A Barr-Trump Commission of Inquiry?

I've been looking into the use of "commissions of inquiry" around the world as part of a project on what the South African Constitution calls "institutions for protecting constitutional democracy." On the obviously contestable assumption that Biden wins the presidency in November, I think there's a decent case to be made for creating a commission of inquiry to investigate the actions of the Department of Justice during the Trump administration.

The aim would be to find facts, not recommend prosecution. My current thinking, which I suspect is going to become the conventional wisdom (not because of my efforts) is that it would be a bad idea for a Biden administration to pursue criminal charges against high-level officials of the Trump administration for actions that, while perhaps fitting within existing criminal statutes, are basically political offenses. I'd make an exception for ordinary financial corruption of a direct quid pro quo sort, but even if Emoluments Clause violations might be so described, I would exclude them from prosecution as well.

In the United States commissions of inquiry tend to be what I call policy-focused rather than incident- or event-focused, although the distinction is blurry. The Kerner Commission, recently in the news, was formally charged with investigating the causes of specific civil disorders, but its focus was from the start on broad policy issues. In contrast, elsewhere commissions of inquiry can be incident-focused from the start, then broaden. The Stephen Lawrence inquiry in Great Britain, for example, began by attempting to figure out exactly why a brutal race-based murder hadn't been investigated or prosecuted effectively, and the commission's report devoted hundreds of pages to that question before turning to questions of institutional racism in the prosecution and police agencies.

The (imagined) Barr-Trump commission of inquiry would be purely incident-focused, though I suppose a final report might say something (reasonably obvious) about the importance of normative "guardrails" (as distinct from legal limitations) to ensure compliance with the rule of law.

Designing the commission wouldn't be easy, though some parameters are obvious. The commission would have to be as bipartisan as is possible these days -- which means co-chairs, and no "Never Trump" Republicans. Some possibilities would be to have a couple of former Solicitors-General as co-chairs, with Don Verrilli and Paul Clement as pretty obvious candidates.

A common issue for incident-focused commissions is the protection against criminal liability for witnesses, including those who are the primary "targets" of the inquiry. It also seems to me obvious that witnesses should be given use immunity for their testimony, and it might make sense to give them transactional immunity. (Frankly, I don't know enough to say whether either of those things could be done by Executive Order, which is how U.S. commissions of inquiry are ordinarily established. But it might be a good idea for the commission to have a statutory basis anyway -- assuming that a statute could be enacted by the new Congress. That assumption, of course, raises much broader questions about the possibility of legislation under the assumed Biden administration.)

A couple of final comparative notes: Elsewhere some of the incident-focused things commissions of inquiry do are done by constitutionally independent Ombuds offices -- though it's a mistake to romanticize such offices as the cure-all for government misconduct. And, although I suspect that, if the idea of a commission of inquiry takes hold, people will automatically refer to the South African Truth and Reconciliation Commission. I think that would be a mistake, in part because the "reconciliation" mission seems to have undermined the"truth" mission -- and because reconciliation (to what might turn out to have been widespread violations of rule-of-law norms if not of laws themselves) isn't really what we should be after.