Though Walker acknowledges that Congress does not have the resources to conduct serious criminal investigations of the executive branch, he offers a straightforward solution: They ought to build this investigative capacity, which they have the constitutional authority to do. And if Congress fails to do so, voters have the right to elect members who will take their responsibilities more seriously. To those who find this solution overly ambitious, Walker offers an alternative: splitting the FBI between an agency focused on criminal investigations, which would be shielded from political interference, and another devoted to protecting U.S. national security against foreign threats. Note, however, that Walker does not recommend splitting the agency. His preferred alternative, it seems, is for Congress to take the lead in investigating the executive branch.
This, however, raises a separate concern, which Daryl J. Levinson and Richard Pildes, both of NYU Law School, addressed in their article “Separation of Parties, Not Powers”: the Framers assumed that the legislative branch would be eager to check the powers of the executive branch, but what they failed to anticipate is that partisan loyalties might outweigh institutional loyalties. That is, partisans in Congress might not be especially interested in investigating a partisan ally in the White House. Relations between the branches tend to be cooperative under unified government and contentious under divided government, which is why Walker’s preferred alternative, in which Congress steps up to the plate to investigate presidential wrongdoing, might only obtain when the partisan stars are (mis)aligned. If Walker really is right that an independent FBI represents a serious civil-liberties threat, splitting the FBI seems like the sounder solution.