White House Investigations: A Proposal for a New Approach

Over the past eight years, the United States has witnessed radical upheavals and new fronts in the mechanisms for ensuring executive branch accountability. Some of the shifts are widely known and discussed—most obviously the Supreme Court’s decision granting the president absolute criminal immunity in Trump v. United States and the high-profile special counsel investigations into Presidents Trump and Biden. Others have largely flown under the radar—such as the House’s decision to conduct a “snap” impeachment of then Secretary of Homeland Security Alejandro Mayorkas (only the second impeachment of a Cabinet official in the country’s history) or a lengthy memorandum issued by the Office of Legal Counsel (OLC) limiting congressional oversight of the White House. There has been no shortage of material to consider and process. And putative attempts at accountability have come in many forms. In Congress, these included three impeachments, an additional impeachment investigation, various forms of impeachment “trials” in the Senate, and various congressional oversight investigations—a number of which ended up in court. In the Department of Justice, accountability measures included the appointment of five special counsels in six years, culminating in several high-profile reports and indictments.

Moreover, the early whirlwind of the second Trump administration has included direct attacks on existing accountability mechanisms and independent checks within the executive branch. Even before Trump took office, he indicated his intent to fire Special Counsel Jack Smith, and, though Smith resigned before Trump took office, the administration did fire Smith’s staff—some of whom were career prosecutors. A late-night mass firing of inspectors general undermined the ability of these “watchdogs” to check waste or misconduct in agencies. And the forced purge of career government officials serving in positions of responsibility within various agencies and other attacks on senior, apolitical federal employees undermines their ability to check executive branch action. The administration also attempted to remove Special Counsel Hampton Dellinger from office, whose job it is to protect government employees and whistleblowers. And, by denominating Elon Musk as a senior White House adviser with no formal authority and creating and empowering the Department of Government Efficiency (DOGE) as a White House office, the administration made it more difficult to determine what is happening—let alone check—its slash-and-burn approach to the federal government. The administration has even attempted to thwart public records requests under the Freedom of Information Act by reclassifying DOGE’s documents as protected by the Presidential Records Act.

Now, more than ever, ensuring that the White House is accountable for its actions and subject to independent checks is vital. But current mechanisms to ensure accountability have largely failed. The institution of the special counsel has come under intense scrutiny and criticism—including on Lawfare. Extreme partisanship in Congress and expanding executive branch doctrines related to executive privilege have altered and diminished oversight and impeachment. And Trump v. United States, which sparked an outpouring of commentary and outrage by declaring the president immune from criminal liability, further undermines the ability of criminal prosecutors and special counsels to hold presidents accountable. Moreover, given the Republican control of both houses and the party loyalty expected of members of Congress, congressional inquiry into the administration’s actions is essentially nonexistent.

It’s time for a new approach to White House accountability. But in designing or considering any system, it is vital to consider accountability holistically. For the past 50 years, the United States has relied exclusively on two methods of investigating the White House: congressional investigation and criminal investigation by a federal prosecutor. The current deficiencies in each method as well as other past and existing mechanisms for government accountability provide a road map to reform. As I have discussed previously both on Lawfare and in my scholarship, executive branch doctrines developed over the past half century related to privilege, oversight, and, more recently, impeachment can be enormously effective in stifling oversight—even if legitimate—and thwarting attempts at transparency and accountability. At the same time, there are enormous problems with investigations conducted by both special counsels and congressional committees, problems I witnessed firsthand serving in the White House Counsel’s office over the past two years.

There are two characteristics of past and existing investigatory mechanisms out of which many of these problems arise. First, the United States has always combined the investigatory power with the power to sanction—special counsels investigate under the framework of a potential criminal prosecution, and Congress investigates wrongdoing with impeachment looming as a possibility, even if remote, in the background. Second, existing mechanisms vest sufficient authority to compel the production of information from the White House in a timely manner—including by judicial process if necessary—only in a single prosecutor operating within the criminal investigatory process. As I have explained previously, Congress lacks the power to compel the White House to turn over relevant information on any realistic time frame.

Potential sanctions—impeachment and removal from office or criminal prosecution—are of course relevant to accountability. But, as Andrew Coan’s recent book on presidential prosecutions traces well, the primary method by which the United States has held presidents and other high-ranking officials accountable is through investigation and public reporting. No president has ever been removed from office, and only Trump has been prosecuted for federal offenses (a prosecution thwarted by the Supreme Court and a friendly district court judge). The checks have, in other words, been almost entirely political. As Bob Bauer and Jack Goldsmith recognize in their book “After Trump”—echoing past insight by, among others, Ben Wittes and Mike Rappaport—special counsels have primarily performed an “informing” function, investigating and reporting on the results of that investigation to the public. Congressional investigations have often performed a similar informing function, which Woodrow Wilson famously characterized as preferable even to Congress’s lawmaking function. But informing the public about what happened is not possible without a thorough investigation. And a thorough, objective investigation is not possible without adequate authority to compel the production of information and appropriate incentives not to exercise such authority purely for partisan gain.

As I propose in a draft article, a new approach to White House accountability should address the deficiencies that plague the current system: Any system designed to ensure accountability should possess five central values —(1) independence, (2) electoral accountability, (3) investigative enforcement authority, (4) neutrality and objectivity, and (5) sanction. But history has shown the impossibility of successfully balancing all five in a single entity.

Accordingly, I advocate the creation and empowerment of a continuing, multimember, expert, independent commission for White House investigation—which I call “inspection” in the article to remove any connotation of criminal enforcement. This purely investigatory body would maximize the first four values listed above but have no power to sanction or even opine on the permissibility or advisability of sanction. Instead, it would simply investigate and provide facts to the public and to the accountable entities charged with sanction, such as the House or the Department of Justice.

There are a number of characteristics essential to this investigatory body that fall into four categories. First, in terms of structure, this proposal envisions a (i) continuing, multimember commission or council appointed by the president and confirmed by the Senate; whose members (ii) serve staggered terms and (iii) must meet statutory standards relating to objectivity and expertise. Second, as far as authority, the commission must have (iv) robust investigative enforcement authority, through the use of the subpoena power and judicial process, but (v) no authority to sanction or punish. Third, in terms of location, this type of commission must be (vi) established within the executive branch but be (vii) statutorily independent of the White House and the Department of Justice. And, with respect to records and reporting, the commission and its investigations would be governed by both (viii) specific and robust confidentiality requirements and (ix) mandatory reporting requirements to both Congress and the Justice Department. Other procedural requirements—such as requiring a supermajority for certain actions—would further ensure the commission could perform its functions that would be both objective and nonpartisan and perceived as such.

This structure is designed to address the specific shortcomings that have become apparent in the existing systems of accountability. The special counsel framework, as recent years have demonstrated, has evolved to create many of the same pathologies that led to the demise of the independent counsel. A special counsel appointed pursuant to the existing Department of Justice regulation is—as former Attorney General Janet Reno noted about independent counsels after formerly supporting them—“a prosecutor who is unlike any other.” They are appointed to investigate a single person, typically a high-ranking official; must create an entirely new office and staff it with lawyers willing to undertake a high-profile investigation; and then face constant partisan attacks and pressure to justify their appointment. These pressures have led to the presumed disclosure of a lengthy report detailing the special counsel’s activities—despite the fact that the existing regulations were purposefully written to get rid of the reporting requirement applicable to the independent counsel and require only a “confidential report” to the attorney general. That presumptive disclosure has led recent special counsels to write comprehensive reports that document all of their investigative efforts—likely in an attempt to justify the enormous expenditures and time their appointment incurred—and to include details that would otherwise appear out of place in, for example, a declination memorandum. Indeed, such a public report—particularly when the counsel has chosen not to file any charges—is directly contrary to the department’s tradition of not discussing prosecutorial decisions outside of court proceedings. Moreover, all of this authority to investigate and make decisions about prosecuting presidents and high-ranking officials is largely given to a single individual—with little possibility of interference by the attorney general due to the appearance of political interference—who has little electoral accountability to the public.

Congress too faces enormous obstacles in any White House investigation, though the obstacles are of a different nature. Most obviously, congressional investigations—including impeachment investigations—are inherently partisan, and perceived as such. Robust congressional oversight, particularly of the White House, rarely occurs when the same party controls the White House and Congress. And any opposite-party investigation is very difficult to separate from the larger political incentives. The paradigm of the “separation of parties, not powers” that dominates the current American political institutions leads to questions about the objectivity and neutrality of any congressional investigation, even if the probe is directed into substantial evidence of misconduct. Second, and perhaps more important, congressional investigations lack the necessary investigative enforcement power to perform a robust inspection. As I have detailed elsewhere, the executive branch has, over time, developed a comprehensive doctrine of executive privilege and presidential authority that, at bottom, views the president as having ultimate control over the dissemination of wide swaths of information. This principle of presidential control has given rise to what I have called prophylactic executive privilege doctrines that give executive branch actors the cover of legal authority to refuse to comply with congressional subpoenas directed at the White House. The first Trump administration extended these doctrines into impeachment, despite historical arguments that congressional power in impeachment is at its apex, and the Biden administration cited these precedents as well in its interactions with the House impeachment inquiry. These defenses are thus likely to continue to be deployed by administrations of both parties and largely render Congress powerless to enforce its information demands in a timely manner. Litigation to enforce subpoenas has proved largely fruitless.

To illustrate the limitations of the investigatory enforcement power of Congress, one need only look to the corollary Jan. 6 investigations by the House and the special counsel. The House Select Committee to Investigate the January 6th Attack on the United States Capitol—in part because of full cooperation from the Biden White House—was able to procure an enormous amount of information about the events leading up to and on Jan. 6 and report on the results of its inquiry to the American people. But it was not able to compel testimony or documents from the key witnesses to the events, such as Mark Meadows or Mike Pence. Nor was the House even able to ensure that noncompliant witnesses were punished for their contempt. The Department of Justice—even in a same-party administration—refused to prosecute Mark Meadows and senior adviser Dan Scavino. And had the administration been of the opposite party—as is normally the case in these investigations—the House would almost certainly have failed to get a substantial portion of the documents and testimony it did receive. By contrast, Smith was able to compel testimony and documents from all of these officials and more and to overcome every claim of privilege by seeking judicial enforcement of his grand jury subpoenas. Similarly, Independent Counsel Ken Starr overcame multiple claims of privilege during his investigation by turning to the judiciary, but President Clinton asserted privilege to prevent Congress from getting information relevant to their investigations of the White House. Even President Nixon was able to prevent Watergate tapes from being handed over to a Senate committee even though his attempts to withhold them from the special prosecutors were repeatedly rebuffed.

In the current system, the only person who can compel the production of all information relevant in a White House investigation is a criminal prosecutor appointed temporarily to target a single individual and who faces enormous pressure to justify her appointment and report extensively to the public about the investigation. As I experienced firsthand, this system leads to a number of conflicts of interest and wastes an enormous amount of resources in the creation of a new prosecutorial office and in the need for White House officials and staff to work extensively on responding to the criminal investigation. And it puts a criminal prosecutor—and her team—in the untenable position of trying to approach a criminal investigation of the White House as if it were a normal prosecution while also recognizing that there is nothing normal about it. Andrew Weissman recounted experiencing this tension during the Mueller investigation, and Bauer and Goldsmith note in their book how this puts the attorney general in the contradictory roles of advising the White House and president on privilege and constitutional authority while also having ultimate control over the investigation against which the White House would like to claim privilege. Moreover, if a particular attorney general is, above all, a loyalist to the president who appointed her, then the attorney general has the authority to shut down the investigation entirely. Also, the fact that the investigation occurs in the context of a criminal investigation can thwart the ability of the public to access information, as happened with the second volume of Special Counsel Smith’s report.

These shortcomings will only be compounded by the Court’s decision in Trump v. United States, which may gut the special counsel system entirely. If some of the president’s actions are not subject to criminal laws—as the Court held in Trump—then it is not clear whether an attorney general would have authority to open an investigation into noncriminal conduct. Certainly, the existing special counsel regulations apply only to “criminal” investigation. If that’s the case, then, as a result of Trump, no entity in the current system has sufficient investigative authority to conduct a comprehensive investigation of the White House that involves either noncriminal or immune presidential misconduct. A special counsel cannot be appointed; Congress lacks authority to enforce its information demands; and other entities, such as inspectors general, lack jurisdiction to investigate the White House.

A continuing, multimember, independent commission or council composed of members chosen for their expertise, experience, and objectivity that has authority to compel the production of information through judicial process would address these deficiencies. The commission’s actions, including subpoena enforcement actions, would be governed by strict rules of confidentiality—in the same manner as grand jury proceedings. And its only function would be to inspect the White House and report on those results to the public and to the appropriate accountable actors with authority to sanction—Congress and the Department of Justice. In the article, I defend at length the constitutionality of this type of commission, both as a matter of history and even under the current administration’s maximalist unitary executive view and the Supreme Court’s continuing movement to enforce the unitary executive theory in cases such as Seila Law, Collins, and Arthrex. For present purposes, it is sufficient to say that numerous multimember commissions exist with some indicia of independence and with requirements about the experience and expertise of members, and substantial precedent suggests that noncriminal investigation—what I call inspection—is not a purely executive function that must be subject to presidential control.

Indeed, what is striking when you look at the history of investigations in the United States is how often it has turned to this model of a multimember, politically neutral or balanced, expert commission to pursue important investigations—except where White House misconduct is at issue. From the Warren Commission to the 9/11 Commission to the more recently created Afghanistan War Commission, the country has established independent panels with robust enforcement power to investigate sensitive and high-profile issues. And current bodies such as the Council of Inspectors General for Integrity and Efficiency (CIGIE) or the Privacy and Civil Liberties Oversight Board originate out of similar considerations. One option for implementing my proposal, in fact, would be to empower an existing entity such as CIGIE with authority to conduct White House inspection and to give it some of the essential characteristics necessary to be effective in that endeavor. A recent article by Ian Ayres and Sai Prakash similarly draws on this concept of a multimember, expert body to argue in favor of a “prosecutor jury,” a bipartisan grand jury composed of former prosecutors that must, by supermajority vote, approve an attempt to indict a president or high-ranking official. Ayres and Prakash’s proposal is even compatible with the one I put forward here because they focus on the question of when to sanction and my focus is on putting the investigation into the hands of this same type of independent, multimember body.

My model also draws heavily on the framework for the investigation of judicial misconduct and competency created by the Judicial Conduct and Disability Act of 1980. Though criticized for a lack of independence—a characteristic my proposal would not share—multimember judicial panels established pursuant to this act conduct a robust investigation into alleged judicial misconduct or incompetency, and that investigation is both governed by strict confidentiality rules and given robust investigative enforcement power through judicial process and contempt of court. Multimember panels conduct the investigation and then report on the results to the Judicial Conference, which, if warranted, reports and provides evidence to the House Judiciary Committee, where the conduct may warrant consideration of impeachment. A former federal judge in Alaska, for example, was recently referred to the House after such an investigation. My proposal would create a more independent body—one staffed with presidentially appointed and Senate-approved inspectors—but one would act very much like these judicial panels. And impeachment could follow a similar process of investigation by this independent entity and reporting to the House. This process would allow the House to open an impeachment investigation on the basis of an objective, expert report and accompanying facts rather than use impeachment to wage a partisan fishing expedition. Indeed, the model I propose could also be utilized for other purposes, such as the investigation of presidential competency under the 25th Amendment, in the same manner that these judicial panels are charged with investigating both misconduct and competency in Article III judges.

Dating back at least to President Coolidge, and arguably earlier, the United States has experimented with different methods of investigating and holding presidents and White House officials accountable. But it has relied almost exclusively on criminal prosecutors to investigate potential wrongdoing. Congress has played some role, but its investigative authority, particularly in recent years, has proved inadequate to achieve real accountability and its investigations are inevitably tainted by the two-party system. Even impeachments, at least until the first Trump impeachment, have relied almost exclusively on either widely known conduct—such as Andrew Johnson’s firing of the secretary of war—or facts developed by previous investigation conducted by a criminal prosecutor—such as Starr or the Watergate prosecutors. In short, increasing polarization, the movement toward a strong unitary executive, inherent contradictions and unhealthy incentives in the institution of the special counsel, and expanding executive branch doctrines of privilege and information control have rendered existing methods of White House investigation untenable. Even prior supporters of reform to the special counsel system such as Bauer seem to have reluctantly conceded defeat after the debacle of the Hur investigation and report and the decision in Trump v. United States.

My intent in proposing a new mechanism for White House investigation is both to continue the tradition of experimenting with methods of holding presidents and White House officials accountable and to start a new conversation about extracting White House investigation from the criminal prosecution model and from partisan congressional inquiry. Accountability requires an actor empowered to compel the production of information when necessary in a professional, objective manner and a charge to report on this investigation to the public or appropriate actors. If that fact was not clear before, the Trump administration’s use of the opaque DOGE entity—largely screened from public scrutiny—to enact sweeping changes to the federal government should underscore the need for such accountability mechanisms. And though it may be difficult or even impossible in today’s political environment, the actor charged with this type of inspection should be structured in a manner to provide the greatest distance from partisan passions. The availability or wisdom of sanctions such as criminal punishment or impeachment raise significantly more—and distinct—questions about electoral accountability and democratic responsiveness. No matter what one’s view of those questions are, however, investigation is undoubtedly a necessary component of an accountable executive.