Having addressed the constitutional issues, I now turn to the policy issues Would it be a good idea to have a new IC statute? This is a complicated issue and not one I have fully made my mind up about. But if Congress were to enact a new IC statute, I believe there is a reform that would significantly improve its operation as compared to the old statute.
The biggest problem with the old IC statute is the incentives it gave to the IC. If one is appointed to be an IC, there is a sense in which one is only successful if one hauls in a big fish – if one prosecutes and convicts someone for a significant crime. Moreover, the IC has only one task – to investigate a single target – in contrast to a normal prosecutor who has many other possible prosecutions to investigate. Consequently, the IC has more time and resources to devote to the one target. These considerations provide the IC with an excessive incentive to prosecute the person they are investigating.
There is a way to address this problem. There should be two ICs that undertake the task of investigating and prosecuting an official. The first IC’s job should be to investigate. At the conclusion of his investigation, he should issue a report which makes the following determinations: (1) whether there were any violations of federal law, and if so, (2) whether based on normal standards of prosecutorial discretion, those violations should be prosecuted. If the prosecutor concludes that violations should be prosecuted under (2), then he refers these violations to the second IC, who can only prosecute these violations.