The results of the 2016 elections will no doubt shape policymaking in a wide range of areas across the Federal government. The impact on government investigations should be far less direct if the system works as it should. Our law enforcement and regulatory agencies are, after all, designed to be driven by facts and not politics and the longstanding concept of prosecutorial discretion gives our prosecutors, and not politicians, broad authority as to decisions on investigations and criminal charges. The exercise of investigative and prosecutorial authority in our system is intended to be apolitical and insulated from political pressure, but reality has not always mirrored that ideal.
The elections could clearly impact or even drastically change the policies and priorities that are often reflected, to at least some degree, in investigative decisions by prosecutors, regulators, law enforcement agencies and Congress. Consider some examples:
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As a result of the 2016 elections, the Department of Justice will be led by a new Attorney General and managed, to a significant degree, by new political appointees in a variety of senior level positions. The overwhelming majority of Justice Department lawyers, in Washington and in U.S. Attorney’s offices across the country, will remain seasoned career professionals, responsible for making most day to day decisions on their cases. Those lawyers, and their decision-making, will, however, be impacted by new policies, legal interpretations, and investigative priorities established by the Department’s new leadership, whose views on legal issues and on how best to use the Department’s limited resources may be radically different from their predecessors. The same will be true in U.S. Attorney’s offices across the country, led mostly by new Presidentially-appointed U.S. Attorneys whose management and priorities will guide AUSAs bringing and trying individual cases. The FBI and other Federal investigative agencies, like Justice Department career prosecutors, could be impacted by any major changes in Department-wide policy, legal interpretations, or prosecutorial priorities.
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Post-election, Federal Inspectors General (“IGs”) for the major Departments, will retain their statutory grant of independence with respect to investigative decisions, even though their Departments will be led by new political appointees. Congress envisioned the statutory IGs as independent, in-house watchdogs with broad investigative and audit authorities. To protect that independence, the Inspector General Act gives those IGs broad authority to “make such investigations….as are, in the judgement of the Inspector General, necessary or desirable”. In short, absent notice to Congress of a very limited statutory national security exception, the Secretary of the Department cannot require the IG either to initiate or terminate an investigation. While it is true that Departmental IGs are presidentially appointed, the statute limits justification for termination by the President and requires notice to Congress. Given their statutory independence, their broad investigative authority, and the provisions addressing termination, national election results would most likely not significantly impact self-initiated IG investigations. Note, however, that in cases where the IG seeks a prosecution based on their investigation, they work closely with Justice Department prosecutors, whose decisions on investigative priorities and charges could be impacted, as described above.
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In Congress, the elections will have perhaps their greatest and most direct impact on those “government investigations” conducted by the Senate and the House of Representatives. Changes in Congress, whether in the House or Senate majorities, in the leadership of committees and subcommittees, or even at the Member level could directly impact how Congress exercises its considerable investigative and oversight powers. Congress has the power and resources needed to conduct lengthy investigations, often resulting in detailed investigative reports and high-profile public hearings. Congressional committees and subcommittees often have broad jurisdictional grants and, unlike law enforcement investigations and criminal prosecutions, operate under relatively few rules addressing their investigative scope or methods. Most major investigative decisions fall squarely within the discretion of the committee or subcommittee Chair. As a result, election-driven changes in the leadership can vastly alter not only what or whom a committee or subcommittee investigates, but also how it conducts the investigation. Aside from committee and subcommittee investigations, Congressional committees, subcommittees and Members can also formally request investigations by the Government Accountability Office (“GAO”) and by the various Inspectors General. Considered to be the “Congressional Watchdog”, GAO strives to accommodate Congressional requests for investigations, audits, and evaluations. The IGs, given their statutory obligation to “keep the Congress fully and currently informed”, work with Congress on many issues and generally decide whether to conduct a Congressionally requested investigation on a case by case basis. In short, changes in Congress at the leadership and/or Member level could also impact, at least to some degree, the nature of investigations conducted by GAO and the IGs.
