Monday, May 28, 2018
Andrew Kent (Fordham University School of Law) has posted Congress and the Independence of Federal Law Enforcement (Forthcoming in 52 U.C. Davis Law Review (2018)) on SSRN. Here is the abstract:
Not since the Nixon presidency has the issue of the professional neutrality and independence of federal law enforcement from White House interference or misuse been such a pressing issue. This article describes the problem, details Congress’s important role in responding to it during the 1970s, and makes specific recommendations for Congress today. As important background, this article recounts the abuses of the Hoover era at the FBI, and the ways the Nixon White House sought to both impede and corrupt the Department of Justice and the FBI. It then provides a rich description of what an engaged Congress looked like—the Congress of the 1970s—when it reacted to these abuses by helping to develop laws, structures, and norms of law enforcement independence and neutrality that served this country well for two generations. Drawing both on ideas floated in Congress post-Watergate, as well as institutional design features from independent regulatory agencies, this article then suggests a menu of options for a future Congress, if it could move beyond gridlock and partisanship to engage again with pressing issues about the White House's relationship to federal law enforcement. Most options I survey here are constitutionally uncontroversial. But two options, both of which were proposed by reformist Senators soon after Watergate, are more aggressive and constitutionally problematic: statutory qualifications limiting the range of appointees for senior DOJ roles, and a statutory for-cause restriction on the President's ability to remove the FBI Director. After setting out arguments for the constitutionality of these proposals, I conclude with a menu of concrete policy recommendations for a future Congress that wishes to get off the sidelines and again play a constructive role in protecting the country from the abuse and misuse of our powerful and essential federal law enforcement institutions.