in the Senate), nor have they generally been considered as either part of the inherent contempt authority of either house of Congress or the express constitutional authority of each house of Congress to discipline its own Members. Rather, such actions seem to be in the nature of a “sense of the House” or a “sense of the Senate” resolution, whereby a simple resolution is proposed and adopted by one house of Congress, without the concurrence of the other house of Congress, and without a requirement for a “presentment” to the President (as would be required of a “bill”). Such simple resolutions adopted by one house (or concurrent resolutions adopted by both houses) have come to be recognized by parliamentarians as a vehicle to express the opinion and sense of Congress on a nonlegislative matter; and “sense of” the House, Senate, or Congress resolutions concerning a wide range of subjects have been used frequently in the past by the House and Senate.

The adoption of a simple or concurrent resolution expressing the House’s or Senate’s “censure,” “condemnation,” or “no confidence” in a particular officer of the federal government does not have any immediate or binding legal import, but does express a particular moral judgment and may have both symbolic as well as political implications.

— Joe

Presidential Advisers’ Testimony Before Congressional Committees

From the introduction to the CRS report, Presidential Advisers’ Testimony Before Congressional Committees: An Overview (December 15, 2014, RL31351):

Since the beginning of the federal government, Presidents have called upon executive branch officials to provide them with advice regarding matters of policy and administration. While Cabinet members were among the first to play such a role, the creation of the Executive Office of the President (EOP) in 1939 and the various agencies located within that structure resulted in a large increase in the number and variety of presidential advisers. All senior staff members of the White House Office and the leaders of the various EOP agencies and instrumentalities could be said to serve as advisers to the President.

Occasionally, these executive branch officials playing a presidential advisory role have been called upon to testify before congressional committees and subcommittees. Sometimes, such invited appearances have been prompted by allegations of personal misconduct on the part of the official, but they have also included instances when accountability for policymaking and administrative or managerial actions have instigated the request for testimony. Because such appearances before congressional committees or subcommittees seemingly could result in demands for advice proffered to the President, or the disclosure—inadvertent or otherwise—of such advice, there has been resistance, from time to time, by the Chief Executive to allowing such testimony.

Congress has a constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.

A congressional committee may request (informally or by a letter from the committee chair, perhaps co-signed by the ranking Member) or demand (pursuant to subpoena) the testimony of a presidential adviser. However, Congress may encounter legal and political problems in attempting to enforce a subpoena to a presidential adviser. Conflicts concerning congressional requests or demands for executive branch testimony or documents often involve extensive negotiations and may be resolved by some form of compromise as to, inter alia, the scope of the testimony or information to be provided to Congress.

— Joe

New bill, if passed, would offer Congressional internships to recent law school grads

Drafted by four senators along with Larry Kramer, former Dean of Stanford Law School; Robin West, law professor at Georgetown University Law Center; Bill Treanor, Dean of Georgetown University Law Center; Abbe Gluck, law professor at Yale Law School; and Dakota Rudesill, law professor at Ohio State, S. 1604, A bill to establish the Daniel Webster Congressional Clerkship Program, was introduced in the US Senate on July 20, 2017. It is intended to attract law school grads to learn more about the legislative process. From the bill’s statement of Congressional findings:

(1) Each year, many of the most talented law school graduates in the United States begin their legal careers as judicial law clerks.

(2) The judicial clerkship program has given the judiciary access to a pool of exceptional young lawyers at a relatively low cost.

(3) These same lawyers then go on to become leaders of their profession, where they serve a critical role in helping to educate the public about the judiciary and the judicial process.

(4) The White House, the administrative agencies of the executive branch, the Administrative Office of the United States Courts, the Federal Judicial Center, and the United States Sentencing Commission all operate analogous programs for talented young professionals at the outset of their careers.

(5) Congress is without a similar program.

(6) At a time when our Nation faces considerable challenges, Congress and the public would benefit immeasurably from a program, modeled after the judicial clerkship program, that engages the brightest young lawyers in the Nation in the legislative process.

Hope the bill passes. — Joe

Collateral consequences of Senator and House members indicted for or convicted of a felony

Two CRS reports analyze the status of Senators and Members of the House who have been indicted for or convicted of a felony. See Status of a Senator Who Has Been Indicted for or Convicted of a Felony (April 2, 2015, RL34716) and Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony (May 8, 2014, RL33229). — Joe

CRS report: Presidential Advisers’ Testimony Before Congressional Committees

From Presidential Advisers’ Testimony Before Congressional Committees: An Overview (Dec. 15, 2014 RL31351):

Congress has a constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.

A congressional committee may request (informally or by a letter from the committee chair, perhaps co-signed by the ranking Member) or demand (pursuant to subpoena) the testimony of a presidential adviser. However, Congress may encounter legal and political problems in attempting to enforce a subpoena to a presidential adviser. Conflicts concerning congressional requests or demands for executive branch testimony or documents often involve extensive negotiations and may be resolved by some form of compromise as to, inter alia, the scope of the testimony or information to be provided to Congress.

— Joe

The Congressional Oversight Manual

The Constitution grants Congress extensive authority to oversee and investigate executive branch activities. Towards that end, CRS developed the Congressional Oversight Manual over 30 years ago. The Manual was produced by CRS with the assistance of a number of House committee staffers. The constitutional authority for Congress to conduct oversight is designed to fulfill a number of purposes:

  • Ensure Executive Compliance with Legislative Intent
  • Evaluate Program Performance
  • Prevent Executive Encroachment on Legislative Prerogatives and Powers
  • Investigate Alleged Instances of Poor Administration, Arbitrary and Capricious Behavior, Abuse, Waste, Dishonesty, and Fraud
  • Assess Agency or Officials’ Ability to Manage and Carry Out Program Objectives
  • Review and Determine Federal Financial Priorities
  • Ensure That Executive Policies Reflect the Public Interest
  • Protect Individual Rights and Liberties

— Joe

CRS report: Obstruction of Congress

From the CRS report, Obstruction of Congress: A Brief Overview of Federal Law Relating to Interference with Congressional Activities (Nov. 5, 2010 RL34304):

Obstruction of justice is the frustration of governmental purposes by violence, corruption, destruction of evidence, or deceit. It is a federal crime. In fact, federal obstruction of justice laws are legion; too many for even passing reference to all of them in a single report. This is a brief description of those that outlaw interference with congressional activities.

See also Bradley J. Bondi, No Secrets Allowed: Congress’s Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings, 25 Journal of Law and Politics, No. 145 (2010)(“To the extent Congress refuses to accept a witness’s assertion of the attorney-client privilege or work-product protection during an investigation, this article explores avenues for challenging such an adverse determination and for resisting the disclosure of the confidential information in the face of contempt. The article concludes with a discussion of some practical ways an individual or entity subject to a congressional investigation may limit the extent of any subsequent waiver and minimize the harm caused by the release of the information.”) — Joe

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

From the summary of the CRS report, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (May 12, 2017, RL34097):

Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent times the contempt power has most often been employed in response to non-compliance with a duly issued congressional subpoena—whether in the form of a refusal to appear before a committee for purposes of providing testimony, or a refusal to produce requested documents.

Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.

See also, Josh Chafetz, Executive Branch Contempt of Congress, 76 University of Chicago Law Review 1083 (2009). — Joe

Taking the Fifth in Congressional investigations

On May 26, 2017, CRS issued a Legal Sidebar titled The Fifth Amendment in Congressional Investigations. Here’s a snip:

As a general matter, witnesses may invoke the Fifth Amendment privilege during a congressional investigation with regard to testimony or documents that are: (1) testimonial (“relate[s] a factual assertion”); (2) self-incriminating (any disclosures that tends to show guilt or that furnishes any “link in the chain of evidence” needed to prosecute); and (3) compelled (not voluntarily given). Oral testimony given pursuant to a subpoena and in response to committee questioning almost always qualifies as testimonial and compelled. Therefore, the central inquiry is typically whether the responsive testimony would be “incriminating.” The Supreme Court has taken a broad view of what constitutes incriminating testimony, holding that the privilege protects any statement “that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might so be used.” Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be “ensnared by ambiguous circumstances.”

H/T to beSpacific. — Joe

House set to vote on the Financial CHOICE Act, H.R. 10, to repeal Dodd-Frank Act requirements

The House of Representatives is set to vote this week on The Financial CHOICE Act, H.R. 10, an extensive bill intended to rewrite the Dodd-Frank Act and roll back hundreds of other financial regulations. The Financial CHOICE Act in the 115th Congress: Selected Policy Issues (May 10, 2017, R44839) highlights major proposals included in the bill but is not a comprehensive summary. In general, H.R. 10 proposes changes that can be divided into two categories: (1) changes to financial policies and regulations and (2) changes to the regulatory structure and rulemaking process. See also, The Financial CHOICE Act (H.R. 10) and the Dodd-Frank Act (May 22, 2017, IN10695) and Systemically Important or “Too Big to Fail” Financial Institutions (Jan. 4, 2017, R42150).

The future of H.R. 10 in the Senate is uncertain. According to published reports, Senate Democrats are likely to mount a filibuster against it while Senate Republicans are expected to offer their own financial regulatory reform package. — Joe

Suggested articles of impeachment for President Trump

The time has come for Congress to act and for leaders on both sides of the aisle to put country before party and politics. Speaker Paul Ryan and Majority Leader Mitch McConnell ought to, in cooperation with Democratic leaders, begin the sequence of events that would likely lead to impeachment and removal proceedings for Trump. Given that this is unlikely, Democrats should make clear of their intentions to do what is necessary under our Constitution should they win back control of the House of Representatives in 2018. This process should be as full, fair, and transparent as our Constitution requires. Anything less would demean and harm the country even more than Trump has already done. — Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017

Echoing similar sentiments, Keith E. Whittington warns “If the impeachment power is perceived to be little more than a partisan tool for undermining elected officials and overturning election results, then the value of elections for resolving our political disagreements is significantly reduced. We do not want to be in a situation in which neither side trusts the other to continue adhering to the most basic democratic norms of abiding by election results.” Keith E. Whittington, An Impeachment Should Not Be a Partisan Affair, Lawfare, May 16, 2017.

Short of the Democrats winning a majority of seats in the House in the 2018 congressional elections, it is hard to imagine the Republican controlled House of Representatives bringing articles of impeachment against President Trump because impeachment has been a partisan political action for quite a while now. See Richard K. Neumann, Jr., The Revival of Impeachment as a Partisan Political Weapon, 34 Hastings Constitutional Law Quarterly 161 (2007). But if viewed as a thought experiment, Phillip Carter has offered a “first draft” of an impeachment bill. The drafted articles of impeachment he identifies are listed below:

Article 1: Compromising the integrity of the presidency through continuing violation of the Constitution’s Emoluments Clause.

Article 2: Violation of his constitutional oath to faithfully execute the duties of his office by disregarding U.S. interests and pursuing the interests of a hostile foreign power, to wit, Russia.

Article 3: Impairment and obstruction of inquiries by the Justice Department and Congress into the extent of the Trump administration’s conflicts of interests and Russia ties.

Article 4: Undermining of the American judicial system through felonious intimidation of potential witnesses.

Article 5: Undermining of his office and the Constitution through repeated assaults on the integrity of the federal judiciary and its officers.

Article 6: Demeaning the integrity of government and its public servants, particularly the military and intelligence agencies, in contravention of his constitutional duties to serve as chief executive and commander in chief of the armed forces.

Looks comprehensive to me. See Phillip Carter, A first draft of an impeachment bill for the president, Salon, May 16, 2017 for his explanations for each draft article of impeachment . See also, The Republican’s Guide to Presidential Behavior, New York Times editorial, May 13, 2017 (“What do Paul Ryan, Mitch McConnell and other Republican leaders think a president may say or do and still deserve their enthusiastic support? We offer this handy reference list in hopes of protecting them from charges of hypocrisy in the future. They can consult it should they ever feel tempted to insist on different standards for another president.”)  — Joe

Reality checks on impeachment talks

Within the last 24 hours, both Time and NPR outlined conditions under which President Trump might be impeached after the recent disclosure of the existence of Comey’s CYA memo of his private meeting with President Trump about the Flynn investigation. In How Difficult Would It Be to Impeach President Trump? Time’s Katie Reilly identified the following conditions as necessary:

  1. Impeachment talk would need to be taken seriously
  2. Critics would need to settle on one argument
  3. There would need to be more evidence
  4. The House would need to decide there are grounds for impeachment
  5. The Senate would need to find the President guilty
  6. There would need to be public support for impeachment

In Trump Impeachment Talk Grows From Conspiracy Theory To Mainstream, NPR’s Domenico Montanaro writes that “a lot has to happen — and a lot of facts gathered — before anyone gets down the road to impeachment.” Steps to the possible road to impeachment include:

  1. The memo has to be produced
  2. Comey has to testify on the record and in public about the memo and the meeting
  3. There have to have many willing Republicans to go along
  4. Is this obstruction of justice?

Wait and see. — Joe

CRS reports on special counsels, independent counsels and special prosecutors

On May 11, 2017, the Congressional Research Service released Special Counsels, Independent Counsels, and Special Prosecutors: Investigations of the Executive Branch by the Executive Branch. From the introduction:

Under constitutional principles and authorities, Congress has no direct role in federal law enforcement and is limited in its ability to initiate appointments of any prosecutor for any particular matter in which there may be allegations or concerns about wrongdoing by public officials. Instead, criminal investigations and prosecutions have generally been viewed as a core executive function and are a responsibility of the Executive Branch. However, because of the potential conflicts of interest that may arise when the Executive Branch investigates itself, as a historical matter there have often been calls for an independently led inquiry to determine whether executive officials have violated criminal law. In the past, Congress has authorized independent counsels, who were requested by the Attorney General and appointed by a judicial panel, but that authority lapsed in 1999. Currently, the Attorney General has regulatory authority to appoint a special counsel to investigate allegations that may present a conflict of interest for the Department of Justice (DOJ).

Focusing on the role of Congress, see also, Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress (June 20, 2013, R43112). This report provides information on the procedure for the appointment of an “independent counsel,” a “special prosecutor,” or a “special counsel” to investigate and prosecute potential or possible violations of federal criminal law by officials in the executive branch of the federal government and in federal agencies. Specifically examined is the role or authority of Congress in requiring an independent or special counsel investigation of executive branch officials.

— Joe