Revive the Ethics in Government Act

Congressional Reform for a New Era

In the aftermath of Watergate, Congress enacted sweeping reforms to restore public trust and strengthen accountability, including campaign finance rules, the creation of the Federal Election Commission, the Ethics in Government Act, and the War Powers Resolution--measures that reshaped the balance of power and continue to shape American governance five decades later.

Against that backdrop, the Daily Journal invited constitutional law professors, legal historians, and good-government advocates--experts in constitutional structure and reform from across the ideological spectrum--to answer a timely question: If Congress were to enact a new round of reforms today, meant to endure for the next 50 years, what one reform would you propose, and why? This is the first installment in a six-part series.

The abuses of power during the Nixon administration led Congress to adopt several statutes to check the president and prevent corruption. One of the most important of these was the Ethics in Government Act, which created the office of the independent counsel to investigate and prosecute alleged wrongdoing by the president and high-level government officials. Although some provisions of that law remain, the authority for the independent counsel expired on June 30, 1999. Congress should reenact the authority to uphold the most basic precept of the rule of law: No one, not even the president, is above the law.

There are many reports of alleged corruption by President Donald Trump and those around him: His family launching cryptocurrency ventures at the same time that he signed an executive order favoring the crypto industry; accepting a roughly $400 million luxury Boeing 747 jet as a gift from Qatar, which will reportedly go to his presidential library; international real estate projects with foreign entities, including in Saudi Arabia and the UAE, while conducting Middle East policy. There have been allegations of favoring donors by ending regulation or providing pardons.

But who will investigate this as to Trump or his family or high-level government officials who may have broken the law? Does anyone realistically believe that Pam Bondi would do so? Indeed, the Ethics in Government Act was adopted after seeing John Mitchell, a close ally of Richard Nixon, go from being Attorney General to head the Campaign to Reelect the President and realizing that there was a need for an independent counsel to investigate the president and those in high level offices.

The Ethics in Government Act of 1978 provided for the appointment of an "independent counsel" when there were credible allegations of illegal conduct by the president or a high-level executive official. Upon request from the United States Attorney General, a panel of three federal judges, who had been appointed by the Chief Justice, would select an independent counsel. Once appointed an independent counsel could be removed only for "good cause" and only by these judges.

Many independent counsel were appointed under this law, such as for the Iran-Contra scandal during the Reagan administration and the Whitewater investigation during the Clinton presidency. In 1988, in Morrison v. Olson, the Supreme Court upheld as constitutional these provisions of the Ethics in Government Act.

Alexia Morrison was appointed as independent counsel to investigate three former high level executive branch employees who refused to provide documents to congressional committees concerning the administration of the Superfund Law, a major environmental protection statute. The subjects of Morrison's investigation argued that the Ethics in Government Act was unconstitutional in both the manner of appointing the independent counsel and in the limits on removing the person from office.

The Supreme Court, in a 7-1 ruling, rejected these constitutional objections and upheld the act. Chief Justice William Rehnquist wrote for the court. As for the appointment power, he explained that Article II of the Constitution provides that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." The court found that the independent counsel was an "inferior officer" in that she could be removed by the Attorney General for cause and because she possessed less powers than the Attorney General.

The challengers to the Act invoked the unitary executive theory in arguing that limiting removal to where there is good cause impermissibly interfered with the president's exercise of his constitutional powers and that the law violated separation of powers by reducing the president's ability to control prosecutions. The Supreme Court expressly rejected these arguments. Chief Justice Rehnquist wrote, "we have never held that the Constitution requires that the three branches of Government operate with absolute independence." He stressed that "this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch."

But in 1999, Congress let the authority for the independent counsel in the Ethics in Government Act expire. After Kenneth Starr's investigation of Whitewater shifted to looking at President Clinton's sexual relationship with Monica Lewinsky, Democrats turned against the law. Republicans generally did not like it because of its origins in response to the Nixon presidency and its use during the Reagan years.

But it was a mistake for Congress to end this authority. There is inevitably more public confidence when an investigation is conducted by someone who is completely independent of the incumbent administration. Also, without an independent counsel, allegations of criminal conduct often never will be investigated.

There are several possible objections to renewing authority for the independent counsel. One argument against it is that it is unnecessary: The Attorney General can appoint a special counsel, as was done during the Biden administration with the appointment of Robert Mueller and Jack Smith. But these examples show the essential difference when compared with an independent counsel who is not part of the Justice Department. Smith was fired when Donald Trump took over and the prosecution ended. Also, Mueller was constrained by Department of Justice policy, as he was a part of it, and as a result, he said that he would not consider in his report and offer no opinion as to whether Donald Trump engaged in obstruction of justice. An issue of the utmost importance was thus not addressed in the Mueller Report, and it opened the door to Attorney General William Barr spinning the Report as exonerating Trump.

A second objection is that because of Trump v. United States (2024), the president has absolute immunity from criminal prosecution for his officials acts. But there is no immunity outside of official acts and others in the government have no such immunity. And even if the independent counsel concludes that the president cannot be prosecuted, there is still a benefit to an independent investigation. The Watergate grand jury in March 1974 felt it could not indict President Richard Nixon, so named him an unindicted co-conspirator. This was important even though there was no prosecution.

Finally, there is concern that there are not sufficient checks on the independent counsel. This is a serious issue. But the alternative of Justice Department control over such investigations, with no check on its ability to ignore criminal wrongdoing, is much worse.

In a country committed to the rule of law, no principle is more essential than that no one, not even the president, is above the law. Allegations of misconduct, especially possible criminal activity, must be investigated by individuals who are truly independent of the administration. That is why Congress should again create the authority for special prosecutors that existed under the Ethics in Government Act.