Investigative Branch of Government

[Jonathan Buhacoff]

Proposal:

An independent Investigative Branch of government works to hold elected officials, appointed officials, government employees, contractors, and the public accountable for following the law. Nobody is “above” or “beyond” the law and the Investigative Branch can investigate alleged violations by anyone, of any rank, including the head of the Executive Branch and the highest appointed officials in that branch, the elected officials in the Legislative Branch and their aids, the highest appointed officials in the Judicial Branch, and the head of the Investigative Branch itself.

The head of the Investigative Branch is required to investigate all allegations. Due to resource constraints that may occur, it is expected that the head of the Investigative Branch prioritize the work. However, the Investigative Branch has a duty to investigate all alleged violations of the law, and should not be allowed to categorically ignore certain violations. That is, given sufficient resources it must investigate all alleged violations in its prioritized order. The Legislative Branch may allocate funding specifically for some kinds of crimes to ensure that there is always a minimum level of resources allocated to them, but the Legislative Branch may not dictate the priorities. The Investigative Branch must return any allocated but unused funds to the treasury at the end of the year.

The Investigative Branch is uniquely positioned to investigate allegations of corruption and unethical behavior by government officials and contractors, and such investigations should be a high priority.

When power in the Executive Branch is transferred from one political party to another, an independent Investigative Branch is a control to prevent the Executive Branch from abusing its power to 1) stop investigations into allies, and 2) start frivolous investigations into opponents.

The other branches would have no power over the Investigative Branch to demand any investigations be started or cancelled, nor to remove any official or agent of the Investigative Branch from their position, except the impeachment of any officials for committing crimes or corrupt behavior. However, a mere opinion that an official isn’t doing their duty is explicitly not grounds for an impeachment, because that can easily be abused by the Legislative Branch to remove an official for simply exercising their own discretion on what to investigate as is their mandate according to this proposal. To address any opinions of Investigative Branch officials not doing their job — the top official would be replaced in the next election anyway due to term limits, and for any subordinates the top official has the authority to separate them if they are not performing according to expectations.

The Investigative Branch needs additional safeguards against politically motivated investigations (or non-investigations). First, a newly elected official of the Investigative Branch must be prohibited by the constitution from cancelling any ongoing investigations. If a prior elected official started an investigation, and the new elected official doesn’t agree with it, the newly elected official is bound by the duty of the office to continue that investigation. Second, any investigation into an elected official or candidate for office requires the Investigative Branch to form an advisory panel to consider special issues and report on them — however that panel would not have any authority to direct the decision-making of the investigating agent.

The Investigative Branch would have a special office dedicated for receiving and assessing “whistleblower” complaints, which are allegations by a person working for any business organization or government agency about criminal or unethical behavior, or any past, present, or imminent harm to the public.

The Investigative Branch would have a special office dedicated for investigating allegations against its own personnel. It is expected that all personnel and especially the officers and investigators working for the Investigative Branch are law abiding citizens. However, in the event that an employee or contractor of the Investigative Branch is accused of a crime, it is imperative that they are treated the same as anyone else — neither receiving preferential treatment nor harsher treatment. A suspension of work during the investigation should be routine, but the special office for internal investigations must consider the work being done by the person being accused, and whether the allegation itself might be a tool to interfere with or obstruct a lawful investigation, and make a determination.

The head of the Investigative Branch shall maintain an adequate roster of investigators with security clearances, issued by the Investigative Branch itself, who can investigate matters involving classified material. If the Executive Branch attempts to use classification as a means to hide wrongdoing or to hide facts that are embarrassing to the officials in the Executive Branch, the Investigative Branch can traverse such attempts by assigning the case to an individual or team with sufficient clearance. The head and second in command of the Investigative Branch are empowered to access any information available to the head of the Executive Branch during an investigation.

At the federal level, the Investigative Branch would include organizations such as the Federal Bureau of Investigation (FBI) and the Government Accountability Office (GAO). However, the law-enforcement aspect of the FBI would be remain in the Executive Branch as a separate agency (possibly named the Federal Police) and the crime-prevention aspect of the FBI such as investigating imminent threats would remain in the Executive Branch as a separate agency or merge with the Central Intelligence Agency (CIA) or the National Security Agency (NSA).

The head of the Investigative Branch should be elected by the people, to provide independence from the other branches and a mandate for focusing on whatever promises were made in the election.

Whereas in the United States the Justice Department has a policy of not investigating a sitting President, the Investigative Branch would have no need for such a policy. A mere investigation does not undermine the office of the President, in fact an investigation strengthens it because either the President is cleared of wrongdoing and the matter is dropped, or the President is found to have committed crimes against the United States in which case the matter must be pursued aggressively and result in either acquittal or conviction. The office of the President is much more important than the person in the office, and it’s important for a democracy to be led by a person who follows the law.

The head of the Investigative Branch may hire employees or appoint investigators and prosecutors. The primary requirements are for any attorneys to be properly licensed and allowed to practice law in the courts where they will be filing motions. Whether the hired or appointed attorneys were already in government or not prior to their hiring or appointment in the Investigative Branch doesn’t matter. When hired or appointed by the head of the Investigative Branch, new employees or appointees must make a pledge of fulfilling their duties in accordance with the Constitution and all applicable laws and regulations. In hiring and appointment decisions, the head of the Investigative Branch is only constrained by the overall budget of the branch, which is set by the legislature. The legislature may not direct how the funds are spent by the investigative branch other to require ethical principles and anti-corruption rules to be followed, such that the money is spent solely on the duties of the investigative branch and not to personally benefit any member of it or their associates.

At the state level, the attorney general position must be separated into its executive and investigative functions. The position of attorney general would stay in the executive branch as the main legal advisor to the governor and to handle a variety of legal matters — everything other than investigations. The investigation function would be separated into a new role of director of investigations, which would be the most senior elected official of the Investigative Branch in the state. The state’s auditor also belongs in the investigative branch. Instead of electing an auditor, the people would elect the director of investigations, and that director would then appoint an auditor and all other subordinate officials. The state should allocate money specifically for the auditing function.

Candidates for this office should run on a promise of investigating alleged violations in a non-partisan manner and should have a track record of non-partisan law enforcement work at the federal or state level, but the people will choose whatever they choose. At the very least, educational courses about government should include these ideals when teaching about the Investigative Branch.

How long should the term be? Please see the term limits topic.

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