Next time, use Congress to investigate the president

The usual response to this proposal is that Congress is not set up to run the sort of investigation that Robert Mueller just concluded. And perhaps it is not, at present. But, if it wanted to be, it could be. Congress, remember, created the agency for which Mueller works. If, going forward, Congress sought to take on those functions itself when the target was the president, it could do so with impunity. Congress can set its own budget. It can create its own committees. It can hire as many staff as it wishes. It can subpoena whomever it wants, at any point, and for any reason. The possibilities are practically endless. “We haven’t done that yet” is not a solid excuse.

Better still, as a separate branch of government, Congress can run its investigations without any fear of executive interference — and thus without any fear of “obstruction of justice.” Had Congress decided to look into the Trump campaign and its relationship with Russia, nobody would ever have asked whether its investigators would be fired or whether the White House would limit the necessary resources or whether executive staff were exhibiting loyalty to the country or to their boss. There would have been no confusion as to which actions were taken in good faith and which were not. And, most crucially of all, there would have been no fights over whether the investigation should or should not recommend charges, or discussions about whether a sitting president can be indicted. It has been argued by both Trump’s supporters and critics that the core problem with the Mueller investigation was that it focused too heavily on whether Trump had committed a crime. Because the punishment meted out by Congress is impeachment, and because impeachment is ultimately a political rather than a legal process, the hyper-legalism that stained the Mueller affair would have been replaced with a set of better questions — and, perhaps, with a set of more appropriate expectations.