Presidents, Pardons, and Prosecutors: Legal Accountability and the Separation of Powers

Abstract

This article compares the philosophies of what I call “categorical separation of powers” and “checked separation of powers” with respect to a single concern: the capacity of government structure to promote executive fidelity to the rule of law. The thesis, illustrated by the Iran-Contra episode, is that the advantages offered by checks and balances in promoting the rule of law are significant, and that categorical separation tends to subvert, rather than encourage, executive conformity to law. Promoting the rule of law is only one aspect of sound governance; political accountability, policy coherence, and efficiency require separate consideration. Yet, the link between the rule of law and the separation of powers is at the core of both the historic and the current appeal of separation of powers as a principle of government structure. Most citizens would hesitate to consciously trade much by way of legality to achieve other governmental virtues.