Note: since my last post the world has lost another lion of congressional oversight, Mort Rosenberg, who for 35 years was every House and Senate committee’s “go to” expert at the Congressional Research Service for advice and assistance on congressional investigations, executive privilege, vacancies, and many other issues. Mort is mentioned in this post as he has been in many others over the years. He will be greatly missed.
Today concludes the series of posts I began on April 8 on “Immunity, Impeachment and Juristocracy.” The prior posts are as follows:
Part I: Unoriginalist Sin (Apr. 8, 2025)
Part II: Nixon v. Fitzgerald (Apr. 9, 2025)
Part III: “Core” Official Conduct (Apr. 13, 2025)
Part IV: Noncore Official Conduct and Evidentiary Use (Apr. 17, 2025)
Part V: Above the Law (Apr. 27, 2025)
Part VI: Chilling Doom (Apr. 30, 2025)
The upshot of these posts is that Congress cannot rely on other branches or institutions to police, punish or deter executive branch crime or wrongdoing. This is most obviously true of the president, but it also applies to subordinate executive branch officers. Therefore, Congress must assume this responsibility itself.
Historically, congressional investigation of executive branch wrongdoing has generally been an outgrowth of ordinary congressional oversight. Only rarely do such investigations turn into (or begin as) formal impeachment inquiries and even more rarely does the House actually impeach an officer of the executive branch. And, of course, the Senate has never convicted a president or other executive branch officer. The primary consequences for executive branch wrongdoing have been reputational (amplified through the media), forced resignation, firing, and criminal sanctions. But for the reasons discussed in the prior posts (and illustrated by daily headlines), these consequences are much less likely than they once were and their deterrent effect has dramatically diminished if not evaporated.
Professor Jonathan Shaub has posted this article which grapples with the difficulty of holding the executive accountable in the current legal and political environment. See Jonathan David Shaub, White House Inspection, 103 Wash. U. L. Rev. __ (forthcoming 2026). He argues that Congress is ill-equipped to fill the gap:
Congress as investigator—whether pursuant to legislative oversight authority or impeachment authority—has a number of shortcomings, many, but not all, of which are well-known and noncontroversial. First, and perhaps most obviously, Congress is partisan, and, in our current polarized environment, this partisan character combined with the dominant two-party system hampers both the reality and perception of congressional investigation. Second, Congress lacks the ability to enforce its investigative demands on any realistic timeframe. Third, perhaps less obviously, Congress is a poor choice because it lacks expertise and key institutional incentives—in part because of its politicization—related to the confidentiality of investigative files.
White House Inspection, supra, at *42.
None of these concerns are unfounded, but, as discussed below, I think there are reasonably persuasive responses to each. Whether Congress will prove capable of meeting the challenge of the present moment only time will tell. But in a very real sense there is no alternative. Congress is the only institution with the inarguable constitutional authority and duty to hold the executive accountable. Even Shaub’s proposal (which we will discuss shortly) depends in large part on Congress fulfilling the role the framers entrusted to it. Continue reading “Impeachment, Immunity and Juristocracy (Part VII: What Should Be Done)”