All The President’s Lawyers—Problems and Potential Solutions in Prosecuting Presidential Criminal Conduct

Following the presidential election of 2016, the United States has found itself in a constitutional crisis, the likes of which the Framers could not have anticipated. The evidence currently mounting against President Donald Trump regarding possible Russian collusion has sparked a number of controversies, including the President’s unilateral firing of FBI Director James B. Comey in the middle of a formal investigation into the Trump Administration’s ties to Russia. Despite this potential obstruction of justice, the sole governmental entity with any enumerated constitutional authority to bring punitive action against a sitting president, the legislative branch, has been politically reticent to take any action against President Trump. While Special Counsel Robert Mueller has been tasked with the Russia investigation, there is no precedent in American law that would permit any entity from bringing criminal charges against a sitting president without Congress’s willingness to draft and try articles of impeachment. Further, the current laws governing a special counsel’s abilities severely limit any vital impact he or she may have in the face of a politically biased Congress. This Note proposes the resurrection of Title VI of the Ethics in Government Act of 1978, which gave special counsel broader authority while conducting investigations into potential executive-branch abuse of power. Additionally, this Note further advocates for an expanded role for the judicial branch in investigating and, if necessary, compelling congressional action through judicial review in situations where an executive-branch abuse of power remains congressionally unaddressed despite special-counsel recommendations.