Amicus Curiae Brief — Morrison v. Olson

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|. Suprenne Court, US.

» RILED

No. 87-1279 APR a 1988

Iu the Supreme Court of the United

OCTOBER TERM, 1987

ALEXIA MORRISON, INDEPENDENT COUNSEL, APPELLANT

Vv.

THEODORE B. OLSON, ET AL.

ON APPEAL FROM THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING APPELLEES

CHARLES FRIED

Solicitor General

JOHN R. BOLTON

Assistant Attorney General

LoutIs R. COHEN

WILLIAM C. BRYSON

Deputy Solicitors General

JAMES M. SPEARS

ROBERT J. CYNKAR

Deputy Assistant Atte -neys General

EDWIN S. KNEEDLER

RIC4ARD G. TARANTO

Assistants to the Solicitor General

ROBERT E. Kopp

DOUGLAS LETTER

THOMAS M. BoNDY

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

The United States will address the following question:

Whether the Ethics in Government Act of 1978 vio-

lates the Constitution in providing for a court-appointed

“independent counsel” who is empowered to conduct

criminal prosecutions but who is not accountable to the

President for the exercise of that power.

(1)

TABLE OF CONTENTS

Interest of the United States ................---------------1-------+

Introduction and summary of argument ...................-....

Argument:

I. The independent counsel statute unconstitution-

ally takes executive power from the Presi-

Ta. cuisseepesncenonccecrvopeesereecccoonce sess

Il. The independent counsel statute violates the Ap-

Il.

pointments Clause ..............------------------

A. The Appointments Clause does not permit

Congress to vest the appointment of execu-

tive officers in the courts of law -...................

B. An officer who exercises prosecutorial power,

and who is not subordinate to anyone in the

exercise of that power, is not an “inferior”

cs serseevec-ewamweeenaseresscoocesoecs

The limitations on the removal of the independ-

ent counsel are inconsistent with this Court’s

decisions in Myers, Humphrey's Executor, and

Nc cceseccnnamscncrevewcconeneencsscococoosccccncesees

IV. Neither this Court’s decisions nor prior federal

practices provide precedent for vesting purely

executive power in an officer who is appointed

by a court and is not accountable to the Pres-

Sc veccceseecenonenverssennnsernccernnnssccocenensenenessoee=

V. The independent counsel statute is not constitu-

tionally justified by Congress’s desire to elimi-

nate supposed conflicts of interest in certain

criminal investigations and prosecutions ............

Comelusion ..........---.------0---0-----.-0----ccerne----oeeecennnnssnnronserenes sees

TABLE OF AUTHORITIES

Cases: Page

Abbott Labs. v. Gardner, 927 U.S. 136 (1967) -.. 2

American Trucking Ass’ns, Inc. V. ICC, TAT F.2d

787 (D.C. Cir. 1984) ..-.-----------cee nnn 2

Anderson V. Dunn, 19 U.S. (6 Wheat.) 204

Hee | ee apnea a ) 35

Atkins v. United States, 556 F.2d 1028 (Ct. Cl.

1977), cert. denied, 434 U.S. 1009 (1978) -...------ 45

Barry v. United States ex rel. Cunningham, 279

U.S. 597 (1929) --------------2-- a aetiastaamennasniatnne 35-36

Blair v. United States, 250 U.S. 273 (1919) -.-------- 2

Bowsher V. Synar, No. 85-1377 (July 7, 1986) .... 1, 2, 5, 9,

11, 15, 19, 37 41

Brown v. United States, 959 U.S. 41 (1959) ---.----- 11

Buckley v. Valeo, 424 U.S. 1 (1976) -------------00200 00> passim

CFTC v. Schor, No. 85-621 (July 7, 1986) -...------- 42, 43

Chabal v. Reagan, No. 87-5751 (3d Cir. Mar. 14,

can aceneashennlononeemnn iia arene 32

Chandler v. Judicial Council of the Tenth Circuit,

Collins V. United States, 14 Ct, Cl. 568 (1879)... 25,27

Confiscation Cases, 74 U.S. (7 Wall.) 454

Connelly v. United States, 249 F.2d 576 (8th Cir.

1957), cert. denied, 356 U.S. 921 (1958) ....------ 47

Gardner v. Toilet Goods Ass'n, 387 U.S. 167

(1967) —---- 2

Go-Bart Importing Co. v. United States, 282 U:S.

944 (1931) ....---------- 40

Hayburn’s Case, 2U.S. (2 Dall.) 409 (1791) -.------ 23

Heckler v. Chaney, 470 U.S. 821 (1985) ----------- 10

Hennen, Ex parte, 22 U.S. (13 Pet.) 230 (1839). 18, 22,

26, 34

Hobson v. Hansen, 265 F. Supp. 902 (D.D.C.

Rr Narn mere 18, 40

Humphrey's Executor V. United States, 295 US.

GOB (IGBE) ..------20 9, 29, 30, 31

INS v. Chadha, 462 U.S. 919 (1983)... 1, 15, 19, 31, 37, 41

Jones v. United States, 179 F. 584 (9th Cir.

ae agers eee ee 48

Kendall v. United States, 37 U.S. (12 Pet.) 524

Seen mmm aes 8,9

Cases—Continued : Page

Linda R.S. v. Richard D., 410 U.S. 614 (1973) --. 37

M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316

CUBED) acaneennnnnnnnnecnnceonccrnnssenccoveenovnnneecnnsonenessnsvcssson 41

McGrain V. Daugherty, 273 U.S. 185 IS 36, 38

Miller v. United States, 24 F.2d 353 (2d Cir.),

cert. denied, 276 U.S. 638 (1928) -....-.------------- AT

Morgan v. TVA, 115 F.2d 990 (6th Cir. 1940),

cert. denied, 312 U.S. 701 (1941) ..............---------- 32

Muskrat v. United States, 219 U.S. 346 (1911)-...... 23

Myers v. United States, 272 U.S. 52 (1926) -....----- passim

Nathan v. Smith, 737 F.2d 1069 (D.C. Cir.

OED vcncnnneucennsosensocssnscnonssssasinenisosponssorenensomsananeensones 16

National Petroleum Refiners Ass’n V. FTC, 482

F.2d 672 (D.C. Cir. 1973), cert, denied, 415

U.S. 951 (1974) ...------------------++ pee at ee 29-30

Neagle, In re, 135 U.S. 1 €18BO) ......-0.--00---00---22-00+- &

Niron v. Administrator of General Services, 135

U.S. 425 (1977) ....-.------c-c-c-esec-nenesesecessnnsenenesncnsnneness 41-42

North, In re, No. 86-6 (D.C. Cir. Indep. Counsel

Spec. Div. (Order of Dec. 19, 1986)) ....... Teta 14

Northern Pipeline Constr. Co. V. Marathon Pipe

Line Co., 458 U.S. 50 (1982) .....--------------1-2-r 26

Olson, In re, 818 F.2d 34 (D.C. Cir. Indep. Counsel

Spec. Div. 1987) ......--------------- en 14

Ponzi v. Fessenden, 258 U.S. 254 (1922) ........-------- 10

President’s Comm’n on Organized Crime (Sub-

poena of Scarfo), In re, 783 F.2d 370 (3d Cir.

1986) .....2--...0------c0--ceeceenneseeees ait fe asenaiennll 23

Rice v. Ames, 180 U.S. 371 (1 | eens 40

Sealed Case, In re, 829 F.2d 50 (D.C. Cir. 1987),

cert. denied, No. 87-869 (Jan. 0. 1008) ......«-- 14

Siebold, Ex parte, 100 U.S. 371 (1880) ........ 33, 34, 35, 36,

37, 40

Springer V. Philippine Islands, 277 U.S. 189

(2008) _......-....----- Sere ne ca ee ee 10

Synar v. United States, 626 F. Supp. 1374 (D.D.C.

1986), aff'd, No. 85-1577 (July 7, 1986) .....----- 30

Tyner v. United States, 23, App. D.C. 324 (D.C.

Cr, 1904) ...-c.0.---------s-0+0-nseenscesnnnsnsoesnnenenensnsenserees 48

Ullman v. United States, 350 U.S. 422 (1956) —.... 11

United States v. Agnew, 428 F. Supp. 1293 (D.

8 = deidecsikbdncienentn stent 47

Cases—Continued : Page

United States v. Allred, 155 U.S. 591 (1895) ...... " 40

United States v. Babcock, 24 F. Cas. 913 (C.C.E.D.

Mo. 1876) (No. 14,487) -..-------------- eae ae AT

United States v. Burr, 25 F. Cas. 55 (C.C.D. Va.

1807) (No. 14,693) ......---------ccccec-seeesseseseeseeesente 47

United States v. Chanen, 549 F.2d 1306 (9th Cir.),

cert. denied, 134 U.S. 825 (1977)... 11

United States v. Cox, 342 F.2d 167 (5th Cir.),

cert. denied, 381 U.S. 935 (1965) -.......--------- 11

United States v. Deaver, No. 87-096 (D.D.C. June

United States v. Eaton, 169 US. $31 (1898) ......--- 27

United States, Ex parte, 287 U.S. 241 (1932)......--- 11

United States v. Ferreira, 54 U.S. (13 How.) 40

CRED Danna nencncnnessnveanonconsevovsnareoensscnonansnenonsonemnorvcesse® 23

United States v. Gatto, 763 F.2d 1040 (9th Cir.

I onc cnnnsccsnevsssnsvarecnitnnpusencnommbatenspesenoresonersanrrens 11

United States v. Germaine, 99 U.S. 508 (1879) ...... 25, 27

United States v. Hartwell, 73 U.S. (6 Wall.) 385

CRIB) nacaccnnononsenvsnnsnnseseonsensanennssareoucconssnonasonronstass 27

United States v. Malebran, 26 F. Cas. 1145

(C.C.D.N.Y. 1820) (No. 15,711) ---.--------00-0--0- 37

United States v. Mendoza, 464 U.S. 154 (1984)... 11

United States v. Nixon, 418 U.S. 683 (1974) ..10, 11, 27, 48

United States v. Perkins, 116 U.S. 483 (1886) ....... 9

United States v. San Jacinto Tin Co., 125 U.S. 273

(ROBB) ane ecnc on -nccoenesserasssonncnnvevonsnesossnenmverrwsenannennesess 8

United States v. Sells Eng’g, Inc., 463 U.S. 418

(ROB) aceneanenen---sornrnnnsennnveen-rererensenseiensacsncnmaresents sca 11

United States v. Solomon, 216 F. Supp. 835

(S.D.N.Y. 1968) ....--------------c-esceesssssesesseresesetressetee 39

United States v. Thompson, 251 U.S. 407 (1920) ....... 11

I'nited States v. Trobe, 28 F. Cas. 217 (D.C.W.D.

Pa. 1865) (No. 16,541) ....---------------creterererrrre 37

United States v. Will, 449 U.S. 200 (1980) -.....---. 45

United States ex rel. Marcus V. Hess, 317 U.S.

EST (1DEB) ....----<0-0-2------n-n-nceerensevsesnsnsnsrennsnsoreereres ta 37

Wayte v. United States, A470 U.S. 598 (1985) ..... 11

Wiener v. United States, 357 U.S. 349 (1958) -.-.--. 31

Wilcox V. Jackson, 38 U.S. (13 Pet.) 498 (1839) _.... 10

Young V. United States ex rel. Vuitton et Fils

S.A., No. 85-1329 (May 26, 1987) ...---------:2-000 10, 44

Vil

Constitution, statutes, regulations and rule: Page

U.S. Const. :

Art. 1:

BB nnn cnccsnscanensecesesesesennsenncsesssnsesnonesonenanensnensers 1

$2, C1. B nn.nncecencnsnensnsncnenensnensnsnsnsnceensnrennenens 46

So I eeeennnrnnn ns 46

|) EES eee ee 33

YT eo eens 35

§ 8:

eh Oe. cainnndenisiiamenmaaaamaaaenents 40

Cl. 18 (Necessary and _ Proper

CIRO) «. ..02-02000.e02000----nee--seessesnevereees 41, 43

$D, CI. & .....---n-neoeceeeesescensensenensesnsesnsnsnsnenenenses 45

Art. Il .. _-ceesseseety 15, 34, 42, 48, 44, 45

BD cn nccnnnccccenssnessesnsnsnsnseresesennsesenensnanenansavncsenss 1,5,6

Oe ee ______., ncusieseennscotuastcommammaseceonnets 45

Chen, BB onnnnccccsevscccsesecsersccoceccsessonensssovorss 2

Oe __ ... isiesecnineumoninesionmenensaianvesnioeaienes 45

§ 2:

CO O_o wicedsecnsonmsncnnctoresvscsasminienaanensonss 46

Cl. 2 (Appointments Clause) -............ passim

§3 (Take Care Clause) ..............-.---- 1, 5, 6, 43, 47

Go occcciccsesesecvsesevsvscovenevenssnansesneneensnasenscecoseanens 46

Bi TI on cenncenovenesonenesscesnasnenvescanesonse 10, 11, 15, 28, 43

GB anna nncencnsnsennnenencensnsnsnranenenseresenensneesnnenss 1, 23, 27

Art. IV, § 3, Cl. 2 ......--------------ceccereeeeesneneeennnnenenees 40

Bie oo ncavsceseeuvasnnnercacensiesssorensacesssnnpeonerancnasnesrns 45

Amend. TV .......:-.--------0----<-00----cnsesnenennconsnssnneneess 11

BY acc. .conn 2secenanseocense sess ee ee ee 11, 45

Amend. XII .........-.--------+-------0--2+--eecesnsenneenseenenssees 2

Act of May 26, 1824, ch. 163, 4 Stat. Oe. ccc aabeae ; 39

Act of Feb. 28, 1871, ch. 99, § 8, 16 Stat. ae 35

Act of Feb. 8, 1924, ch. 16, 43 Stat. 5-6 -...........-------- 48

Act of Nov. 10, 1986, Pub. L. No. 99-646, § 69,

100 Stat. 3616 ............----------1---eeeeeeereeteen 39

Classification Act of 1923, ch. 265, § 2, 42 Stat.

1488 27

VIII “a

Statutes, regulations and rule—Continued : Page Statutes, regulations and rule—Continued : a

Ethics in Government Act of 1978: 8 US.C. (1934 ed.) 49 a

2B U.S.C. 49 -neencnneeneeeecnnnseeeeecnnnenseeneccnnnnsssnnnenncte 1,12 BUSC. (1934 €€.) 5 enero 10

2B U.S.C. B28 ~.......--------ceenccceneeeneneeeceeees inspiideaeeias 44 RON SE ESI EE a a ae 99.53

28 U.S.C. (& Supp. III) 591-598 ~.............-------. 1 12 U.S.C. 242. EERE es

28 U.S.C. (Supp. III) 591(a) -.......------ 16 12 U.S.C. (& Supp. TV) 112 99.33

2B U.S.C. 592 (a) (2) -...------------eceeeeeeeeceseeeennereeeeees 16 15 USC. 41. 4B TTS po

28 U.S.C. 592(c) (1). ceeeeeeecceenenectcenenee 16 15 USC. (1940 ed.) 45 0. on

28 U.S.C. 593 (8) -----------------e-nevvvnnnrnteeeeentrnnnnnrss 12 15 U.S.C. (1940 ed.) 45(b) a.

2B U.S.C. 593 (1d) -.-------nnne-n-n-nnnesesreseeeeennenennnnnnnnees 14, 15 15US.C. (1940 ed.) 45 (ce) on

28 U.S.C. 594 (8) -..------nnnnn---nvvereeveerennerree seeeeeseee 12, 31 15 U.S.C. (1940 ed.) 46 GIR ro

2B U.S.C. BOA(C) -------------nnnnee-cevnnnveveneerrnnrerreem 12 15 U.S.C. (1940 ed.) 47. | pod

28 U.S.C. 594(d) -..-------------neee renee sanvencessence 12, 13 15 USC. (1940 ed.) 50 | -

28 U.S.C. 594(€) -..----------vneeeeveeeeenssensnnsnnnrnesennenees 14 I gs hace os

2B U.S.C. 594 (f) —-------nnnnnnnneereeererrnnnnerererreeree 13 A sh -

28 U.S.C. 595 (Dd) (2) -.-----------------eceereeeeeteee eee 15 eG NS ee a

28 U.S.C. 596 (a) (1) ebéndeccseoennecdeeceenoouseesetrecsqoosese 13 15 U.S.C. 2053 (a) ‘ae 29

28 U.S.C. 596(b) (2) -....--.--- ceseeneettetcennnnneeeennes 14 15 U.S.C. 2076(b)(7)(B) ro

2B U.S.C. 597 (&) ..-----------c-ceeeeeeceececeeeeeenntensseeneces 13 ~~" ti ll tals agamemmeaaaacaneane earaatamaaa -

Independent Counsel Reauthorization Act of 1987, -

Pub. L. No. 100-191, 101 Stat. 1298... 14 i“ cee nd

§ 2, 101 Stat. 1295 (to be codified at 28 U.S.C. STEER SS “ee oe 39

592 (m) (2) (IB) ) -nvevecennveceoveneeerneeevenseernceneen 16 0 ERAT 99

§ 2, 101 Stat. 1305 (to be codified at 28 U.S.C. aa .

596 (&) (3) ) .-------------c-coececeeeeceterseeeteeneerenennenes 15 NS SS 18

Judiciary Act of 1789, ch. 20, 1 Stat. 73: RUSC.711(a). a

§ 7, 1 Stat. 76 .a--neveennnsennecenseeneeneeessennnnecescenssteree 18 |” ESS CE Sean one ae 18

§ 2B, 1 Stat. BT —.--.e--conn--cecseeecesneeseenneesennnetnnennes 39 EES TTT TT 97

RRA Se eae 38 31 U.S.C. 3730(b) (2)... Hees

— ee se eae ae “St re ~~

hen. Se. CEES: 42 U.S.C. 7171 (i) cor eens -

enamine eceeaae see een = 47 USC. 154(c) ~ _ -

$1908 nn COS

— omens 49 US.C. (& Supp. 111) 11703 tee

SE emeraaNRa_nNRN terme teNeIinns TEN 35 Exec. Order No. 11,222, 3 CFR. 206 (1964- |

I uc uannilinrscsnclimacictmecension lg gu

§ SEES Eeaenneenn nn emnpemmenanemennemmsnarss 36 % >= hii laa ana ata ata i mas 44

SERS EES 35 gd

st Ie 32

5 U.S.C. (& Supp. IV) App. at 987-998... 47 — 0.39 ..... 48

So NN I eccsiseceshnantesnsneiorsencnaee 32 east ieoee ne 44

7USC. (2890. IV) 180-1 32

\ x

Statutes, reculations and rule—Continued : Page

Ped. B. Cov. FP. SCe) ........0 font Te PRT ST Ieee 40

Miscellaneous :

1 Annals of Cong. (J. Gales ed. 1789) :

en 19

ee 7

eee 17

TU UN lA te OG eee 49

Baker, The Proposed Judicially Appointed Inde-

pendent Office of Public Attorney: Some Consti-

tutional Objections and an Alternative, 29 Sw.

Be, GE CED. cccactinanitiiccraenieietenctenenntincnee 44

Comment, Qui Tam Actions: The Role of the Pri-

vate Citizen in Law Enforcement, 20 UCLA L.

, 2) .. en 37

J. Elliot, The Debates in the Several State Conven-

tions on the Adoption of the Federal Constitu-

tion (2d ed. 1836):

I TO erence ieibtariemenpmndanetlaninn 7,45

ee ee ee ee ee 45, 46

1 Encyclopaedia of the Socia’ Sciences (1930) .... 23-24

M. Farrand, The Records of the Federal Conven-

tion of 1787 (1937):

Os cn incieneiadnaanii Ss 6, 21, 23

MEIER. inciathcainiiaaiiniashitelaitineeeciabel 2, 19, 20, 21, 27, 45, 46

14 Fed. Reg. 25837 (1979) . 48

Frey & Geller, Better Than Independent Counsels,

The Washington Post, Feb. 14, 1988 —................ 44

Hearings on the Investigation of Requlatory Com-

missions and Agencies Before the Special Comm.

on Legislative Oversight of the House Comm. on

Interstate and Foreign Commerce, 88th Cong.,

OD I, Cade ath cleat acincataal idnmanaile 48-49

P. Hoffer & N. Hull, Impeachment in America,

ES re ee ee er 46

H.R. Conf. Rep. 100-452, 100th Cong., Ist Sess.

SESSA eR Behe Ser See CET OD Se ree 13

H.R. Rep. 684, 29th Cong., Ist Sess. (1846) ............ 49

H.R. Rep. 186, 44th Cong., Ist Sess. (1876) ............. 49

Miscellaneous—Continued : Page

H.R. Rep. 218, 44th Cong., 2d Sess. (1877) .............. 35

H.R. Rep. 3142, 49th Cong., Ist Sess. (1886) 49

H.R. Rep. 95-1307, 95th Cong., 2d Sess. (1978) . 14, 44

H.R. Rep 100-316, 100th Cong., Ist Sess. (1987)_. 14

S. Johnson, Dictionary of the English Language

I FU or ea 28

Miller, Independent Agencies, 1986 Sup. Ct. Rev.

a Rn ae aN ee Woe Oe ae 6

Model Penal Code (1985) 2.20... ..ccccccccccccccececceccceesee- 36

Note, The History and Development of Qui Tam,

I id cee semanas 37

tt. FF << < fF = — seem eens 8

2 Op. Att’y Gen. 482 (1831) piace 38

Removing Politics from the Administration of

Justice: Hearings on S. 2803 and S. 2978 Before

the Subcomm. on Separation of Powers of the

Senate Comm. on the Judiciary, 93d Cong., 2d

a 12

Responses of the Presidents to Charges of Miscon-

duct (C. Vann Woodward ed. 1974) _.............. 48, 49

S. Rep. 27, 69th Cong., Ist Sess. (1926) 49

S. Rep. 95-170, 95th Cong., Ist Sess. (1977) 10, 13, 14

S. Rep. 96-1015, 96th Cong., 2d Sess. (1980) ... 49

S. Rep. 97-496, 97th Cong., 2d Sess. (1982). —s-«18, 44

2 H. Storing, The Compleat Anti-Federalist

RNIN Ee Ce EE Se eee 22

J. Story, Commentaries on the Constitution of the

United States (1987) .............................-.-......8, 22, 46, 47

Strauss, The Place of Agencies in Government:

Separation of Powers and the Fourth Branch,

84 Colum. L. Rev. 573 (1984) 6, 8

C. Thach, The Creation of the Presidency, 1705 j-

oh, an EASA, ee NO ae EE 6, 21

The Federalist (C. Rossiter ed. 1961) :

eee ol eS 8 od ain 2, 18, 23, 28

EER ay ten SA eae a ey es 2

eR RSE ERE tee ee A pl 21

= eee sas ee os en ett a 24, 46, 47

XII

Miscellaneous—Continued : Page

I 6

OEE Reason SOE URGE ae aR Sm 21, 46

ON SSR EES AEE PEEP ES A Sear omen eee 7

a 2, 8, 21

. ) ee tial ales RE OR NT TIN oe er 45

LR” ORE eae ere ae Neer Em 28, 46

Sears eer RUE ware

ML Se RE LEER SV ae ek 27-28, 46

NE LLL LEE Sane ee ne One ene ROR AA 46

L. White, The Federalists: A Study in Adminis-

trative Fliatory (1948) ............cccccccccccccsosccecees-s2- 39

1 J. Wilson, Works, Lectures on Law (1791) ....... R

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING APPELLEES

INTEREST OF THE UNITED STATES

This case presents the question of the constitution-

ality of the independent counsel provisions of the Ethics

in Government Act of 1978, 28 U.S.C. (& Supp. III)

49, 591-598. Those provisions require the Attorney Gen-

eral to seek, and direct a special division of an Article

III court to appoint, an independent counsel to conduct

certain criminal investigation and prosecutions, free of

presidential superinteiudence. The interest of the United

States in this case is in preserving an important part of

the power and duty of the President to “take Care that

the Laws be faithfully executed.”

INTRODUCTION AND SUMMARY OF ARGUMENT

The Constitution does not give the national government

undifferentiated power, to be used by whatever officials

and to whatever end might seem necessary and proper.

Rather, it creates a government of limited and delegated

powers, which are divided into “ ‘three defined categories,

Legislative, Executive, and Judicial’” (Bowsher v. Synar,

No. 85-1377 (July 7, 1986), slip op. 6, quoting NS v.

Chadha, 462 U.S. 919, 951 (1983)) and which are as-

signed separately to three distinct Branches of govern-

ment: “[{a]ll legislative Powers” to the Congress ( Art. I,

$1), “[t]he executive Power” to the President ( Art. II,

$1), and “[t]he judicial Power” to the Supreme Court

and “such inferior Courts” as Congress may establish

(Art. III, $1). The Constitution specifically charges the

President to “take Care that the Laws be faithfully ex-

ecuted” (Art. II, §3). The independent counsel statute

creates an office that lies outside this constitutional

scheme. '

1Contrary to appellant’s argument (Br. 24-29), this Court is

not foreclosed from reaching the question of the constitutionality

(1)

The tripartite structure is at “the heart of the Consti-

tution.” Buckley v. Valeo, 424 U.S. 1, 119 (1976). See,

e.g., The Federalist No. 47, at 301 (Madison) (C. Ros-

siter ed. 1961); Jd. No. 48, at 308 (Madison); Jd. No.

72, at 435 (Hamilton). “The Framers recognized that,

in the long term, structural protections against abuse

of puwer were critical to preserving liberty.” Synar,

slip op. 14. They therefore made clear that the three

Branches were to “be largely separate from one an-

other” (Buckley, 424 U.S. at 120). Their objective, how-

ever, was not only “to. ‘diffus/e| power the better to

secure liberty’” (Snyar, slip op. 6 (citation omitted) ),

but also to focus responsibility and accountability for the

exercise of the powers of government. For that reason,

the Constitution vests all executive power in “a single

Person” (2 M. Farrand, The Records of the Federal

Convention of 1787, at 171 (1937) (draft of Committee

on Detail) (Farrand)) chosen by the people (Art. II,

$1, Cls. 2-3; Amend. XII), thus ensuring that a readily

identifiable official could be held to account for its exercise.

of the independent counsel statute. We share appellant’s concern,

reflected in Blair v. United States, 250 U.S. 273 (1919), that grand

jury proceedings generally not be subject to interruption by wit-

nesses’ legal challenges to subpoenas. In this case, however, ap-

pellant herself did not object to the interruption of grand jury

proceedings that occurred when appellees responded to subpoenas

by challenging her authority to proceed (J.S. App. 9a n.6). Because

appellees have been held in civil contempt for their refusal to com-

ply with the subpoenas, there is a case or controversy between

appellant and appellees, and the question whether to consider ap-

pellees’ challenge is a matter of prudence and sound judicial ad-

ministration. In light of appellant’s failure to object to resolution

of the constitutional questions by the district court, the unique and

fundamental character of appellees’ challenge to the prosecutor's

authority, and the purely legal nature of that challenge, it was

proper for the court of appeals to address the important constitu-

tional questions presented. Cf. Gardner v. Toilet Goods Ass'n, 387

U.S. 167 (1967); Abbott Labs. v. Gardner, 387 U.S. 136, 149

(1967); American Trucking Ass’ns, Inc. Vv. ICC, 747 F.2d 787

(D.C. Cir. 1984). It is likewise proper for this Court to do so.

The independent counsel] statute has the opposite pur-

pose and effect. It seeks to insulate from accountability

to any elected official what all agree is an important part

of the executive power—the power to investigate and

prosecute serious crimes allegedly committed by certain

high government officials and campaign officials. It vests

that power in an officer who in her appointment to office,

conduct while in office, and duration in office is not ac-

countable to the President or, through him, to the people.

Each appointment of an independent counsel thus creates

a separate and politically unaccountable mini-Executive

Branch, of limited but important jurisdiction, that is

essentially supreme in its sphere. The stated justification

for the statute is that personal or political loyalties may

prevent, or be perceived to prevent, the President and his

subordinates from properly discharging their duties under

the Constitution and laws. But the statute’s solution to

the important problem of misconduct by high officials is

contrary to the text and structure of the Constitution: it

diffuses and misplaces the responsibilities the Constitu-

tion assigns to the President, and the responsibilities it

assigns to the Congress and the Judicial Branch as well.

By taking purely executive power from the President

and giving it to an officer not accountable to the Presi-

dent, the statute contravenes Article II’s vesting of the

“executive Power” in the President, absolving the Presi-

dent of, and disabling him from carrying out, his duty to

“take Care that the Laws be faithfully executed,” includ-

ing the duty to see that wrongdoing by high officials is

investigated and prosecuted. By providing for judicial

appointment of the independent counsel, a purely execu-

tive and nonsubordinate officer, the statute contravenes the

Appointments Clause (Art. II, § 2, Cl. 2), absolving both

the President and the Senate of their responsibilities for

the selection of officers of the United States. By insulating

the independent counsel from removal except for miscon-

duct or incapacity, the statute contravenes established

principles recognizing the authority of the President to

remove officers who exercise purely executive power. By

creating a prosecutor independent of the President, the

statute also absolves Congress of its special constitutional

responsibility to scrutinize the actions of high govern-

ment officials, including the President. And by handing

off to the Judicial Branch the responsibility for appoint-

ing a prosecutor, defining her jurisdiction, and overseeing

her performance, the statute threatens to squander that

Branch’s invaluable resources of objectivity and detach-

ment from political processes.

The possibility of personal and political conflicts of

interest does not justify this sort of patchwork improve-

ment on the Constitution. Except for the President him-

self, any individual having a personal or political relation-

ship with persons who are the subjects of an investigation

or accusation is subject to personal disqualification under

existing laws and regulations, and Congress has ample

powers to take further steps to deal with such conflicts.

Congress may, for example, provide for the appointment

of a special prosecutor outside any existing department

but still accountable to the President. And Congress may

ensure a check on the President’s selection of such a prose-

cutor in the manner the Framers specifically prescribed :

by making the appointment subject to the advice and

consent of the Senate.

Conflicts of interest on the part of the President him-

self are another matter entirely: the responsibility for

investigating and prosecuting alleged offenses of high offi-

cials in the President’s Administration must remain with

the President himself, where the Constitution places it,

and Congress and the people should hold him accountable

for his fulfillment of that responsibility, as they plainly

have on important occasions in the past. The Constitu-

tion itself makes the President both politically accountable

for the conduct of the principal officers of the Executive

Branch and responsible for investigating, removing, and

prosecuting such officers for their offenses. The Constitu-

tion does not contemplate that the President may be “dis-

qualified” because of an impermissible “conflict” between

his political interest and his responsibility as Chief Ex-

ecutive. Any such “conflict” is intrinsic to the vesting

of all executive power in an elected President.

The problem of suspected wrongdoing at the highest

levels of the Executive Branch reveals no gap in the con-

stitutional scheme. The tools supplied by the Constitution

to deal with this problem—e.g., dismissal by the President,

criminal prosecution by regular or special prosecutors

within the Executive Branch, congressional investigation,

and im»eachment and its threat—have been used with

success throughout our history. And if elected officials

and their appointees fail to use these tools to root out

wrongdoing, the people have the ultimate capacity to dis-

cern and punish such derelictions. Ad hoe devices in-

tended to give important parts of law enforcement to the

politically unaccountable do not buttress the constitutional

structure; they dilapidate it. In this respect, the inde-

pendent counsel statute is another attempt—like those

encountered in Synar (use of Comptroller General as

budget control mechanism), Chadha (legislative veto),

and Buckley (congressional appointment of Federal Elec-

tion Commissioners)—to accomplish by extra-constitu-

tional mechanisms what those entrusted with the offices

and powers created by the Constitution are thought to

lack the will to do.

ARGUMENT

I. THE INDEPENDENT COUNSEL STATUTE

UNCONSTITUTIONALLY TAKES EXECUTIVE

POWER FROM THE PRESIDENT

A. Article II, Section 1, of the Constitution declares:

“The executive Power shall be vested in a President of the

United States of America.” Section 3 of the same Article

then charges the President with the corresponding duty:

“he shall take Care that the Laws be faithfully executed.”

The independent counsel statute violates the plain mean-

ing of those words by taking an important part of the

executive power, and of the concomitant duty to see to

the faithful execution of the laws, away from the Presi-

dent and assigning it to a person unaccountable to the

President in her selection and her performance and her

tenure. The statute vests executive power other than in

the President, in direct contravention of Article II, Sec-

tion 1’s “grant of power” (Myers v. United States, 272

U.S. 52, 151 (1926)), and relieves the President of his

duty and his ability to see to the faithful execution of the

laws, in direct contravention of Article II, Section 2.

It is not an accident that the whole of the executive

power is vested in the President: the purpose was to create

a unitary, vigorous, and independent Executive respon-

sible directly to the people. See J.S. App. 27a; C. Thach,

The Creation of the Presidency, 1775-1789, at 70-75, 119-

123, 140-160 (1969) ; id. at vii (introduction by Herbert

Storing) ; Strauss, The Place of Agencies in Government:

Separation of Powers and the Fourth Branch, 84 Colum.

L. Rev. 573, 599-605 (1984). The Framers repeatedly

expressed the importance of accountability to the people

for the exercise of executive power. See 1 Farrand 65-

67, 71-74, 96-97, 109, 254, 266-267; The Federalist No.

68, at 411-414 (Hamilton). They also explained the

importance of unity in the Executive as a structural

principle, which they adopted in reaction to experience

with divided executive responsibility under the Conti-

nental Congress and in the state governments,* and after

rejecting several proposals that would have diffused ex-

ecutive power." Placement of the executive power “in

2See Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41, 68-

69 (describing the disorganization that plagued the Continental

Congress’s efforts to direct the American Revolution); C. Thach,

supra, at 52-53 (“state experience * * * taught the falue of inte-

gration” in the Executive); id. at 31-34, 41-42 (describing state

experience with a divided executive) ; id. at 62 (Confederation ex-

perience prompted demands for “unitary departmental control and

integration” in execution of laws); id. at 57-68 (describing Con-

federation experience).

3 The Convention rejected Edmund Randolph’s proposal that the

Executive consist of three members drawn from separate regions

of the country. 1 Farrand 66, 71-74, 88, 91-92, 97. It also turned

down proposals for the President to have a Privy Council, consisting

either of the Chief Justice and the heads of executive departments

a single hand,” Hamilton explained, was an essential at-

tribute of the energy that was “a leading character in

the definition of good government” (Tv Federalist No.

70, at 423, 424). It was also necessary to ensure the

responsibility and democratic accountability for the pow-

ers vested in the elected President, since an absence of

unity would “deprive the people of the two greatest se-

curities they can have for the faithful exercise of any

delegated power”—‘“the restraints of public opinion” and

“the opportunity of discovering with facility and clear-

ness the misconduct of the persons they trust” (id. at

428-429). See also 1 Annals of Cong. 499 (J. Gales

ed. 1789) (Madison) (referring to the “great principle

of unity and responsibility in the Executive department,

which was intended for the security of liberty and the

publie good’).

Explaining the importance of focused responsibility,

Hamilton observed that the Executive’s “unity may be

destroyed * * * by vesting it ostensibly in one man, subject

in whole or in part to the control and cooperation of

others” (The Federalist No. 70, at 424). And James

Wilson, later a Justice of this Court, explained to the

Pennsylvania ratifying convention (2 J. Elliot, The De-

bates in the Several State Conventions on the Adoption

of the Federal Constitution 480 (2d ed. 1836) (Elliot’s

Debates) ):

The executive power is better to be trusted when it

has no screen. Sir, we have a responsibility in the

person of our President; he cannot act improperly,

and hide either his negligence or inattention; he can-

not roll upon any other person the weight of his

criminality; no appointment can take place without

his nomination; and he is responsible for every nom-

ination he makes.

(2 id. at 335-337) or of representatives of regions (id. at 533, 537,

542). The resolutions adopted to guide the Committee on Detail

and that Committee’s draft both expressly provided that the Ex-

ecutive was to consist of “a single Person” (id. at 132, 171).

Accord, 1 J. Wilson, Works, Lectures on Law 294-295

(1791); J. Story, Commentaries on the Constitution of

the United States 520 (1987) (Story) (plurality in the

Executive “diminishes the means, as well as the power,

of fixing responsibility for bad measures upon the real

authors’). |

The vesting of the executive power entirely in the

President does not, of course, mean that the President

must act personally in all matters, or that he alone

decides how executive power shall be delegated. “|T|he

President alone and unaided could not execute the laws”

(Myers, 272 U.S. at 117), and the Constitution leaves

Congress a wide discretion in structuring the govern-

ment and in assigning particular functions to particular

offices. But because the executive power, and the duty

to take care that the laws be faithfully executed, are

vested in the President alone, any officers who are to

exercise that power must be his “subordinates” and “act

for him under his direction” (ibid.).*. As Hamilton ex-

plained, executive officers “ought to be considered as the

assistants or deputies of the Chief Magistrate * * * and

ought to be subject to his superintendence” (The Feder-

alist No. 72, at 436). See In re Neagle, 1385 U.S. 1, 64

(1890); United States v. San Jacinto Tin Co., 125 U.S.

273, 279-280 (1888).°

4 The Senate cites (Br. 21 & n.29) an 1823 opinion of the Attorney

General in which he explained that the Constitution does not im-

pose on the President the duty to execute the laws personally (1

Op. Att’y Gen. 624, 624-626). The same opinion also makes clear

that the Constitution “places the officers engaged in the execution

of the laws under [the President’s] general superintendence” and

that, if the President is not satisfied with their conduct, he may

take steps “to cause them to be displaced, prosecuted, or im-

peached” (id. at 625).

5 The fact that Congress may assign nondiscretionary duties to

particular executive officers, and that the President may not in-

struct those officers to countermand their statutory orders (see

Kendall v. United States, 37 U.S. (12 Pet.) 524, 610-613 (1838)),

is of course fully consistent with the President’s duty to “take

Care * * *.” See Strauss, supra, 84 Colum. L. Rev. at 607 (footnote

To say that every officer who does exercise executive

power “ought to be subject to [the President’s] superin-

tendence”’ does not eliminate a!l congressional choice in

the assignment of functions among the Executive, Ju-

dicial, and Legislative Branches. There are some ac-

tivities of government—supervising the conduct of con-

gressional elections is one example—that do not fall

necessarily into only one of the three powers, and which

Congress probably could assign to more than one of the

three Branches.° And our argument in this case does

not require that the Fresident’s power of “superintend-

ence” entail, in every case, the power of appointment to

office and plenary power of direction while in office and

plenary power of removal from office, especially in the

case of officers whose functions are not purely executive.’

That issue is not in this case. What Congress may not

do is to establish an Executive Branch office to carry

out functions that are inescapably executive, but wholly

eliminate presidential superintendence, providing for the

office to be filled by a person who is not appointed by the

President or his subordinates, not subject to their direc-

omitted) (the duty in Kendall “left no scope for judgment” and the

decision accordingly “holds only that the President and other execu-

tive officials must act within the law”).

® As Justice Stevens said in his concurring opinion in Synar

(slip op. 14), “a particular function, like a chameleon, will often

take on the aspect of the office to which it is assigned.”

7 Thus, as we explain below (pp. 29-33) in discussing Humphrey's

Executor v. United States, 295 U.S. 602 (1935), whether the Presi-

dent must be able to remove at will the members, appointed by

him with Senate consent. of independent agencies that perform

“quasi-legislative” and “quasi-judicial” functions presents questions

quite distinct from those presented in this case.

Moreover, the President’s accountability for the exercise of dis-

cretionary executive power is of course not imperiled by the or-

dinary protections against removal from office enjoyed by federal

employees in the civil service, who are so situated in the hierarchy

of authority leading up to the President that their every exercise

of discretionary power is subject to control by a superior in that

hierarchy. See United States v. Perkins, 116 U.S. 483 (1886).

tion while in office, and not removable except for mis-

conduct or incapacity." As we now explain, that is pre-

cisely what Congress has done in the independent counsel

statute.

B. 1. As appellant concedes (Br. 52), “criminal pros-

ecution is indisputably an ‘executive’——as opposed to a

‘legislative’ or ‘judicial’—function.” This Court has so

ruled on numerous occasions. See, e.g., Heckler Vv.

Chaney, 470 U.S. 821, 832 (1985); Buckley, 424 U.S. at

138; United States v. Nixon, 418 U.S. 683, 693 (1974) ;

Springer Vv. Philippine Islands, 277 U.S. 189, 202 (1928) ;

Ponzi v. Fessenden, 258 U.S. 254, 262 (1922); Wilcox

v. Jackson, 38 U.S. (13 Pet.) 498, 515 (1839).° See

also S. Rep. 95-170, 95th Cong., Ist Sess. 5 (1977) (“The

responsibility for law enforcement is placed upon the

8 Buckley, 424 U.S. at 137-138, offers a close analogy. The

members of the Federal Election Commission as then constituted

were not appointed in accordance with the Appointments Clause.

The Court therefore considered which of the Commission’s powers

could be exercised by commissioners not so appointed. The Court’s

answer was that certain powers “falling in the same general

category as those powers which Congress might delegate to one of

its own committees” could be exercised by the Commission, but

other powers, notably the Commission’s “enforcement power, ex-

emplified by its discretionary power to seck judicial relief” (id. at

138), could not be so delegated, because “it is to the President,

and not to the Congress, that the Constitution entrusts the re-

sponsibility ‘to take Care that the Laws be faithfully executed’”

(ibid. (citation omitted) ).

®In Young v. United States ex rel. Vuitton et Fils S.A., No.

85-1329 (May 26, 1987), the Court ruled that a court may appoint

an attorney for the special purpose of assisting it in punishing

contempts. The Court viewed that power as an integral part of

the inherent Article III authority to ensure respect for the courts

(slip op. 7-12) and carefully distinguished the task of prosecuting

crime generally. The Court explained that merely because contempt

is a crime “does not mean that any prosecution of contempt must

now be considered an execution of the criminal law in which only

the executive branch may engage. * * * [T]hese proceedings are not

intended to punish conduct proscribed as harmful by the general

criminal laws. Rather, they are designed to serve the limited pur-

pose of vindicating the authority of the court.” Jd. at 11-12.

executive branch of the Federal Government.”)}. The

decision whether to bring a prosecution in a particular

case has long been recognized to lie within the disere-

tion of the Executive Branch and not to be subject to

judicial control. See Nixon, 418 U.S. at 693; United

States v. Thompson, 251 U.S. 407, 415 (1920) ; Confisea-

tion Cases, 74 U.S. (7 Wall.) 454, 457 (1869); United

States v. Cox, 342 F.2d 167 (5th Cir.) (en banc), cert.

denied, 381 U.S. 935 (1965); see also Ullman v. United

States, 350 U.S. 422 (1956) (immunity decisions); Ex

parte United States, 287 U.S. 241 (1932).

The decisions of an independent counsel require the

exercise of the sort of policy discretion that is the very

essence of the execution of the laws. Cf. Synar, slip op.

16-17. A prosecutor must decide not only the strength

of a particular case but also “the prosecution’s general

deterrence value, the Government’s enforcement priori-

ties, and the case’s relationship to the Government’s

overall enforcement plan.” Wayte v. United States, 470

U.S. 598, 607 (1985). A prosecutor must decide what

position to take on unresolved issues of law and how

such positions would affect other litigating positions. See

United States v. Mendoza, 464 U.S. 154, 160-161 (1984).

Decisions whether to bring charges against a particular

1 Judicial supervision of grand juries is wholly different. The

grand jury, expressly referred to in the Fifth Amendment, has

always been understood to be a distinctive institution, directly in-

volving the people rather than an ordinary governmental office

within one of the Branches; and limited judicial supervision ef

grand juries is considered an ancillary aspect of the Article III

judicial power. See United States v. Sells Eng’a, Inc., 463 U.S.

418, 423-424 (1983); Brown v. United States, 359 U.S. 41, 49 (1959).

Even in that setting, courts have recognized that such supervision

is constrained by separation-of-powers principles. United States v.

Gatto, 763 F.2d 1040, 1046 (9th Cir. 1985) ; United States v. Chanen,

549 F.2d 1306, 1312 (9th Cir.), cert. denied, 434 U.S. 825 (1977).

In any event, judicial supervision of grand juries involves no

judicial role in the exercise of policy discretion. Nor is any involve-

ment in prosecutors’ policy decisions called for by the judicial role,

expressly referred to in the Fourth Amendment, in making deter-

minations of probable cause upon applications for warrants.

person, what charges to bring, and what sentences to

recommend routinely involve value judgments about the

seriousness of particular offenses. A prosecutor may also

have to make policy decisions about whether a prosecu-

tion, or particular charges or information should be pur-

sued in light of the effect on matters such as national

security, foreign policy, or economic policy. These and

other discretionary policy judgments must be made at

all stages of a prosecution, from the initiation of an

investigation through the recommendation of a sentence.

See Common Cause (CC) Br. 8."

2. The independent counsel statute divests an impor-

tant part of this power and responsibility for criminal

law enforcement from the President and his subordi-

nates, and transfers it to a person who is selected and

appointed by a court and who is not accountable to the

President for the decisions she makes once in office. The

statute provides that an “appropriate” independent

counsel is to be selected and appointed by a Special Di-

vision of the District of Columbia Circuit. 28 U.S.C.

49, 593(a). The independent counsel is then vested with

“all investigative and prosecutorial functions and pow-

ers” of the Attorney General (except for certain wiretap-

approval authority), including the power to appoint staff

and to demand assistance from the Department of Jus-

tice. 28 U.S.C. 594/a), (ce), and (d). Once a matter

is in the hands of an independent counsel, the Depart-

"For example, as Professor Cox testified, President Theodore

Roosevelt decided not to prosecute United States Steel Corporation

for an antitrust violation because such an action might have im-

paired business confidence during the economic recovery following

the financial panic of 1907. Removing Politics from the Adminis-

tration of Justice: Hearings on S. 2803 and S. 2978 Before the

Subcomm. on Separation of Powers of the Senate Comm. on the

Judiciary, 93d Cong., 2d Sess. 202 (1974). The current Iran/Contra

investigation involves a host of foreign-relations and national-

intelligence issues and has already required investigation in and

contact with several foreign nations, including Israel. See also

United States v. Deaver, No. 87-096 (D.D.C. June 22, 1987) (sub-

poena of Canadian ambassador ) ; J.S. App. 57a-58a.

ment of Justice is directed to “suspend all investigations

and proceedings regarding such matter,” except insofar

as the independent counsel directs. 28 U.S.C. 597(a),

594(d).

In exercising her authority, the independent counsel is

supposed to be “truly independent” (S. Rep. 95-170,

supra, at 70). While she is directed to follow Depart-

ment of Justice policy generally, she is excused from

doing so “where not possible’ (28 U.S.C. 594/f)), and

no one may second-guess her discretionary decisions on

that secore.'* She may be removed, except by impeach-

ment, only for “good cause, physical disability, mental

incapacity, or any other condition that substantially im-

pairs the performance of such independent counsel’s du-

ties” (28 U.S.C. 596(a)(1)), a standard that Congress

intended to permit removal only for “misconduct” (H.R.

Conf. Rep. 100-452, 100th Cong., 1st Sess. 37 (1987) ).

All parties agree that those provisions were designed to

ensure independence from the entire Executive Branch,

including the President. See id. at 37(“{t]he ‘good cause’

removal standard is at the heart of the statutory mech-

anisms protecting the independent counsel’s ability to act

independently of the President’s direct control”) ; S. Rep.

95-170, supra, at 65-66 (“[tjhe entire purpose of ap-

pointing * * * [an independent counsel] is to get some-

one who is independent * * * from the President and the

Attorney General”); S. Rep. 97-496, 97th Cong., 2d

Sess. 2 (1982).

The statutory text and legislative history thus make

clear that the independent counsel is in no sense a sub-

' The Senate Committee indicated in 1982 that compliance with

Justice Department policies was only a “goal” (S. Rep. 97-496,

97th Cong., 2d Sess. 16) and that the independent counsel “should

he guided by his perception of fundamental fairness and of what

is required to conduct the investigation conscientiously” (ibid.).

The Committee further stated that the statute “should not be inter-

preted to mean that failure of the [independent counsel! to follow

Departmental policies would constitute grounds for removal * * *.

[This] would seriously compromise the [counsel’s] independence”

(ibid.). Contra, App’t Br. 58; Sen. Br. 25 n.34; CC Br. 9.

ordinate of or accountable to the President. It is the

court that determines which individual, with what ex-

perience, outlook, and judgment, would be an “appro-

priate” person to exercise the power of criminal prose-

cution. Once 2ppointed, the independent counsel is essen-

tially supreme in her sphere. And to whatever extent

she is not supreme, an independent counsel is in signifi-

cant respects subordinate and accountable more to the

Judicial Branch than to the President.

The independent counsel owes her selection and ap-

pointment to the Special Division in the first place. She

also owes her grant of jurisdiction to the Special Di-

vision: the Division is not bound by the Attorney Gen-

eral’s proposal for the scope of the independent counsel's

authority, but defines her jurisdiction itself. 28 U.S.C.

593(b); see S. Rep. 95-170, supra, at 64." In addition,

the Special Division has the authority to terminate an

appointment on its own motion on the ground that the

investigation is fully or substantially complete (28 U.S.C.

596 (b)(2)), a provision that is “intended to deal with

situations where [an independent counsel] is attempting

to prolong his office beyond the time it is really needed”

(H.R. Rep. 95-1307, 95th Cong., 2d Sess. 11 (1978)).

13 The Special Division exercised that authority in the case for

which amicus Walsh was appointed: after receiving a letter from

several Members of Congress, it defined his jurisdiction to include

more events and persons than those included in the Attorney Gen-

eral’s application. See Jn re North, No. 86-6 (D.C. Cir. Indep.

Counsel Spec. Div. (Order of Dec. 19, 1986) ); Jn re Sealed Case, 829

F.2d 50, 65 n.3 (D.C. Cir. 1987) (Williams, J., concurring in part

and dissenting in part), cert. denied, No. 87-869 (Jan. 19, 1988).

Under 28 U.S.C. 594(e), an independent counsel “may ask the

Attorney General or the division of the court to refer matters

related” to her original jurisdiction. The Special Division ruled in

In re Olson, 818 F.2d 34, 48 (1987), that the division could not

grant such a request after the Attorney Genera! had denied it.

Whether the independent counsel could bypass the Attorney Gen-

eral altogether was not discussed. In the 1987 reauthorization, Pub.

L. No. 100-191, 101 Stat. 1293, Congress made clear that such a

bypass is authorized. See H.R. Rep. 100-316, 100th Cong., Ist Sess.

28-29 (1987).

Also, before terminating her office, the independent coun-

sel must file a report with the Special Division setting

forth “fully and completely” the work of her office and

the reasons for any decision not to prosecute (28 U.S.C.

595(b)(2)). Finally, if an independent counsel is re-

moved from office by the Attorney General, she may

obtain review of the removal, and possibly reinstatement,

from a federal district court (§ 2, 101 Stat. 1305, to be

codified at 28 U.S.C. 596(a) (3)).

This close relationship to the Judicial Branch high-

lights the absence of accountability to the President.

Moreover, the degree of subservience to the Judicial

Branch hardly comports with the prohibition on even

modest inter-Branch encroachments that is established

by Synar, Buckley, and Myers. And to the extent that

the various functions assigned to the courts create, in

practice, a “superintending” relationship between them

and the independent counsels, that function is inconsist-

ent with the long-standing restriction of Article III courts

to the deciding of cases and controversies and various

ancillary functions. See pp. 23-24, infra; J.S. App. 74a-

87a; Chandler v. Judicial Council of the Tenth Cireuit,

398 U.S. 74, 85 (1970) (court may keep its “ovn house

in order”).

3. Appellant and her amici argue (e.9., App’t Br.

18-19, 48; Walsh Br. 12, 24) that the independent coun-

se] statute is nevertheless rendered valid by the fact that

no appointment can be made unless the Attorney General

requests one (28 U.S.C. 593(b)), apparently suggesting

some sort of waiver of Executive Branch rights. But

anart from the fact that Article II does not allow the

President to waive either his executive power or his

duty to take care that the laws are faithfully executed,"

4 Cf. Chadha, 462 U.S. at 942 n.13. The Constitution plainly

would not allow the President to give an Article III court the

power to appoint a special Secretary of State who would thereafter

independently conduct one section of the Nation's foreign affairs;

neither does it allow the Attorney General to give irretrievably

away the President's responsibility for the discretionary law en-

there is no voluntary waiver under the relevant pro-

vision of the Ethics in Government Act. Contrary to the

suggestion of appellant (Br. 18-19) and some of her

amici (e.g., H.R. Spkr. Br. 14; ABA Br. 11), the At-

torney General's decision to request an appointment in

a case like this one, although not subject to judicial re-

view (Nathan y. Smith, 737 F.2d 1069 (D.C. Cir.

1984)), is mandated by statute. In specified circum-

stances, the Attorney General “shall conduct” a prelim-

inary investigation (28 U.S.C. (Supp. III) 591/(a)),

and he “shall apply” for an appointment if the standard

for doing so is met—if he finds “reasonable grounds

to believe that further investigation or prosecution is

warranted” or he cannot find the contrary after a speci-

fied time (28 U.S.C. 592(c)(1))."% These legal obliga-

tions could be viewed as discretionary only on the cynical

view that a duty that is not judicially enforceable is

no duty at all.

Il. THE INDEPENDENT COUNSEL STATUTE VIO-

LATES THE APPOINTMENTS CLAUSE

The Appointments Clause of the Constitution (Art.

II, §2, Cl. 2) is not a mere matter of “etiquette or

protocol” (Buckley, 424 U.S. at 125). It is an essential

aspect of the separation of powers that is “woven into

the |Constitution|]” (id. at 124). It enables the Presi-

dent “to take Care that the Laws be faithfully exe-

cuted” through the appointment, for which he is politi-

eally accountable, of the officers who help him execute the

laws."*

forcement decisions (regarding, e.g., charges, grants of immunity,

pleas) made by the independent counsel.

In addition, the Attorney General must base his decision on

limited information, because he is expressly forbidden to use com-

pulsory grand jury process or to issue subpoenas in conducting his

preliminary investigations. 28 U.S.C. 592(a)(2). Under the 1987

reauthorization, he is also barred from rejecting referral based on

the target’s state of mind. § 2, 101 Stat. 1295, to be codified at 28

U.S.C. 592(a) (2) (B).

16 Madison noted: “[{i]f there is a principle in our Constitution

* * * more sacred than another, it is that which separates the

As the court of appeals ruled, the independent counsel

statute contravenes the Appointments Clause in two

ways. First, an officer who ‘exercises prosecutorial power

in an important class of cases, and who is not subordi-

nate to any superior in the exercise of that power, can-

not be an “inferior” officer and hence must be appointed

by the President with the advice and consent of the

Senate. Second, even inferior officers who exercise execu-

tive power must be appointed by the President or by a

head of department appointed by him. These two points

are closely related aspects of a single larger point: the

duty of the President to “take Care” means that he, with

the help of the Senate in certain cases and acting on his

own or through his heads of departments in others, is

responsible and accountable to the people for selecting

those persons who will exercise significant authority in

executing the law. The Appointments Clause was meant

to implement that presidential responsibility, not to frag-

ment it.

A. The Appointments Clause Does Not Permit Con-

gress to Vest the Appointment of Executive Officers

in the Courts of Law

The Appointments Clause, which deals with appoint-

ments of both Executive and Judicial Branch officers,

says that Congress may vest the appointment of inferior

officers “in the President alone, in the Courts of Law,

or in the Heads of Departments.” But only a reading

blind to the constitutional context would allow Congress

to vest the appointment of any inferior officer in any of

those authorities. As this Court said in Myers, 272 U.S.

at 117, and repeated in Buckley, 424 U.S. at 135:

“(T)}he President alone and unaided could not exe

cute the laws. He must execute them by the assist-

Legislative, Executive, and Judicial powers. If there is any point

in which the separation of the Legislative and Executive powers

ought to be maintained with great caution, it is that which relates

to officers and offices.” 1 Annals of Cong. 581.

ance of subordinates. * * * As he is charged spe-

cifically to take care that they be faithfully executed,

the reasonable implication, even in the absence of

express words, was that as part of his executive

power he should select those who were to act for him

under his direction in the execution of the laws.”

The essential role of appointments in the President’s

fulfillment of his constitutional duties thus compels the

obvious alternative reading of the Appointments Clause—

that Congress could empower the President or heads of

executive departments to appoint inferior executive offi-

cers, while the courts of law could be authorized to ap-

point inferior judicial officers. That reading is also com-

pelled by the history of the Clause."

1. The reference to “Courts of Law” in the Appoint-

ments Clause is what permits Congress to authorize the

courts to appoint their own inferior officers, as they have

been authorized to do with the clerks of court since

1789. See Judiciary Act of 1789, ch. 20, § 7, 1 Stat. 76;

Ex parte Hennen, 38 U.S. (13 Pet.) 230, 257-258(1839) ;

28 U.S.C. 67l(a), Tll‘a), 751/a); see also 28 U.S.C.

63l/a) (court appointment of magistrates). To read

the reference as also allowing judicial appointment of

executive officers would run counter to the structure of

the Constitution as a whole and of the Clause in par-

ticular. The separation of powers is so fundamental

to the constitutional plan ‘see The Federalist No. 47

‘Madison!) that the Appointments Clause should not be

construe! to permit one Branch to play a formal role in

the selection or removal of the officers of another Branch

that the Constitution does not explicitly authorize. See

17 Judge J. Skeily Wright rejected the contrary reading of the

Appointments Clause in his dissent in Hobson Vv. Hansen, 265 F.

Supp. 902, 921 (D.D.C. 1967): “Its language very naturally ad-

mits the common-sense reading that courts of law and the other

listed offices were meant to appoint only those officers ‘inferior’

to them * * *. And the narrower reading harmonizes with the

most apparent purpose of Article II: to let Congress clothe Secre-

taries and courts with the necessary authority for filling vacancies

in their own staffs.”

Synar, slip op. 6-8; 1 Annals of Cong. 462 (Mad-

ison’s argument for not extending the Senate’s advice-

and-consent role to removals); Myers, 272 U.S. at 122-

123; cf. Buckley, 424 U.S. at 127; Chadha, 462 U.S. at

955-956. Moreover, the Clause itself is written to estab-

lish presidential appointment, with Senate consent, as the

general rule—applicable to appointment of not only the

Justices of this Court and “Ambassadors, other public

Ministers and Consuls” but also “all other Officers of the

United States, whose Appointments are not herein other-

wise provided for” (Art. II, §2, Cl. 2). This general

rule emphatically affirms the principle of presidential re-

sponsibility for the appointment of every officer of the

Executive Branch other than the President himself and

the Vice President. The inferior officer portion of the

Appointments Clause, as a subsidiary clause addressing

matters of detail, should not be read to impair that fun-

damental principle.

2. The history of the Appointments Clause belies the

notion that the inferior officer portion was intended to do

anythizg so extraord’»ary as allow for judicial appoint-

ment of executive officers. That portion of the Clause

was added at the end of the Constitutional Convention

and with little discussion. After much debate about the

mode of appointments generally, the Committee on Style

reported on September 12, 1787, what is now the first

portion of the Clause (2 Farrand 599), which provides

for presidential appointment and Senate confirmation of

all officers and which, of course, would not allow courts

to appoint executive officers. On September 15, 1787,

the final working day of the Convention, the inferior offi-

cer provision was added (id. at 627-628) as one of a

number of rapidly considered changes in the document

(id. at 621-633).

The origins of this last-minute addition suggest a mod-

est objective. Earlier, George Mason had complained that

requiring Senate confirmation of all appointments, even

of the “smallest” offices, would be “unwieldy [and] ex-

pensive” (2 Farrand 537). Rufus King had responded

that he “did not suppose it was meant that all the minute

officers were to be appointed by the Senate, or any other

original source, but by the higher officers of the depart-

ments to which they belong” (id. at 539 (emphasis

added) }. On September 15, Gouverneur Morris made the

proposal to add the inferior officer clause, without ex-

planation but presumably in order to resolve any un-

certainty on this point (id. at 627). Like King before

him, Madison suggested the addition might be unneces-

sary: “It does not go far enough if it be necessary at

all—Superior Officers below Heads of Departments ought

in some cases to have the appointment of the lesser offi-

ces” (ibid.). Morris responded that “[t]here is no ne-

cessity” for going even further, because “Blank Com-

missions can be sent” (presumably by the President or

department head) (ibid.). After the proposal was ini-

tially rejected by an equally divided Convention (id. at

627-628), “i]t was urged that it be put a second time,

some such provision being too necessary, to be omitted”;

the proposal was then adopted (ibid.). Nothing in this

history suggests any intent except to relieve the Senate

and even the President of the burden of appointing lesser

officers; certainly this history does not remotely suggest

an intent to permit the Judicial Branch to appoint Ex-

ecutive Branch officers, in derogation of the responsibility

of both of the political Branches.

The discussion of the history of the Clause by amicus

Senate (Br. 32-37) confirms this conclusion. While, from

the beginning of the Convention, “[{t]he matter of the

appointment of officers of the new Federal Government

was repeatedly debated” (Buckley, 424 U.S. at 271

(White, J., concurring in part and dissenting in part) ),

the debate focused on who should appoint the Judiciary

and Ambassadors. The question of who should appoint

the members of the unelected Branch plainly presented

a special problem. And the debate over who should

appoint Ambassadors (‘and other foreign ministers) was

part of a larger debate over the Senate’s role in foreign

affairs; that debate was itself not resolved until the. end

of the Convention, when the Framers settled on appoint-

ment-confirmation and treaty-ratification roles for the

Senate (Art. II, § 2, Cl. 2), roles smaller than the more

prominent role in foreign affairs (making treaties and

appointing Ambassadors) the Convention had previ-

ously considered for the Senate.'* In all the discussion,

however, no one ever suggested that courts might be

allowed to appoint executive officers. Nor did the Con-

vention ever consider adopting any proposal that would

have vested the power to appoint executive officers (other

than foreign ministers) anywhere but in the Executive

Branch itself. Indeed, from Madison’s resolution of June

1 (1 Farrand 67), through Resolution 9 of the Com-

mittee on the Whole of June 13 (id. at 236), through

the draft of the Committee on Detail of August 6 (2

Farrand 185), and the report of the Committee on Style

of September 12 (id. at 599), the working documents

of the Convention expressly provided for executive ap-

pointment of all executive officers (excepting foreign

ministers) .

3. The early post-Convention historical evidence of

the Framers’ intent confirms that the Appointments

Clause was not meant to authorize judicial appointment

of executive officers. Madison, in The Federalist No. 51

(at 321), stated one basic principle: “each department

should have a will of its own; and consequently should

be so constituted that the members of each should have

as little agency as possible in the appointment of the

members of the others.”” Hamilton, in The Federalist No.

72 (at 435-436), stated the correlative principle: execu-

tive officers “ought to be considered as the assistants or

deputies of the Chief Magistrate, and on this account

they ought to derive their offices from his appointment.”

182 Farrand 183 (report of Committee on Detail); id. at 498;

see C. Thach, supra, at 114-115, 127-130, 134-138.

19In The Federalist No. 69 (at 421-422) and The Federalist No.

77 (at 460-462), Hamilton objected to the secrecy and absence of

personal responsibility where appointment is vested in a small

council. The provision for appointment of executive officers by the

The “Federal Framer” explained during the ratification

debates that “judges, and principal officers in the depart-

ments will be well informed men in their respective

branches of business; that they will, from experience,

be best informed as to fill inferior offices in them; that

they will feel themselves responsible for the execution of

their several branches of business, and for the conduct

of the officers they may appoint therein.” 2 H. Storing,

The Compleat Anti-Federalist 308 (1981). Justice

Story’s discussion of the Appointments Clause in his 1833

commentary on the Constitution likewise contains no

suggestion that he believed the Clause could be used

to support such appointments (Story 563-567).*. In

Ex parte Hennen, 38 U.S. (13 Pet.) at 257-258, this

Court explained: “The appointing power here designated,

in the latter part of the |Clause], was no doubt intended

to be exercised by the department of the government to

which the officer to be appointed most appropriately be-

longed.” None of these discussions of the inferior officer

clause, nor any other explanation that appellant and her

amici have unearthed from the period, states anyone’s

three-member Special Division of the District of Columbia Circuit,

after deliberations, raises the very concerns Hamilton identified.

Although multi-member “Courts of Law” commonly appoint their

own clerks and other officers, the appointing authority in that situ-

ation is the same as that to which the officer reports.

20 The contrary suggestion of amicus Common Cause (Br. 25)

is incorrect. Justice Story’s discussion of the “discretion” of Con-

gress states nothing more than what appears from the text of the

Appointments Clause: that Congress has discretion, for inferior

officers, to choose not to require presidential nomination with Sen-

ate confirmation but instead to rely on the second portion of the

Clause. Justice Story’s discussion does not state that Congress has

discretion to vest appointment of executive officers in the courts.

Indeed, in explaining the virtues of this discretion, Justice Story

stated: “In one age the appointment might be most proper in the

president; and in another age, in a department” (Story 566). He

omitted any reference to the third of the appointing authorities

mentioned in the inferior officer portion of the Clause, viz., the

courts.

belief that the Clause authorizes judicial appointment of

executive officers.

4. The Framers’ commitment to an independent ju-

diciary, expressed in the constitutional protection of

tenure during good behavior (Art. III, $1), further

demonstrates the anomalous nature of a reading of the

Appointments Clause that would permit judicial ap-

pointment of executive officers. Beginning in 1792, this

Court and its members have steadfastly rejected at-

tempts to assign to the courts “executive or administra-

tive duties of a nonjudicial nature” (Buckley, 424 U.S.

at 123). See, e.g., Muskrat v. United States, 219 US.

346 (1911); United States v. Ferreira, 54 U.S. (13

How.) 40 (1851); Hayburn’s Case, 2 U.S. (2 Dall.) 409

(1791).*" In this, the Court has accurately reflected tie

Framers’ vital concern that the judiciary remain inde-

pendent from the other Branches. See, e.g., 1 Farrand

98-99 (rejecting judicial participation in Council of Re-

vision) ; 2 id. at 298; The Federalist No. 47, at 302(Madi-

son) (quoting Montesquieu: “‘/t]here can be no lib-

erty’ * * * ‘if the power of judging be not separated

from the legislative and executive powers’”); The Fed-

eralist No. 78, at 466 (Hamilton) (same). The power

to select executive officers—particularly, those officers

who are authorized to investigate and prosecute politi-

cally sensitive crimes—not only intrudes upon the Presi-

dent’s responsibilities, but might also, as then-Professor

Frankfurter said of the courts giving advisory opin-

ions, “involve the judges too intimately in the process

of policy and thereby weaken confidence in the dis-

interestedness of their judicatory functions.” 1 Encyclo-

21 A different question is presented by the voluntary assumption

of certain duties by individual judges, as opposed to the courts

themselves, at the behest of Congress or the Executive. The

precedent for such practices includes Chief Justice Jay’s service

as Ambassador to England (while he served as Chief Justice)

and Justice Jackson’s service at the Nuremberg War Crimes Trials.

See In re President's Comm'n on Organized Crime (Subpoena of

Scarfo), 783 F.2d 370, 377-378 (3d Cir. 1986).

paedia of the Social Sciences 478 (1980). Judicial

power to appoint executive officers would thus stand in

stark contrast to the Framers’ vision of an independent

judiciary, and that power should nct be inferred in the

absence of any evidence that such power was intended.

B. An Officer Who Exercises Prosecutorial Power, and

Who is not Subordinate to Anyone in the Exercise

of That Power, is not an “Inferior” Officer

The Appointments Clause requires presidential ap-

pointment and Senate confirmation of all except “in-

ferior Officers.” That. requirement was intended to en-

sure accountability to the people—through both political

Branches—for the appointment of those officers of the

United States who are vested with primary responsi-

bility for exercising the executive and judicial powers

and thereby affecting the lives, liberty, and property of

the people. The independent counsel statute violates that

requirement because it vests complete and final author-

ity to exercise the governmental power that most dra-

matically affects people—the power to bring a criminal

prosecution—in a person who is not accountable to the

people through either political Branch. Compare The

Federalist No. 65, at 398 (Hamilton). The various in-

terpreta! ons of the term “inferior” advanced by appel-

lant and her amici fail to come to grips with this fun-

damental defect.

1. Appellant first proposes (Br. 31-32) that all offi-

cers except those expressly named in the first portion of

the Appointments Clause—Supreme Court Justices, am-

bassadors, and other public ministers and consuls—are

inferior officers, but that proposal encounters a sea of

troubles. First, it ascribes no sensible meaning at all to

the word “inferior”: for example, it makes the Secretary

of State, who is not named, “inferior” to the ambassa-

dors who report to him. Second, it would render de-

partment heads inferior officers, contrary to Congress’s

consistent practice and the First Congress’s specific view

of the matter (J.S. App. 12a n.8). Third, it would ap-

parently allow Congress to vest in a single department

head the authority to appoint ali of the other department

heads in the President’s Branch—and in a single court

all federal court judges except the Justices of this Court.

There is no indication in the history of the inferior offi-

cer portion of the Clause that this last-minute addition

was intended to displace the carefully worked-out provi-

sion for presidential nomination and Senate confirmation

of the principal officers of the government.

2. Amicus Walsh seeks to avoid those difficulties by

suggesting (Br. 10) that an inferior officer is any officer

not “ ‘specially mentioned’” (quoting United States v.

Germaine, 99 U.S. 508, 510 (1879)) in the Clause as a

whole, i.e., all officers except Justices and ambassadors,

ete., to which Amicus Walsh adds (ibid. (footnote omit-

ted) ) “ ‘those officers in whom respectively the power of

appointment may be vested—the President, the courts

of law. and the heads of departments.’ Collins v. United

States, 14 Ct. Cl. 568, 574 (1879).” This view seeks to

establish a different “bright line’ (Walsh Br. 12) that

avoids the grosser anomalies of appellant’s initial pro-

nosal. But the Walsh proposal uses the text merely for

convenience—and imprecisely at that—while ignoring its

purpose.

Nothing in the Clause or the history of its drafting

suggests that the expression “inferior Officers” was sup-

posed to mean precisely all those not named in either

the first or second portion of the Clause. The purpose

of the second portion of the Clause was to designate

permissible appointing authorities for certain subsidiary

officers, not to list “specially mentioned” officers requir-

ing presidential nomination and Senate confirmation. In-

deed, amicus Walsh’s ingenious proposal could work only

by ignoring the difference between “Courts of Law,”

which are authorized to be given appointing authority,

and federal judges, who (except for the Justices of this

Court) are not specially mentioned in the Appointments

Clause at all. For this reason, contrary to the state-

ments of amicus Walsh and the Collins court (Br. 10),

individual federal judges may not be granted authority

to appoint officers (though they may hire employees}.

Conversely, federal judges themselves are principal offi-

cers who must be appointed by the President with Sen-

ate confirmation; but the reason is not that they are

specially mentioned, which ‘except for Justices of this

Court) is not the case, but that they have tenure protec-

tion and are not subordinate or accountable to anyone

in the performance of their duties, although the decisions

of the courts on which they sit are reviewable. Hennen,

98 U.S. (13 Pet.) at 258; Northern Pipeline Constr. Co.

v. Marathon Pipe Line Co., 458 U.S. 50, 59 n.10 (1982)

(plurality). Appellant likewise has tenure protection

and is not subordinate.

3. Appellant offers (Br. 33-35) yet another reading

of the term “inferior Officers,” which would include those

of lesser “rank,” “status,” or “importance”—to be deter-

mined by examinirg their compensation, the scope of

their duties, and their tenure, but not their place in the

decision-making hierarchy. As amicus Walsh points out

(Br. 12 (citation omitted)), this proposed test is

“fuzzy,” “amorphous,” and “vague” and employs “ ‘cri-

teria of decision that necessar|illy escap{e] the judicial

grasp.” Also, if an officer wields final governmental au-

thority and is essentially supreme in her sphere, it is at

the very least awkward to say that that officer is “in-

ferior” just because her job is of limited scope and dura-

tion (perhaps even limited to a single case). Certainly

as far as the people affected by the exercise of her power

are concerned, she is not inferior in any meaningful

sense. Moreover, appellant’s test would, for appointment

purposes, allow Congress to shatter the Executive Branch

into a thousand small offices, each of limited scope (and

perhaps short term and relatively low pay), and provide

that each would be filled without presidential nomination

and Senate consent. This is not the way the Framers in-

tended the Executive Branch to be formed.

4. The root difficulty with all these proposals is that

their objective is to make it possible for an officer to be

“inferior” without being subordinate to any “superior”

in the exercise of her powers. Though subordinacy is not

a sufficient condition to establish that one is an “inferior

officer,” it surely is a necessary condition. A person who

exercises sufficient governmental authority to be an “offi-

cer” (see Buckley, 424 'J.S. at 126-127) and who is su-

preme in her sphere cannot in fairness or ordinary usage

be described as an “inferior officer.” *

That subordinacy is a necessary condition for inferi-

ority within the meaning of the Appointments Clause is

indicated by this Court’s repeated references to subordi-

nacy in speaking of “inferior Officers.” See Nixon, 418

U.S. at 694: United States v. Eaton, 169 U.S. 331, 343

(1898): Germaine, 99 US. at 511; United States v.

Hartwell, 73 U.S. (6 Wall.) 385, 392-395 (1868); see

also Collins v. United States, 14 Ct. Cl. 568, 574 (1879).

It is also confirmed by the Constitution's authorization

to create “inferior Courts” (Art. III, $1), which was

almost certainly understood to contemplate a closely re-

lated sort of subordinacy—i.e., that their decisions would

be subject to review by this Court (with “Exceptions”.

Hamilton. in The Federalist No. 81, twice described the

“inferior Courts” as “subordinate” to the Supreme Court

22 In United States v. Eaton, 169 U.S. 231 (1898), the Secretary

of State’s temporary appointment of a vice-consul as C onsul was

upheld under the inferior officer portion of the Appointments

Clause (even though “Consuls” are listed in the first portion of the

Clause). The vice-consul was a subordinate officer. Eaton further

suggests, by its reference to the temporary and emergency nature

of the appointment, that subordinacy is only a necessary, and not

always a sufficient, condition of status as an inferior officer. See

also 2 Farrand 627 (Madison's reference to “Superior Officers below

leads of Departments”). Similarly, a department head would be

structurally subordinate to the President, but he likely would be

deemed to have the status and responsibilities of a principal officer.

not only for historical reasons but also because he ( rather than the

President personally) is vested with final statutory authority over

all matters within his department. Cf. Classification Act of 1923,

ch. 265, $2, 42 Stat. 1488 (“‘the head of the department’ means

the officer or group of officers in the department who are not sub-

ordinate or responsible to any other officer of the department” ).

(id. at 485 n.*, 490). There is no reason to think the

Framers used a different concept in the Appointments

Clause from what they used in Article III.”

Taken together, appellant’s contentions that an officer

exercising discretionary executive power can be inferior

without being subordinate, and can be appointed by a

court of law, would rend the constitutional design. The

Framers deliberately provided for presidential nomina-

tion with the safeguard of Senate confirmation as the

general rule because they believed that method of ap-

pointment would help ensure responsible and politically

accountable selection of those officers with primary au-

thority in the administration of the laws. See The Fed-

eralist No. 76, at 457 (Hamilton). It would seriously

undermine this judgment to permit Congress to avoid

this mechanism by providing, as Congress has done in

the independent counsel statute, for judicial appointment

of an officer who, once appointed, would not be subordi-

nate to any other executive officer, including the Presi-

dent, and hence would have the sort of final decision-

making authority that renders presidential nomination

and Senate confirmation most important.** An independ-

ent counsel has a truly separate fiefdom that is autono-

mous in its congressionally assigned sphere and that dis-

23 Dr. Samuel Johnson, in his Dictionary of the English Lan-

guage (7th ed. 1785), defined “inferiour” to mean (1) “lllower

in place,” (2) “[{ljower in station or rank of life: correlative to

superiour,” (3) “[{ljower in value or excellency,” and (4) “Ts)u-

bordinate.” Contrary to the suggestion of appellant (Br. 35) and

her amici (e.¢., CC Br. 25; Walsh Br. 13-14 n.14), we fail to see

how that definition in any way undermines the hierarchical reading

of the word “inferior” in the context of a constitutional provision

concerned with governmental structure.

24 That the Appointments Clause singles out Justices and various

foreign ministers reflects this concern. Justices, once appointed,

serve during good behavior, and foreign ministers, in the Eight-

eenth Century, had to carry out much of their work without means

of quick contact with the government at home. Responsible ap-

pointment is in both cases especially important.

places the Branch headed by the President. She is in no

sense “inferior” even to the President.

Ill. THE LIMITATIONS ON THE REMOVAL OF THE

INDEPENDENT COUNSEL ARE INCONSISTENT

WITH THIS COURT’S DECISIONS IN MYERS,

HUMPHREY’S EXECUTOR, AND WIENER

Even if the independent counsel were properly ap-

pointed, it would not be permissible to limit so severely

the President’s power to remove her, denying that power

altogether except for misconduct or incapacity. The

duties of an independent counsel are purely executive in

nature, and they therefore can be performed only by an

officer who is accountable to the President. Whatever

limits Congress may constitutionally impose on the Presi-

dent’s various means of holding other officers to account,

it may not deny his power to remove purely executive

officers like an independent counsel.

A. This Court said in Myers that the Constitution

confers on the President the unrestricted power to re-

move officers who were appointed by him with the advice

and consent of the Senate and who carry out his respon-

sibility for the faithful execution of the laws. The Court

regarded this power of removal as an element of the

“executive Power” that is essential to the President’s

fulfillment of his obligation to take care that the laws be

faithfully executed. 272 U.S. at 162-164, 177.

In Humphrey's Executor v. United States, 295 US.

602 (1935), the Court, while not questioning the result

in Myers, held that the Constitution does not bar Con-

gress from imposing limitations on the President’s ability

to remove a member of a commission (the Federal Trade

Commission) that was charged by Congress with the

exercise of certain “quasi-judicial” and “quasi-legislative”

functions (295 U.S. at 628-629). After it “carefully

** The FTC’s functions that the Court described as “quasi-legis-

lative” or “quasi-judicial” were quite limited. In particular, they

did not include rulemaking power, as the FTC did not claim such

authority until 1962. See National Petroleum Refiners Ass'n V.

emphasized” (Buckley, 424 U.S. at 133, citing 295 U.S.

at 625-626) that the Commissioner was appointed by the

President with Senate consent, the Court reasoned that

Congress has the authority to create such bodies and to

require them to act independently of executive control in

the discharge of their duties, and that this authority

“includes, as an appropriate incident, power to fix the

period during which they shall continue in office, and to

forbid their removal except for cause in the meantime”

(id. at 629). The Court stressed its view that the FTC

was “wholly disconnected [with] the executive depart-

ment” ‘id. at 630) and “exercise[d] no part of the exec-

utive power vested by the Constitution in the Presid-nt”

(id. at 628).% The Court expressly did not disturb the

decision in Myers insofar as it sustained the President’s

“illimitable power” (id. at 627- 629) to remove “purely

FTC, 482 F.2d 672, 693 (D.C. Cir. 1973), cert. denied, 415 U.S.

951 (1974); Synar v. United States, 626 F. Supp. 1374, 1397 n.24

(D.D.C. 1986) (three-judge court), aff'd, Bowsher v. Synar, supra.

The FTC’s functions at the time included the conduct of investiga-

tions on behalf of Congress (see 295 U.S. at 621, 628), individual

adjudications (see id. at 620-621, 624, 628, 629), and the ~er-

formance of duties as a master in chancery (see id. at 621, 628,

630). See 15 U.S.C. (1940 ed.) 45, 46, 47.

26 Amicus Walsh suggests (Br. 25) that the FTC Commissioners

did exercise executive power, but that suggestion rests on a mis-

leading description of the powers of the FTC Commissioners at

the time of Humphrey's Executor. Aside from “investigating anti-

trust violations,” which obviously may be a legislative function,

the Commissioners, amicus Walsh states, were charged with “fil-

ing complaints stating the charges, and going to court to enforce

cease-and-desist orders.” To the extent that that language ix meant

to suggest that the FTC could initiate actions in court, the sug-

gestion is false. The FTC could file only administrative complaints,

in order to initiate its own internal proceedings (15 U.S.C. (1940

ed.) 45 (b)); and it could “go[| to court to enforce cease-and-

desist orders” only by being named as a defendant in a judicial

challenge brought by a party subject to such an order (15 U.S.C.

(1940 ed.) 45(c)). The FTC statute provided for initiation of a

court action to enforce an order of the Commission only by “the

Attorney General of the United States, at the request of the com-

mission” (15 U.S.C. (1940 ed.) 50).

executive” officers (id. at 631, 632), such as the post-

master in Myers, who was “an executive officer restricted

to the performance of executive functions” (id. at 627).

The Court reached a similar result in Wiener Vv.

United States, 357 U.S. 349 (1958), which also involved

officers appointed by the President with Senate consent.

Noting that Humphrey’s Executor had disapproved the

broad dicta in Myers concerning the constitutional power

of the President to remove members of “quasi-judicial”

bodies (357 U.S. at 352), the Court held that Congress

likewise could limit the power of the President to remove

members of the War Claims Commission, in view of the

“intrinsic judicial character” of the Commission’s duties

(id. at 355). As in Humphrey’s Executor, the Court

expressly did not disturb the decision in Myers as regards

the President’s “illimitable” power to remove “ ‘all purely

executive officers’” (id. at 352 (quoting 295 US. at

626-627) ).

B. The independent counsel’s responsibilities are

wholly different from those at issue in Humphrey's

Executor and Wiener. The independent counsel does not

exercise “quasi-legislative” or “quasi-judicial” power or

have duties of an “intrinsic judicial character.” In the

Constitution’s language, her sole job is to “execute” the

criminal law, a duty the Constitution vests in the Presi-

dent, and no one, therefore, can be more a “purely exec-

utive” officer than she. This conclusion is reinforced by

the character of the functions and offices that the inde-

pendent counsel supplants. Cf. Chadha, 462 U.S. at 952-

953. The independent counsel is vested with full author-

ity, in connection with the alleged crimes under her ju-

risdiction, “to exercise all investigative and prosecutorial

functions and powers of the Department of Justice, the

Attorney General, and any other officer or employee of

the Department of Justice” (28 U.S.C. 594(a)). The

Attorney General, as the chief federal prosecutor and the

head of an executive department, must serve only at the

pleasure of the President. Within her jurisdiction, an

independent counsel is the chief federal prosecutor and

the head of the Attorney General's Department. Ac-

cordingly, she too must serve at the pleasure of the Pres-

ident (or of someone, such as the Attorney General, who

so serves). See Chabal v. Reagan, No. 87-5751 (3d Cir.

Mar. 14, 1988), slip op. 5-7, 8-10 (United States Mar-

shals are “purely executive officers” who may be re-

moved by the President at will); Morgan v. TVA, 115

F.2d 990 (6th Cir. 1940), cert. denied, 312 U.S. 701

(1941) (head of TVA removable at will).

We emphasize that the removability of members of

“independent agencies” presents a quite different ques-

tion. First, those officers are appointed by the Presi-

dent with Senate consent, so the question in those cases

is not one of total elimination of accountability to the

President. Second, Congress has specifically withheld

from those agencies the purely executive power of crimi-

nal law enforcement.” Thir?. those agencies, unlike inde-

pendent counsels, frequently carry out specifie adjudi-

catory, information-gathering, and other functions that

may not be uniquely assignable to the Executive Branch.

Fourth, the statutory provisions that insulate members

of independen: agencies from removal at will by the

President vary considerably and might be interpreted to

include disobedience to a presidential directive on a mat-

ter within the President’s authority as a ground for

removal and thus to impose barriers significantly lower

than “misconduct” (see p. 13, supra).* The Court need

27 See, ¢.g., 15 U.S.C. 56(b) (FTC must refer criminal matters

to Attorney General): 15 U.S.C. T7t(b) (same for SEC); 15

U.S.C. 2076(b) (7) (B) (same for CPSC); 47 U.S.C. 401(c) (same

for FCC); 49 U.S.C. (& Supp. Il) 11703 (same for ICC). See

also 28 U.S.C. 547 ‘criminal prosecution reserved to U.S. Attor-

nevs, under the direction of the Attorney General, “except as other-

wise provided by law”); 2 U.S.C. 437d(a)(6) (FEC given only

civil enforcement power); 7 U.S.C. (& Supp. IV) 4ate), 13a-1

(same for CFTC); 42 U.S.C. 7171(i) (same for FERC).

28 See, e.g., 15 U.S.C. 2053(a) (CPSC: removable for “neglect

of duty or malfeasance in office but for no other cause”); 47 U.S.C.

154(c) (FCC: no specified standard for removal); 12 USC. (&

not address the significance of those distinctions here:

the constitutionality of independent agency removal ar-

rangements is neither at issue nor at stake in this case.

IV. NEITHER THIS COURT’S DECISIONS NOR PRIOR

FEDERAL PRACTICES PROVIDE PRECEDENT

FOR VESTING PURELY EXECUTIVE POWER IN

AN OFFICER WHO IS APPOINTED BY A COURT

AND IS NOT ACCOUNTABLE TO THE PRESIDENT

Appellant and her amici seek support for the independ-

ent counsel statute in certain judicial decisions, partic-

ularly Ex parte Siebold, 100 U.S. 371 (1880). But

neither Siebold nor any other decision of this Court holds

that a court may appoint an executive officer, much less

one who is not accountable to the President. Nor have

appellant and amici identified any other instance in

which Congress has even attempted to transfer purely

executive power, such as criminal law enforcement au-

thority, to such an officer.

A. Siebold arose under an Act of Congress that au-

thorized a federal court to appoint election supervisors

to help preserve the integrity of congressional elections.

Several state officials were convicted of violating a pro-

hibition against interfering with the supervisors in the

performance of their official duties. The defendants’ prin-

cipal contention in this Court was that Congress’s power

to regulate the election of Representatives (Art. I, § 4)

did not permit it to displace state regulation only par-

tially—i.e., that Congress had to do so completely or not

at all. Most of the Court’s opinion (100 U.S. at 382-397)

is devoted to rejecting that contention.

The defendants also argued that Congress could not

constitutionally authorize judicial appointmert of ‘the

election supervisors. In a brief discussion (100 U.S. at

Supp. IV) 2, 1812 (FDIC: removable by President for “reasons

to be communicated by him to the Senate”); 12 U.S.C. 242 (Fed-

eral Reserve Board: removable for cause); 15 U.S.C. 41 (FTC:

removable for inefficiency, neglect of duty, or malfeasance in of-

fice); 15 U.S.C. 78d(a) (SEC: no specified standard for removal).

397-398), the Court rejected that contention as well. The

Court explained that it “is no doubt usual and proper to

vest the appointment of inferior officers in that depart-

ment of the government, executive or judicial, or in that

particular executive department to which the duties of

such offices appertain” (id. at 397). But the Court said

that there is “no absolute requirement to that effect”

in the Appointments Clause and that “it would be diffi-

cult in many cases to determine to which department an

office properly belonged” (ibid.). Accordingly, the Court

stated that “the selection of the appointing power, as

between the functionaries named, is a matter resting in

the discretion of Congress” (id. at 397-398), although it

also stated that the principle of Hennen—that the Ap-

pointments Clause was intended to allow appointment

by the Branch to which the official to be appointed

“‘most appropriately belonged’” (100 U.S. at 398 (cita-

tion omitted) )—‘‘express{ed] the law or rule by which

(Congress’s power to select the appointing authority]

should be governed” (ibid.). Without endorsing the de-

fendants’ characterization of the election supervisors’

duties as “entirely executive in character” (id. at 397),

the Court sustained their appointments: it concluded

that there was no “incongruity” in court appointment of

the supervisors and that neither the President nor the

head of a department would have been equally suited

to the task (ibid.).

Siebold does not answer the Appointments Clause chal-

lenge to the independent counsel statute (or even address

the basic Article II challenge). First, the decision has

no bearing on the question whether an independent coun-

sel can be an inferior officer, because the case involved

no question of whether tae election supervisors were

inferior officers.*” Second, on the question of judicial

29 Because election supervisors had no guaranteed tenure (Rev.

Stat. § 2012 (1873 ed.) ), they were removable at will by, and hence

were subordinate (and hence “inferior’) to, the courts that ap-

pointed them. See Hennen, 38 U.S. (13 Pet.) at 259. Election

supervisors also appear to have been subordinate to the chief super-

appointment of executive officers, the decision does not

stand for the proposition that a federal prosecutor, such

as an independent counsel, may be appointed by a court.

Siebold concerned borderline, hard-to-classify officers

whose functions were held not incongruous with judicial

appointment and were not uniquely within the province

of the Executive Branch. The only duty of the election

supervisors actually at issue in the case was quite lim-

ited: at the time the defendants interfered, the super-

visors were entering the voting room at the beginning of

the day to see if the ballot box was empty (100 U.S. at

378, 379). Even the duties of the supervisors that were

not at issue (e.g., checking voters against registration

lists, securing ballot boxes, and reporting irregularities

to the chief supervisor and Congress) were essentially

investigative in nature and were both minimally intru-

sive and closely related to the task of protecting against

election fraud. Since, as the Court explained, “it must be

remembered that we are dealing only with the subject of

election of representatives to Congress” (id. at 393),

those functions could have been performed directly by

Legislative Branch officers, pursuant to the power of

each House to judge its own elections (Art. I, $5, Cl.

1).% See Buckley, 424 U.S. at 137-138; Barry v. United

visors in their jurisdictions. Rev. Stat. § 2026 (1873 ed.); see H.R.

Rep. 218, 44th Cong., 2d Sess. 35-36, 42-45 (1877).

%° We see no reason why all of the supervisors’ functions de-

scribed by amici (Walsh Br. 15; Sen. Br. 38; see generally Rev.

Stat. §§ 2011-2029 (1873 ed.)), including the arrest of persons who

impeded their functions, could not be performed by Legislative

Branch officers, in the service of securing and judging congres-

sional elections. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204

(1821) (Congress’s Sergeants at Arms may arrest and imprison

persons for contempt of Congress). In any event, the marshal or

deputy marshals generally made the arrests, at the supervisors’ in-

stance (H.R. Rep. 218, swpra, at 34-36 (supervisors’ instruc-

tions)); the supervisors’ power to arrest, cited by amicus Walsh

(Br. 15), existed only “in the absence of the marshal’s deputies,

or if required to assist said deputies” (Act of Feb. 28, 1871, ch.

99, § 8, 16 Stat. 436; Rev. Stat. § 2022 (1873 ed.) )—circumstances

States ex rel. Cunningham, 279 U.S. 597, 616 (1929).

That Congress may, without incongruity, direct the

courts to appoint officers to assist in the performance of

a legislative function, especially one that is “judicial in

character” (id. at 613), does not suggest that Congress

may transfer from the Executive Branch to the courts

the power to appoint purely executive officers who carry

out the President’s duties.

The analysis in Buck'ey underscores the distinctior

between Siebold and this case. The Court in Buckley

applied the Appointments Clause by examining the func-

tions of the Federal Election Commission, and it con-

cluded that compliance with the Ciause was simply irrele-

vant to the validity of any functions that Congress could

have assigned to someone who was not appointed in

accordance with the Clause. Of particular relevance here,

the Court noted that Congress can engage in investiga-

tive and informational functions in aid of the legislative

process and may compel the presence of witnesses to that

end (424 U.S. at 138: McGrain v. Daugherty, 273

U.S. 135, 175 (1927)), and it held that FEC Com-

missioners, while they could not exercise “discretionary

powers to seek judicial relief,” could perform investiga-

tive and informational functions (id. at 137-138). The

election supervisors in Siebold, as we have explained, per-

formed essentially similar functions.

To the extent that Siebold’s references to the absence

of any “absolute” barriers and ‘o congressional “discre-

tion” suggest unconstrained discretion to vest the ap-

pointment of any inferior officer in any of the three

appointing authorities named in the second portion of the

Appointments Clause, the suggestion is incorrect (and

would allow, e.g., judicial appointment of military offi-

cers). But Siebold’s ambiguous words need not and

should not be read to mean that Congress is subject to no

limitations at all, and there are good reasons, even aside

in which even private citizens are generally permitted to make or

assist in an arrest (see Rev. Stat. § 2024 (1873 ed.); Model Penal

Code § 3.07 (1985)).

from the narrowness of the facts of the case and the

brevity of the Court’s analysis, for not treating such

dicta as disposing of the question of inter-Branch ap-

pointments. Notably, the government’s brief did not ad-

dress the appointment issue at all, and the portion of the

defendants’ brief devoted to that issue did not cite any

of the materials that shed light on the Framers’ intent

beyond the text of the Clruse itself (see Pet. Br. 85-86,

Ex parte Siebold, supra). Given the evidence of purpose

now before the Court and the intervening analysis in

Myers, Buckley, Chadha, and Synar, the ambiguous dicta

in Siebold do not support judicial appointment of an in-

dependent counsel.

B. The other materials cited by appellant and her

amici offer no greater support for the independent coun-

sel statute. Appellant relies (Br. 50) on “{elitizen in-

volvement in law enforcement.” But aside from the

obviously irrelevant examples of civil lawsuits brought

under federal statutes by private citizens on their own

behalf (id. at 50 & n.69), appellant cites only one even

conceivably pertinent federal statute, 31 U.S.C. 3730(b),

which authorizes a private party to bring a qui tam

action on behalf of the United States. That provision,

however, authorizes a private party to bring only a civil

action for a money judgment (31 U.S.C. 3730(b));

responsibility for criminal prosecutions is committed to

the Executive Branch (18 U.S.C. 287).* Furthermore,

3! There is no history in the federal system of qui tam criminal

prosecutions. See United States ex rel. Marcus vy. Hess, 317 US.

537, 548-549 (1943). United States v. Trobe, 28 F. Cas. 217

(D.C.W.D. Pa. 1865) (No. 16,541); United States v. Malebran,

26 F. Cas. 1145 (C.C.D.N.Y. 1820) (No. 15,711); Comment, Qui

Tam Actions: The Role of the Private Citizen in Law Enforcement,

20 UCLA L. Rev. 778 (1973). Cf. Linda R.S. v. Richard D., 410

U.S. 614, 619 (1973) (“in American jurisprudence at least, a pri-

vate citizen lacks a judicially cognizable interest in the prosecution

or nonprosecution of another”). Nor is it clear to what extent, if

any, even the quite different English, colonial, and state systems

have allowed criminal prosecutions to be fully controlled by private

persons. See Note, The History and Development of Qui Tam, 1972

Wash. L.Q. 81.

the statute expressly permits the Executive Branch to

take over any civil action at the outset (31 U.S.C. 3730

(b) (2); see also 31 U.S.C. 3730‘b) (4)). See also 25

U.S.C. 201. In any event, the possible involvement of

private parties in no way suggests that where law en-

forcement, particularly criminal prosecution, is under-

taken by the federal government itself, Congress may

ignore the separation of powers and assign that function

to an officer who is appointed by a court and unaccount-

able to the President.

Equally misplaced is appellant’s and amici’s reliance

(App’t Br. 40-41; CC Br. 13-14) on the independence of

the Attorney General in England, judicial appointment

of prosecutors in some States, and the widespread pat-

tern in the States of electing Attorneys General and

prosecutors. Such arrangements shed no light on the al-

location of appointing power or accountability to the

President under the federal Constitution, which differs

markedly from the constitutions of the various English,

colonial, and state governments. See Seymour Br. App.

la-2a, 4a. The Framers, of course, were well aware of

these different structural approaches, including the dif-

ferences in appointment power, and they deliberately de-

parted from those approaches. See The Federalist No.

47, at 300-308 ( Madison).

Consistent with the structure the Framers adopted,

ever since the enactment of the Judiciary Act of 1789

($35, 1 Stat. 92), United States Attorneys have been ap-

pointed by the President, with the advice and consent of

the Senate, and have been subject to direction and re-

moval by the President. In 1831, then-Attorney General

Taney explained that the President’s power to direct the

“district attorneys” “is necessarily implied by the duties

imposed upon him in that clause of the constitution be-

fore referred to, which enjoins him to take care that the

laws be faithfully executed.” The Jewels of the Princess

of Orange, 2 Op. Att’y Gen. 482, 487. To be sure, Con-

32 Given the President's right of control, it is irrelevant for con-

stitutional purposes whether district attorneys were afforded con-

gress has authorized district courts to fill a vacancy in

the office of United States Attorney on an interim basis

(28 U.S.C. 546, as amended by the Act of Nov. 10, 1986,

Pub. L. No. 99-646, § 69, 100 Stat. 3616). But although

that provision was upheld in United States v. Solomon,

216 F. Supp. 835 (S.D.N.Y. 1963), this Court has not

considered its validity; and even the Solomon court

stressed that the appointment was temporary, the ap-

pointee was fully subject to control by the President, and

the statute was not intended to displace the President’s

authority (id. at 842-843).

The fact that the Senate Committee’s first draft of the

Judiciary Act of 1789 proposed judicial appointment of

the Attorney General and “district attorneys” (see

App’t Br. 41-42; CC Br. 14; Walsh Br. 16 n.15) cannot

offer support for the independent counsel statute, as

Judge Ginsburg pointed out in her dissent below (see

J.S. App. 122a-123a n.41). That proposal did not even

survive in the final Senate bill, and it was not enacted

by Congress, which instead chose to provide for presi-

dential appointment and Senate confirmation. More-

over, even under the rejected proposal, there is no indi-

cation that the Attorney General and district attorneys

would have been insulated from presidential direction.

Nor does the independent counsel statute find any sup-

port in the provision in the Judiciary Act of 1789 for a

court to “appoint” a disinterested person to serve writs

in a suit in which the marshal or deputy marshal was

a party (§ 28, 1 Stat. 87; see Walsh Br. 16 n.15). It is

not clear that the person designated to serve the writ

was expected to become an officer of the United States,

siderable independence as « practical matter and whether they were

subject to the supervision of the Attorney General or of some

other Executive Branch officer (see App’t Br. 52-53) In fact.

there was some supervision from the beginning. See L. White.

The Federalists: A Study in Administrative History 406 (1948):

Act of May 26, 1824, ch. 162, 4 Stat. 44. It is likewise irrelevant

that the district attorneys, who were sworn in as officers. were

“private lawyers who worked on the basis of fees for services

rendered” (CC Br. 15 (footnote omitted) ).

and the service of process is hardly a function that can

be performed only by officers of the Executive Branch.

See Fed. R. Civ. P. 4(c); ef. Siebold, 100 U.S. at 397."

United States Commissioners, also mentioned by appellant

and amici (App’t Br. 34; Walsh Br. 16-17), were merely

the predecessors of United States Magistrates and hence

were clearly judicial, not executive officers.* Finally, the

83 Judicial appointment of District of Columbia school board

members (App’t Br. 34 n42, 40; H.R. Spkr. Br. 21 1.30) was

upheld in Hobson, 265 F. Supp. at 914-915. But Congress has

plenary legislative power over the District of Columbia (Art. I,

Appointments Clause. A similar plenary power over the territories

(Art. TV, $3, Cl. 2) was at issue in 6 Op. Att'y Gen. 80 (1855),

relied upon by amicus Common Cause ( Br. 15).

34 In United States v. Allred, 155 U.S. 591, 595 (1895), the Court

observed that Commissioners “have always been considered in

the same light as masters in chancery and registers in bankruptcy.

and subject to [judicial] supervision and control.” See also Ge-

Bart Importing Co. Vv. United States, 282 U.S. 344, 353 n.2 (1931)

(Commissioner is “a mere officer of the district court”). Among

the duties ascribed to such Commissioners (see Allred, 155 U.S. at

594-595: Rice v. Ames, 180 U.S. 371, 377-378 (1901); Go-Bart

Importing Co., 282 U.S. at 353 n.2), only the power to “institute

prosecutions,” emphasized by amicus Walsh (at 16) suggests a

prosecutorial power. But appellant and her amici have pointed to

no instance of its use, and the statute from which the phrase

comes, 8 U.S.C. (1934 ed.) 49; Rev. Stat. § 1982 (1873 ed.), is

not fairly read to give Commissioners such power. The provision

says that “district attorneys, marshals, and deputy marshals, the

commissioners * * * with power to arrest, imprison, or bail offend-

ers, and [other officers} * * * are authorized and required * * * to

institute prosecutions against [specified persons} * * * and to

cause such persons to be arrested, and imprisoned or bailed, for

trial.” Almost certainly, each person named in the first portion

was to perform the obviously corresponding duty in the second

portion—so that deputy marshals were not suddenly to have power

to grant bail, and Commissioners were to perform only their usual

duties of issuing arrest warrants and ordering imprisonment or

bail. The succeeding section supports this reading. & U.S.C. (1954

ed.) 50: Rev. Stat. § 1983 (1873 ed.) (Commissioners are to exer-

’ cise powers “conferred on them herein” “in like manner as they

are authorized by law to exercise with regard to other offenses”).

special prosecutors of Teapot Dome, the Truman Admin-

istration, and Watergate (CC Br. 15-17; Sen. Br. 27-28)

were all appointed by the President or the Attorney

Gereral and were ultimately accountable to the President.

It was, of course, precisely that relationship that the

Ethics in Government Act sought to change.

Vv. THE INDEPENDENT COUNSEL STATUTE IS

NOT CONSTITUTIONALLY JUSTIFIED BY CON-

GRESS’S DESIRE TO ELIMINATE SUPPOSED

CONFLICTS OF INTEREST IN CERTAIN CRIM-

INAL INVESTIGATIONS AND PROSECUTIONS

Appellant and her amici seek to defend the independent

counsel statute as necessary to eliminate supposed “con-

flicts of interest” that might arise if certain criminal

investigations and prosecutions were left to officers ac-

countable to the President. But no such argument of

convenience can render constitutional an _ extra-

constitutional legislative creation or “warrant a distor-

tion of the Framers’ work” (Buckley, 424 U.S. at 134).

“The fact that a given law or procedure is efficient,

convenient, and useful in facilitating functions of gov-

ernment, standing alone, will not save it if it is contrary

to the Constitution. Convenience and efficiency are not

the primary objectives—or the hallmarks—of democratic

government” (Chadha, 462 U.S. at 944; see Synar, slip

op. 20) .*

A. Appellant contends (Br. 48-49) that this Court’s

decisions in Nixon v. Administrator of General Services,

35 Amicus Walsh argues (Br. 2-17) that the Necessary and

Proper Clause (Art. I, § 8, Cl. 18) gives Congress the power to

adopt the independent counsel statute as an appropriate response

to the perceived problem. But that Clause adds nothing to the

analysis. While Congress doubtless has broad power under that

Clause to create offices and to structure the Executive Branch,

the Clause does not allow Congress to adopt measures that violate

other provisions of the Constitution. In Buckley, 424 U.S. at 154-

135, this Court rejected a nearly identical argument. See M’Culloch

\. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (Necessary and

Proper Clause permits measures that “are not prohibited, but con-

sistent with the letter and spirit of the constitution”).

433 U.S. 425 (1977), and CFTC v. Sehor, No. 85-621

(July 7, 1986), call for a balancing approach, under

which policy arguments in defense of the independent

counsel statute might be considered. In appellant’s view,

a balancing approach is appropriate because the inde-

pendent counsel statute does not result in aggrandize-

ment of one Branch at the expense of another. Appellant

is wrong. The statute divests the President and the Sen-

ate of their important roles in selecting and approving

the appointment of executive officers who wield important

governmental powers, and divests the President of his

responsibility for certain criminal prosecutions, while it

aggrandizes the Judicial Branch by vesting it with the

executive power of appointment (and powers to define

prosecutorial jurisdiction and to terminate the office).

But even where such aggrandizement is absent, Nixon

and Schor do not suggest resort to a balancing test if

particular structural provisions of the Constitution are

violated. Neither decision involved the Appointments

Clause or removal authority; neither involved a congres-

sional action whose aim was to transfer authority away

from the Branch that is entrusted with it by the Con-

stitution; and neither suggested that it is ever appropri-

ate to consider Congress’s policy reasons for a deliberate

assault on another Branch’s authority.

In Nixon, the Court rejected a facial challenge, based

only on general separation-of-powers notions, to a statute

that directed the Administrator of General Services to

promulgate and apply regulations governing the disposi-

tion of presidential materials. As the Court emphasized,

the statute assigned the duty to an “official of the Execu-

tive Branch, appointed by the President” (433 U.S. at

441; see also id. at 443), left the Executive Branch “in

full control of the Presidential materials” (id. at 444),

and preserved the President’s power to assert any claims

of privilege (id. at 444-445). There was no displacement

of Article II authority.

Schor did not involve Article II and the Executive

Branch at all, but rather the distinctive body of law gov-

erning Article III and the Judicial Branch. The Court

upheld a statute that authorized the CFTC to rule in the

first instance on certain counterclaims, because (1) the

CFTC jurisdiction over the counterclaims was entirely

voluntary with the parties (slip op. 13-15, 20); (2) it

was not Congress’s aim to withdraw the counterclaims

from the cognizance of the Article III courts (slip op.

20); and (3) the courts retained quite broad power to

review CFTC decisions (id. at 16-22). The Court, while

considering congressional purposes, in no way suggested

that if the underlying congressional aim had been to

transfer authority away from the Judicial Branch or to

deprive litigants of their right to present their claims to

an Article III court, it would have been relevant to con-

sider whether Congress might be able to articulate good

reasons for such an assault on the constitutional struc-

ture. In this case, of course, Congress’s express purpose

was precisely to deprive the President of an important

part of his Article II power, which in turn involuntarily

subjects persons like appellees to investigations and

prosecutions by a person outside the Article II structure.

B. Quite aside from the various structural impedi-

ments to application of a balancing test here, the con-

flict-of-interest concerns that appellant and her amici

seek to weigh in the balance are addressed by the Consti-

tution itself or may be addressed by Congress and the

President pursuant to their powers, under the Necessary

and Proper Clause and the Take Care Clause, to prescribe

rules of conduct for executive officials.

1. To the extent that Congress was concerned about

possible conflicts of interest of particular prosecutors, in-

cluding any Department of Justice official up to and

including the Attorney General, those problems may be

fully addressed by statutes and regulations that require

personal disqualification in particular matters, leaving

them to be handled by other persons who are unaffected

by a conflict. Congress has made it a crime in a broad

class of situations for a federal prosecutor to participate

substantially and personally in matters in which he has

a financial interest. 18 U.S.C. 208. Congress has also

directed the Attorney General to promulgate regulations

requiring disqualification of lawyers and others where a

personal, financial, or political conflict, or its appearance,

would otherwise result. 28 U.S.C. 528. The Department

of Justice has done so. 28 C.F.R. Pt. 45; Young, slip op.

15-16. See also Exec. Order No. 11,222, 3 C.F.R. 306

(1964-1965 comp.) (federal employees may not have fi-

nancial interests that conflict with their duties). Fur-

ther and more stringent statutes on this subject could

be adopted.

If Congress were to conclude that the Attorney General

and the entire Department of Justice might be burdened

by a conflict of interest in certain matters involving high-

level executive officials, it could constitutionally establish

a separate office within the Executive Branch and pro-

vide for presidential appointment, with consent of the

Senate, of a person to fill that office. See Frey & Geller,

Better Than Independent Counsels, The Washington

Post, Feb. 14, 1988, at C7; H. Baker, The Proposed Judi-

cially Appointed Independent Office of Public Attorney:

Some Constitutional Objections and an Alternative, 29

Sw. L.J. 671, 682-683 (1975). Indeed, this and other

possible measures would be available within the constitu-

tional structure even if Congress believed at a particular

time that every person then in the Executive Branch, ex-

cept the President, suffered from a conflict of interest.

It is only the President whose power and duties must

be preserved under Article II.

2. The congressional concerns that underlie the inde-

pendent counsel statute thus reduce, in the end, to a con-

cern about the President himself. The independent coun-

sel statute rests on Congress’s belief that, in certain

cases, there is a “fundamental institutional conflict of

interest” in having the President remain accountable for

a criminal investigation and prosecution (H.R. Rep. 95-

1307, supra, at 2). But as that statement betrays, and

as the Senate Committee later stated explicitly, that con-

flict is “inherent in our system of government” (S. Rep.

97-496, supra, at 4). In this respect, it is like the con-

flict inherent in the courts’ deciding cases affecting

judges’ pay (see United States v. Will, 449 U.S. 200,

214 (1980) ; Atkins v. United States, 556 F.2d 1028 (Ct.

Cl. 1977), cert. denied, 434 U.S. 1009 (1978)) and in

Congress’s deciding whether particular laws will apply

to it. It is not for Congress, outside the Article V amend-

ment process, to decide that the structure established by

the Framers is defective and to assume to cure the defect.

Such attempts to improve upon the Constitution are

especially unwarranted where, as here, they concern a

problem the Framers specifically addressed. The Framers

comprehensively considered the conflicts of interest that

might result from occupying various offices under the

new Government, and the Constitution contains numerous

provisions that address the subject. E.g., Art. I, §6 (no

Senator or Representative may be appointed to civil office

that was created or the emoluments of which were in-

creased during the time for which he was elected: no

person holding any office under the United States shall

be a Member of either House); id. §9, Cl. 8 (no

person holding public office may accept foreign gifts,

emoluments, offices, or titles without congressional con-

sent); Art. II, §1, Cl. 2 (no Senator or Representative

or person holding office may be an elector): id. § 1, Cl.

7 (President’s salary not to be increased or decreased

during time for which he is elected and President may

not receive other emoluments from the United States

or any State). The Framers did not, however, include

a provision requiring the disqualification of the Presi-

dent from exercising his broad powers under Article II

in these or any other circumstances.” Moreover, the

* Notably, in the Convention, Edmund Randolph proposed to ex-

clude “cases of treason” from the pardon power, arguing: “The

President may himself be guilty. The Traytors may be his own

instruments.” 2 Farrand 626. Other members of the Convention,

including George Mason and James Madison. shared the concern

(id. at 626-627), but it was objected that if the President “be

himself a party to the guilt he can be impeached and prosecuted”

(id. at 626 (James Wilson)). See The Federalist No. 74, at 449

(Hamilton); 4 Elliot's Debates 111-112 (James Iredell): 2 id. at

Constitution’s provision for the advice and consent of the

Senate was designed to furnish precisely the sort of

check on “any incautions or corrupt nomination by the

Executive” (2 Farrand 43 (Madison)) or the appoint-

ment of “obsequious instruments of his pleasure” (The

Federalist No. 76, at 458 (Hamilton)) that Congress

appointment of a prosecutor having the requisite quali-

ties of integrity, fairness, and determination.

3. Most important, the Constitution provides for im-

peachment ‘Art. II, § 4) specifically to deal with abuses

of power by the President and other officers, and the

Framers quite deliberately chose to vest the high re-

sponsibility of impeachment in bodies that themselves

are politically accountable to the people (Art. I, § 2, Cl

5 ‘House has the sole power to impeach! ; id. $3, Cl. 6

‘Senate has the sole power to try impeachments)}.

See The Federalist No. 65, at 396-401 ‘Hamilton! ;

id. at 397 ‘in this “NATIONAL INQUEST into the

conduct of public men{],” “who can so properly be

the inquisitors for the nation as the representatives of

the nation themselves?”); 4 Elliot's Debates 114 ‘James

Iredell}. The Framers understood that impeachment was

a remedy of real substance.” The role they expected

that mechanism to play is demonstrated by the express

exemption of impeachment from the President’s other-

wise plenary pardon power. Art. II, §2, Cl. 1. The

197-498 ‘ Mason and Madison). The Framers rejected the exception,

despite the “conflict of interest,” and relied on impeachment as a

remedy. There is no greater constitutional justification for an inde-

pendent counsel than for an independent pardon authority.

87 See The Federalist No. 65, at 396-401 (Hamilton); Id. No. 69,

at 416 (Hamilton): /d. No. 77, at 464 (Hamilton); Jd. No. 81, at

485 (Hamilton): Jd. No. 84, at 511 (Hamilton); 2 Farrand 67-69;

Story 282-290; P. Hoffer & N. Hull, Impeachment in America,

1625-1805. at 96-106 (1984); id at 146 (“By 1975, impeachment

had proved itself an effective and a fair tool of republican gov-

ernment.” ).

Framers adopted this exemption specifically to insure

against presidential protection of “high officers of state”

(4 Elliot’s Debates 113)}—who, once removed, could still

be prosecuted “in the ordinary course of law” ‘see The

Federalist No. 65, at 399 (Hamilton)). Justice Story

explained (Story 551) that the exemption from the par-

don power “takes from the President every temptation

to abuse it in cases of political and official offenses by

persons in the public service.” The exemption was de-

signed as a “check upon his power, so that he cannot by

any corrupt coalition with favourites, or dependents in

high offices, screen them from punishment.”

The independent counsel statute seeks to bypass the

impeachment process that the Framers designed to guar-

antee both that high officers of government could be in-

vestigated and removed from office and that the Presi-

dent, himself subject to impeachment, could be prevented

from protecting his “favourites, or dependents in high

offices.” The Framers assigned the impeachment mech-

anism to Congress because they wanted the responsibil-

ity of dealing with high government misconduct to rest

in a politically accountable assembly. Just as the Presi-

dent may not be divested of or avoid his responsibilities

under the Take Care Clause, Congress may not avoid its

often difficult, but no less crucial, duty of overseeing the

Executive Branch through the means the Constitution

provides for that task.

4. Of course, less drastic tools than impeachment are

available under the Constitution. Ever since 1789, those

tools have been used with great frequency. The regular

prosecutorial organs of the Department of Justice may

be, and have been, used to prosecute high ranking offi-

cials. See United States v. Agnew, 428 F. Supp. 1293

(D. Md. 1977).* Congress may create or provide for the

38 See also Connelly v. United States, 249 F.2d 576 (8th Cir.

1957), cert. denied, 356 U.S. 921 (1958) (Assistant Attorney Gen-

eral and Appointments Secretary under President Truman); Miller

Vv. United States, 24 F.2d 353 (2d Cir.), cert. denied, 276 U.S. 638

(1928) (Attorney General under Presidents Harding and Cool-

creation of permanent watchdog offices like the Inspector

General Offices (5 U.S.C. (& Supp. IV) App. at 987-993)

or the Office of Professional Responsibility of the Justice

Department (28 C.F.R. 0.39). It may establish an

agency of government to address official misconduct or

create a separate unit within an existing department,

like the Public Integrity Section in the Justice Depart-

ment’s Criminal Division. It may create special prose-

cutor offices, or authorize their administrative creation,

on a case-by-case basis.** These approaches have hardly

proved useless: through such normal mechanisms and

through the statutory or regulatory creation of special

prosecutors, high-level executive officers serving under

Presidents Jefferson, Grant, Hayes, Theodore Roosevelt,

Harding, Coolidge, Truman, and Nixon were prosecuted,

and many others have been investigated. See generally

Responses of the Presidents to Charges of Misconduct

(C. Vann Woodward ed. 1974). Congress also has broad

powers to conduct its own investigations short of im-

peachment, as it did, for example, in the Watergate and

Iran Contra hearings. See McGrain v. Daugherty, supra

(investigation of Attorney General’s failure to prosecute

idge); United States v. Babcock, 24 F. Cas. 913 (C.C.E.D. Mo.

1876) (No. 14,487) (President Grant’s personal secretary) ; United

States v. Burr, 25 F. Cas. 55 (C.C.D. Va. 1807) (No. 14,693) (Vice

President, 1801-1805, prosecuted by district attorney ).

39 Pursuant to statute, President Coolidge appointed a special

prosecutor, with Senate consent, to investigate wrongdoing in con-

nection with the Teapot Dome leases. Act of Feb. 8, 1924, ch. 16,

43 Stat. 5-6. A special prosecutor’s office was created within the —

Justice Department in the Nixon Administration. United States v.

Niron, supra. The Attorney General appointed an independent

counsel in 1979 to investigate the relationship between the Carter

Warehouse and the National Bank of Georgia. 44 Fed. Reg. 25837

(1979). All of the current independent counsels have been offered,

and several have accepted, appointments as special prosecutors

within the Department of Justice. See also Jones v. United States,

179 F. 584, 586-590 (9th Cir. 1910) (special prosecutor appointed

by Attorney General); Tyner v. United States, 23 App. D.C. 324,

363 (D.C. Cir. 1904) (special prosecutor appointed by President

Roosevelt ) .

alleged corruption). And Congress has numerous means

of applying political pressure to help secure the Presi-

dent’s faithful execution of the laws. There is no war-

rant after 200 years of experience under the Constitu-

tion for the independent counsel statute’s extra-constitu-

tional means of addressing a problem that the Constitu-

tion itself furnishes ample means to address, through

properly accountable institutions of government.

#° See, ¢.g., Hearings on the Investigation of Regulatory Com-

missions and Agencies Before the Special Comm. on Legislative

Oversight of the House Comm. on Interstate and Foreign Com-

merce, 88th Cong., 2d Sess. 525, 1384-1389 (1958) (Sherman

Adams, under President Eisenhower); S. Rep. 27, 69th Cong., Ist

Sess. (1926) (Sec’y of Treasury Mellon, under President Coolidge) ;

H.R. Rep. 3142, 49th Cony., ist Sess. (1886) (Attorney General

Garland, under President Cleveland); H.R. Rep. 186, 44th Cong.,

Ist Sess. (1876) (Sec’y of War Belknap, under President Grant) ;

H.R. Rep. 684, 29th Cong., Ist Sess. (1846) (Sec’y of State

Webster, under President Tyler); 3 Annals of Cong. 963 (1793)

(See’y of State Hamilton, under [resident Washington) ; Responses

of the Presidents to Charges of Misconduct, supra. See also S. Rep.

96-1015, 96th Cong., 2d Sess. (1980) (Billy Carter, brother of

President).

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOHN R. BOLTON

Assistant Attorney General

Louts R. COHEN

WILLIAM C. BRYSON

Deputy Solicitors General

JAMES M. SPEARS

ROBERT J. CYNKAR

Deputy Assistant Attorneys General

EDWIN S. KNEEDLER

RICHARD G. TARANTO

Assistants to the Solicitor General

ROBERT E. Kopp

DOUGLAS LETTER

THOMAS M. Bonpby

Attorneys

APRIL 1988

WU. &. GOVERNWENT PRINTING OFrice, 1968 202037 60383

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