A political pundit recently remarked how lucky we are to have a Constitution which dictates separation of powers so that a U.S. president cannot simply dissolve congress the way Boris Johnson did in the UK. However, I'm afraid it's not time to celebrate just yet because that separation of power clause has its own serious flaw. In particular,when our founding fathers separated powers, the executive branch was not only given the sole power to enforce the laws passed by congress but also, by default, the sole power to prosecute corruption and abuse in its own branch. We have already seen how badly this type of self policing can backfire in local and state governments. It simply took the 45th president to see how this same flaw could effectively break the federal government.
We now see the consequences of this flaw on a daily basis. The House requests information or the appearance of an executive branch official as part of its constitutionally mandated oversight of the executive branch. The executive branch, in turn, thumbs its nose at the House. The result, stalemate. Congress can subpoena the documents or personnel but it can't enforce those subpoenas. It can vote officials who fail to appear or who stonewall in contempt but it cannot enforce that contempt vote. That power is in the executive branch. It can't even get a legal action started because, again, it is the job of DOJ to prosecute which is part of the executive branch. It can only hire its own lawyers and attempt to get the courts to side with it. Even if the court sides with it, it is then up to the executive branch to enforce whatever the court orders. Without the power to prosecute and enforce, the house's investigative actions are moot. Imagine the FBI investigating the mafia if it had no power to force people to hand over documents or compel them to testify.
Some have suggested that the Constitution does provide one remedy for this lack of enforcement power in congress, that is under control of congress, namely impeachment. Congress does not need the DOJ to impeach a president or vote him out of office. However, I would argue that this mechanism is as fundamentally flawed as separation of powers when it comes to corruption or abuse of power by the executive branch. The reason is that rather than being based on the rule of law and legal institutions, impeachment is a political act. High crimes and misdemeanors sounds like a legal term but it is in reality political since it is not based in the law. There are no set of statutes that define specifically what behavior constitutes high crimes and misdemeanors. There are no rules of evidence that govern what is or is not admissible. Congress does not have the same power as the DOJ to obtain evidence or witnesses when the parties refuse to cooperate. The jury (i.e. the Senate) is not required to adhere to the law the way a jury is in the courts. Senators can vote guilty or not guilty for whatever reasons they want. There is no appeal process.
So how could we fix this ? I believe there should be a distinct government ethics and abuse of power enforcement agency which has the same kind of investigative and prosecutorial resources as the department of justice but which only deals with corruption and abuse of power by government officials whether they are in congress,the executive or the judiciary. This agency would have quasi independence from the other branches of government similar to the Federal Reserve and would constrain itself to investigating violations of ethics and anti-corruption laws passed by congress. They would have the ability to prosecute and should officials be found guilty, to enforce the will of the court. The agency would be staffed by career investigators and prosecutors, not political appointees. While such an agency would not be a panacea for corruption and abuse of power, it would certainly be a big improvement over the seriously flawed system we have now.