Amicus Curiae Brief — Morrison v. Olson

No. 87-1279

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

ALEXIA MORRISON, INDEPENDENT COUNSEL,

Appellant,

v.

THEODORE B. OLSON,

EDWARD C. SCHMULTs, and

CAROL E. DINKINS,

Appellees.

On Appeal from the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF COMMON CAUSE AS AMICUS CURIAE

IN SUPPORT OF THE CONSTITUTIONALITY

OF THE INDEPENDENT COUNSEL LAW

Of Counsel: ARCHIBALD Cox

PAUL A. FREUND Langdell 353

Langdell 247 Harvard Law School

Harvard Law School Cambridge, Massachusetts 02138

Cambridge, Massachusetts 02138 (617) 495-3135

(617) 495-3130 DONALD J. SIMON *

Puiup B. HEYMANN SONOSKY, CHAMBERS & SACHSE

Griswold 306 1250 Eye Street, N.W.

Harvard Law School Suite 1000

Cambridge, Massachusetts 02138 Washington, D.C. 20005

(617) 495-3137 (202) 682-0240

Attorneys for Common Cause

March %, 1988 * Counsel of Record

a a a

WILSON - Eres PRINTING Co., Inc. - 789-0096 - WasHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

LK iii

INTEREST OF COMMON CAUSE .........0 1

SUMMARY OF ARGUMENT .............. spinihinibaaiiadgaaai 2

| ES ER 2

II. Separation of Powers... oe a 3

III. Appointments Clause 0 Seta 4

EE Le ee a en 4

I. THE ETHICS ACT DOES NOT UNCONSTI-

TUTIONALLY ASSIGN TO INDEPENDENT

COUNSEL FUNCTIONS WHICH ARE THE

EXCLUSIVE RESPONSIBILITY OF THE

PRESIDENT UNDER ARTICLE II 0. 4

A. The Functions Assigned to Independent

Counsel Are Limited to The Conduct of A

Specific Class of Cases in Which The Presi-

dent Is Likely to Have A Disqualifying Per-

sonal or Political Interest... 4

B. Article II Does Not Bar Assigning To An

Independent Counsel The Conduct Of Par-

ticular Investigations And Prosecutions In

A Limited Category of Cases In Which The

President Is Likely To Have A Disqualify-

ing Personal Or Political Interest... 10

1. History and Precedent Both Demonstrate

That the Investigation And Prosecution

of Such Cases Is Not An Essential Presi-

C0 EEE ae 11

2. Article II Does Not Bar Legislation Vest-

ing In An Inferior Officer Independent

Responsibility For Functions Not Re-

quired To Be Performed by The Presi-

Js we 18

ii

TABLE OF CONTENTS—Continued

3. The Statutory Limitation Upon The

President’s Power of Remeva!l Without

Good Cause Does Not Infringe Upon An

Exclusive Presidential Prerogative

Il. INVESTING INDEPENDENT POWER

TO PROSECUTE SPECIFIC CRIMINAL

CHARGES AGAINST HIGH GOVERNMENT

OFFICIALS IN AN INFERIOR OFFICER

DOES NOT VIOLATE THE SEPARATION

|

Ill. INDEPENDENT COUNSEL ARE “INFE-

RIOR OFFICERS” WHOSE APPOINTMENT

ARTICLE II AUTHORIZES CONGRESS “BY

LAW” TO VEST IN A COURT OF LAW ..........

A. Independent Counsel Are “Inferior Officers”.

B. Appointment of Independent Counsel by a

Court of Law is Authorized by Article II

and Congruent with The Judicial Function

0 ae

CCI acter cecneenceesneeee enamel seenscessingiai a

Page

21

24

ili

TABLE OF AUTHORITIES

Cases: Page

Bowsher v. Synar, 106 S.Ct. 3181 (1986) —............ 21

Buckley v. Valeo, 424 U.S. 1 (1976) ......-.0000-000.--- 17, 21

Commodities Futures Trading Comm. v. Schor,

nc cccccnssccoresees 23, 26

Community for Creative Non-Violence v. Pierce,

786 F.2d 1199 (D.C. Cir. 1986) ...........................- 17

Confiscation Cases, 74 U.S. (7 Wall.) 454 (1868).. 17

Ex Parte Siebold, 100 U.S. 371 (1879) ......000.......... 3, 28, 29

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) .... 25

Humphrey's Executor v. United States, 295 U.S.

SE 20

In re Sealed Case, No. 87-5261 (D.C. Cir. Jan. 22,

a ccceneccncsereces passim

In re Shelley, 2 A.2d 809 (Pa. 1938) ......0000002000.-..... 14

INS v. Chadha, 462 U.S. 919 (1983) .0000..0000 21

Katzenbach v. McClung, 379 U.S. 294 (1964)... 27

Kendall v. United States ex rel. Stokes, 37 U.S.

cacescscceoee 18, 19

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

CS 27

Myers v. United States, 272 U.S. 52 (1926)........ 21

Nixon v. Administrator of General Services, 433

EES 19

People ex rel. Lindsley v. District Court, 66 P. 896

Neen cesneseeaceces 14

State v. Ganthier, 251 P. 141 (Ore. 1924) 14

State v. Hayes, 18 A.2d 895 (Conn. 1941) _............ 14

Taylor v. State, 38 So. 380 (Fla. 1905) 0000000... 14

Territory v. Harding, 12 P. 750 (Mont. 1887)........ 14

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

banc) cert. denied, 381 U.S. 935 (1965) —.......... 17

United States v. Nixon, 418 U.S. 683 (1974)........ 17, 28

United States v. Rock Royal Cooperative, 307 U.S.

SE 21

Weems v. Anderson, 516 S.W.2d 895 (Ark. 1974).. 14

Weiner v. United States, 357 U.S. 349 (1958) _...... 20

Young v. United States ex rel. Vuitton et Fils,

TNT cccomsecsocecconcees 15

iv

TABLE OF AUTHORITIES—Continued

Constitution, Statutes and Regulations: Page

FR SE SN ee ere eee 3

8 Be RE eee a ees 4, 24

ea as CR I al a 3

Act of Feb. 8, 1924, 43 Stat. 5 (1924) —......200--... 16

Davis-Bacon Act, 40 U.S.C. § 276a et seq. 02.0000. 21

Ethics in Government Act of 1978, 28 U.S.C. § 591

et seq., Pub. L. No. 95-521, 92 Stat. 1824 0.0.00... passim

Ethics in Government Act Amendments of 1982,

Pub. L. No. 97-409, 96 Stat. 2039 ........................ 1

Independent Counsel Reauthorization Act of 1987,

Pub. L. No. 100-181, 101 Stat. 1293 0000000000000. 1

Walsh-Healy Act, 41 U.S.C. § 35-45 _....... iunilebieaabere 21

F SF FS Se See eater 15

1 Stat. 65, Sec. 8 (1789) _................ si te ed Bd 15

i ia a I i 15

I is Se i 15

ot pe KT ERERERE cree eae ee oe 8

et AR RE ern merino ve eee 9

Se ke ie ee COD vimiiicidnccsiinsacscinccdcternbssblenicetesiinaina 9

oF PSR RT 0 eres een 9

ie eR Be | eer ner 9

Re en 9

Ala. Code § 12-17-185 (1975) . pee T 14

Cal. [Gov’t.] Code § 24009 (West 1968) . alalealateeiaeai 14

Re UG 8 8 ee ee 14

4 Conn. Col. Rec. 168 (C. Hoadley, ed. 1968) ....... 13

CU. TI, Tt GI Te eictientsctncecenniccmrnecinenctinisnintninnsiabinn 13

Fe OF RR 13

Conn. Gen. Stat. § 51-278 (19838) ................................ 13

Fla. Stat. Ann. § 27.16 (West 1974) ...... slatdiidiainatiaaimiaai 14

Ga. Code Ann. § 15-18-5 (1985) 2000... 14

Ill. Ann. Stat. ch. 14, para. 6 (Smith-Hurd 1987

IND escvcccensiicpsinssiiuihatiaiatitiitiia taints sa diel Naile aca 14

Mo. Rev. Stat. § 56.010 (1986) 000. moe 14

Nev. Rev. Stat. Ann. § 252.020 (Michie 1986). aided 14

Nev. Rev. Stat. Ann, § 252.100 (Michie 1986)........ 14

N.C. Gen. Stat. § 7A-60 (1986) 0000. 14

Okla. Stat. Ann. tit. 19, § 215.20 (West 1962 &

BD. THUD -osecssicconeccnnicccnadiilttsduadseminceidmeiamammnmatinadia 14

Vv

TABLE OF AUTHORITIES—Continued

Congressional Material:

S. Rep. No. 981, 93rd Cong., 2d Sess. (1974) ........

S. Rep. No. 170, 95th Cong., Ist Sess. (1977)........

H.R. Rep. No. 1307, 95th Cong., 2d Sess. (1978)...

The Confirmation of Edwin Meese III to be Attor-

ney General of the United States: Hearings Be-

fore the Senate Committee on the Judiciary,

99th Cong., ist Sess. (1985) .................................

H. Conf. Rep. No. 452, 100th Cong., Ist Sess.

DUNE sichtinincaaets ee eee

Other Authorities:

ABA Model Code of Professional Responsibility,

I las

ABA Model Code of Professional Responsibility,

I ea a aa ke a |

American State Papers, Miscellaneous, I. (1802)...

“An Act for the Better Preventing Theft and

Highway Robberies,” 25 Geo. 2, ch. 36 (1752)...

“An Act for Encouraging the Apprehension of

Highwaymen,” 4 W & M, ch. 8 (1692) ..............

“An Act to Establish the Judiciary Courts of the

United States” reprinted in 5 C. Bickford &

H. Vert. Documentary History of the First

Federal Congress: Legislative Histories 1150

IIIT seuiisiephntetacbbdabamiianstiaaibishatadeatieniuniieataaeimacadedtasaiiaesnas

“An Act for Indemnifying Persons Who Have

Been Guilty of Offenses Against the Laws Made

for Securing the Revenues of Customs and Ex-

cise,” 9 Geo. 2, ch. 385 (1736)................0...-cceceeeeeeee

J. Baker, “Criminal Courts and Procedure at Com-

mon Law,” in Crime in England 1550-1800 (J.S.

Cockburn ed. 1977) .................0-cccccccecececccecceececeseees

Edwards, “The Grand Jury,” 21 Col. L. Rev. 376

I Rich cei a

The Federalist No. 47 (J. Madison) (J. Cooke ed.

SII ichoiccieliasnunnhcaccocderiaahacihehcaaichicinit elas eee-5 che saadecgkangaaies

J. Goebel and T. Naughton, Law Enforcement in

Colonial New York (1970)

22

15

11,12

vi

TABLE OF AUTHORITIES—Continued

S. Johnson, A Dictionary of the English Language

in Which the Words Are Deduced From Their

ERE SR Spee

Johnson's and Walker’s English Dictionaries Com-

bined (1823) ..... SN ARE Nate ee 2

Kurland, Public Prosecutions in England, 1854-

79: An Essay in English Legislative History,

A EEA eS eee

National Association of Attorneys General: Com-

mittee on the Office of Attorney General,

Powers, Duties and Operations of State Attor-

I

Nelson, “Emerging Notions of Modern Criminal

Law in the Revolutionary Era: An Historical

Perspective,” 42 N.Y.U.L. Rev. 450 (1967)...

New York Times, January 23, 1988 at 8, col. 2....

E. Page, Judicial Beginnings in New Hampshire,

I

2 Radzinowicz, History of the English Criminal

Law and Its Administration from 1750 (1956)..

2 The Records of the Federal Convention of 1787

(M. Farrand ed. 1966) .........................-.00.0.ccc eee.

W. Seymour, United States Attorneys (1975) <s =

Thomas Sheridan, A General Dictionary of the

English Language, Vol. I (1780)

J. Smith, Colonial Justice in Western Massachu-

I

Spindel, The Administration of Criminal Justice

in North Carolina, 1720-1740, 25 Am. J. Legal

ae

3 Story, Commentaries on the Constitution of the

United States §§ 1529, 1530 reprinted in 4 The

Founders’ Constitution (P. Kurland and R.

I I sciaedatenemeamunesiiones

2 Z. Swift, Digest of the Laws of the State of

Connecticut (1828 ed.) ......................ceceeeeeceeeeeeeeeee

M. Tachau, Federal Courts in the Early Republic

PEO ccscacocedeiiseades LINE OID AIRED BE aN A En Se

Pave

25

24

12

14

13

26

13

13

vii

TABLE OF AUTHORITIES—Continued

J.J. Tobias, Crime and Police in England 1700-

I

L. Tribe, American Constitutional Law (2d ed.,

Nel RISES Se PS SEE PAEAEInE EF Spies causa eee Outage erseaeea

S. Walker, Popular Justice SRE

Warren, New Light on the History of the Federal

Judiciary Act of 1789, 37 Harv. L. Rev. 49

ae » EI a Eee Tae EE

Noah Webster, An American Dictionary of the

English Language (1830) .....................................

White, The Federalists: A Study in Administra-

I | a errenbieibonnneniinn

1 Op. Att’y Gen. 624 (1823). 0... Ue eeoe! ae

GR, Br Gt, BD 0 BOD noc cncncnccscncceccces secre cessccceseses

11 Op. Att’y Gen. 14 (1864) .........0..... eee

Page

11,12

27

13

14

24

15

20

15

20

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1987

No. 87-1279

ALEXIA MORRISON, INDEPENDENT COUNSEL,

2 Appellant,

THEODORE B. OLSON,

EDWARD C,. SCHMULTS, and

CAROL E. DINKINS,

Appellees.

On Appeal from the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF COMMON CAUSE AS AMICUS CURIAE

IN SUPPORT OF THE CONSTITUTIONALITY

OF THE INDEPENDENT COUNSEL LAW

INTEREST OF COMMON CAUSE

Common Cause, a citizens’ organization of 290,000

members dedicated to integrity, openness, and account-

ability in government, has been an active advocate of the

Ethics in Government Act of 1978, 28 U.S.C. §§ 591

et seq., Pub. L. No. 95-521, 92 Stat. 1824, since the origi-

nal bill was introduced. Common Cause has filed briefs

amicus curiae in support of the Independent Counsel pro-

visions of the Act not only in the lower court in this case,”

1The law has been twice amended and reenacted. Ethics in

Government Act Amendments of 1982, Pub. L. No. 97-409, 96 Stat.

2039; Independent Counsel Reauthorization Act of 1987, Pub. L.

No. 100-181, 101 Stat. 1293.

2JIn re Sealed Case, No. 87-5261 (D.C. Cir. Jan. 22, 1988) (slip

op.).

but in other cases involving the constitutionality of the

Act.

Common Cause submits this brief in support of Appel-

lant and the constitutionality of the Independent Counsel

provisions of the Ethics Act. The written consents of the

parties to the submission of this brief have been lodged

with the Clerk pursuant to Rule 36.2.

SUMMARY OF ARGUMENT

I. Article Il

Four propositions demonstrate that the Ethics in Gov-

ernment Act of 1978 does not unconstitutionally attempt

to vest in the Independent Counsel functions that must

remain under Presidential control by virtue of Article II.

First, the Ethics Act confers upon the Independent

Counsel only that degree of independence in the conduct

of specific criminal investigations and prosecutions neces-

sary to preserve public confidence in the integrity and

impartiality with which the rule of law is applied to cer-

tain high government officials in whom the President or

Attorney General have personal or partisan political in-

terests which are likely to conflict with the even-handed

administration of justice. An Independent Counsel is an

officer whose role is limited to sharply defined bounds set

by others, whose term is temporary, who is subject to the

web of restraints imposed on all prosecutors by both the

Justice Department and the courts, and who may be

removed from office for avoidable violation of the Depart-

ment’s policies or other malfeasance or misconduct.

Second, even assuming that some executive functions

are exclusively Presidential, the limited functions of the

Independent Counsel are not so essentially Presidential as

to fall in that category. A wealth of legal and constitu-

tional history combine with contemporary practice to

show that, although the federal practice has usually been

to reserve ultimate control of prosecutions to the Presi-

dent and Attorney General, that control has never been

regarded as a constitutionally exclusive prerogative of the

Chief Executive. Indeed, despite the federal practice,

structural separation of prosecutorial functions from the

Chief Executive has always been far more common than

consolidation, in both Britain and the United States.

Third, neither the vesting of “executive power” in a

President, U.S. Const. Art. II, § 1, el. 1, nor the charge

that the President “take Care that the Laws be faithfully

executed,” U.S. Const. Art. II, §3, requires that the

President control every function that might be described

as executive. The Court has often sustained the constitu-

tionality of laws giving another officer or agency the final

responsibility for performing a discretionary function

that might otherwise be performed by the President. This

long-established principle carries the greatest force where,

as here, the purpose of creating an independent office is

to eliminate the risk of personal or political interference

with impartial enforcement of the rule of law against

high officials.

Fourth, where Congress and the President have power

by law to create an office independent of Presidential con-

trol in order to ensure entire impartiality, they also have

power by law to forbid the President from removing the

officers without good cause.

Il. Separation of Powers

The Ethies Act does not violate the separation of powers.

The Act does not give Congress a role in the selection of

the Independent Counsel or in the Counsel's conduct of an

investigation or prosecution. The power given to the

courts does not enlarge the constitutional functions of the

courts. The power to appoint counsel and define his juris-

diction is granted by the express words of Article II,

Section 2. Ex Parte Siebold, 100 U.S. 371 (1879). The

judicial function under Article III] has long embraced

such powers over the conduct of prosecutors, and of judi-

cial review of dismissals for just cause, as are authorized

by the Ethics Act.

4

III. Appointments Clause

The limited nature of the Independent Counsel’s respon-

sibilities, as well as history and contemporary practice,

combine to demonstrate that the Independent Counsel are

“inferior officers” whose appointment Article II, § 2, cl. 2,

expressly authorizes Congress “by law” to vest in the

courts of law. Nothing in the text, history, context or

policy of the Constitution supports the court of appeals’

conclusion that “inferior” must carry the meaning “sub-

ordinate to a principal officer.” Jn re Sealed Case, slip op.

at 17. Ex Parte Siebold makes plain that the courts may

be vested with power to appoint non-judicial officers when

congruent with their duties under Article III. No incon-

gruity is involved in the court appointment of a prosecu-

torial official.

ARGUMENT

I. THE ETHICS ACT DOES NOT UNCONSTITUTION-

ALLY ASSIGN TO INDEPENDENT COUNSEL

FUNCTIONS WHICH ARE THE EXCLUSIVE RE-

SPONSIBILITY OF THE PRESIDENT UNDER

ARTICLE II.

A. The Functions Assigned to Independent Counsel

Are Limited to The Conduct of A Specific Class of

Cases in Which The President Is Likely to Have A

Disqualifying Personal or Political Interest.

The Independent Counsel provisions of the Ethics Act

are designed to implement two ideals fundamental to our

constitutional system. One is the rule of law, which binds

even the President and denies the President the power to

set the law aside or to exempt any official from the usual,

impartial steps in the administration of criminal justice.

The second is the principle of equal justice under law,

which precludes any official with a personal or partisan

interest in the outcome from participating in the admin-

istration of criminal justice in a particular case. Observ-

ance of both these principles is essential to the preserva-

tion of that publie trust in government without which a

free society cannot survive.

5

Watergate demonstrated that disregard of these prin-

ciples, particularly by self-interested Presidential inter-

vention in a criminal investigation, precipitates a major

crisis in the publie’s trust in government. Prior to the

appointment of a Special Prosecutor, the Assistant Attor-

ney General in charge of the Criminal Division of the

Department of Justice had served as a “conduit for a con-

stant flow of information from the grand jury and the

prosecutors” to both President Nixon and his counsel.

8. Rep. No. 981, 93rd Cong., 2d Sess. 80 (1974). White

House counsel was told the identity of witnesses who

would be called before the grand jury and what questions

they would be asked. /d. The Department of Justice

made sure that the investigation was narrowed down. /d.

Later, after extensive hearings, the House Judiciary Com-

mittee that reported the Ethics Act concluded:

The Attorney General is at the same time the chief

Federal law enforcement official and a Presidential

appointment who is a key member of the President’s

cabinet. Cases involving possible wrongdoing by

high-level executive branch officials, therefore, present

a fundamental conflict of interest.

H.R. Rep. No. 1307, 95th Cong., 2d Sess. 2 (1978).

In 1982 and again in 1987, after nine years’ experience

during which time there was need to appoint Independent

Counsel on ten occasions, Congress—both times with the

concurrence of President Reagan—again reached the

conclusion that legislation was needed to meet the grave

danger of improper Executive interference with crimi-

nal investigations of high-ranking Executive officials.

Not only actual conflict, but the appearance of conflict

was deemed by Congress to be a compelling justification

for the law."

3 As phrased by the Senate Judiciary Committee :

The appearance of conflict is as dangerous to public confidence

in the administration of justice as true conflict itself. Having

men of integrity operate in the face of a conflict is an insuf-

ficient protection for a system of justice.

S. Rep. 170, 95th Cong., Ist Sess. 6 (1977).

The independence of the investigation into charges of

wrongdoing by a high executive official is also the best

protection against unjust injury to the innocent. A pros-

ecutor with personal or political ties to the individual

charged may intentionally or unintentionally be unfairly

aggressive because of awareness that he may be sus-

pected of favoritism. His decision not to prosecute will

do little to restore the official’s reputation if the public

has reason to suspect that the decision was influenced by

personal favoritism. The present Attorney General has

testified that the appointment of an Independent Counsel

“was the only effective and fair way to determine the

merits” of charges of wrongdoing against him while he

was Counsellor to the President. The Con,irmation of

Edwin Meese Ill to be Attorney General of the United

States: Hearings Before the Senate Committee on the

Judiciary, 99th Cong., 1st Sess. 96 (1985).

The provisions of the Act are carefully tailored to se-

cure these goals. They apply only to criminal investiga-

tions against a very limited number of high officials, in

the outcome of which the President or Attorney General

will often have a disqualifying personal interest because

of either close association or the probable effect of the

disposition of the charges upon their own political for-

tunes.’ Independent Counsel are to be appointed only if,

* Experience disproves the court of appeals’ suggestion that the

statutory freedom of Independent Counsel from Presidential over-

sight subjects high officials to risk of serious unfairness because

an Independent Counsel will feel excessive pressure to produce

indictments and convictions. In re Sealed Case, slip op. at 65-70.

Six of the ten Independent Counsel have closed their investigations

without an indictment. Three investigations are still pending.

Only two indictments have been returned, one in a pending investi-

gation. New York Times, January 23, 1988 at 8, col. 2.

528 U.S.C. § 591(b) limits coverage to charges of wrongdoing by

the President, Vice President, high officials in the White House,

Justice Department and CIA, and ranking officers of the President's

national campaign committee. Additionally, under Section 591(c),

the Attorney General may request an independent counsel if he

7

after a “preliminary investigation” by the Department

of Justice, the Attorney General finds “reasonable ground

to believe that further investigation or prosecution is

warranted.” 28 U.S.C. § 592.

In requiring the Attorney General to apply for the ju-

dicial appointment of an Independent Counsel in this

narrow class of cases, Congress did no more than to in-

voke the ancient legal and equitable principle that a fidu-

ciary should stand aside from any transaction in which

he has personal or pecuniary interests, even though he

sincerely believes that he can—and conceivably can—

weigh the beneficiaries’ interests without regard to his

own. The Attorney General is a fiduciary charged with

securing for the benefit of the public the disinterested

investigation and prosecution of federal crimes. Personal

and partisan interest in the outcome of a criminal in-

vestigation is no less disqualifying than a financial in-

terest. Close official and political association is scarcely

less disqualifying than the ties of family and friendship.

Many honorable Attorneys General would recuse them-

selves from personal participation in a sizeable propor-

tion of the cases covered by the Ethies Act. So would a

President. The Act does little more than make this pre-

cept law for the special category of cases in which the

disqualifying conflict is most likely to arise.

The powers of any Independent Counsel are confined

within a carefully circumscribed area. Section 592/d)

(1) requires the Attorney General to furnish the court

sufficient information to define the “prosecutorial juris-

diction” of an Independent Counsel. Section 593/b) di-

rects the court to define that jurisdiction. It is implicit

that the jurisdiction of an Independent Counsel will be

confined to investigating activities substantially related

to the conduct constituting the violation or violations of

determines that an investigation by the Justice Department “may

result in a personal, financial or political conflict of interest.” 28

U.S.C. § 591(¢).

law suggested in the information submitted by the At-

torney General to the court.

The Act gives an Independent Counsel “full power and

independent authority to exercise all investigative and

prosecutorial functions and powers” with respect to the

specific matters confined to him. 28 U.S.C. § 594(a).

The Justice Department is forbidden to interfere within

that jurisdiction. 28 U.S.C. § 597. This degree of inde-

pendence is secured by a prohibition against removal

without good cause. 28 U.S.C. § 596(a). Without these

safeguards there could be no assurance that in a case in-

volving one or more officials high in the Administration

the conflicting personal or political interests of the Presi-

dent or Attorney General would not defeat or distort the

cause of justice.

This danger has both obvious and subtle forms. Con-

gress was well aware of the best illustration of the ob-

vious form—the first Watergate Special Prosecutor was

dismissed contrary to assurances of total independence

and of security against his removal for anything other

than “extraordinary improprieties.” 28 C.F.R. § 0.37

(1973).

The need for safeguards against subtler, less dramatic

interference is even greater. The attorney in charge of

a case against a high executive official will often be re-

quired to decide such questions as whether to pursue or

drop a particular line of investigation, whether to sum-

mon a particular witness before the Grand Jury, whether

to subpoena certain documents or to respect claims of

privilege, whether to grant immunity to a witness, or

whether and when to seek and release an indictment

against one of the possible defendants. Under many cir-

cumstances the decision of such a question may carry,

or seem likely to carry, serious political or personal im-

plications for the President or Attorney General. Direct

and indirect pressure may be put upon the prosecutor.

The closer the question, the greater the need for inde-

pendence. The attorney in charge of the investigation

9

will find himself in a quandary if the President or At-

torney General retains power to remove him and termi-

nate his investigation. Is the particular witness, piece of

evidence or line of investigation so important to the dis-

charge of his responsibility as to justify risk of dis-

missal and termination of independent investigation? Or

would the ultimate goal best be pursued by yielding in

the particular instance?

Although he is guaranteed a measure of independence,

an Independent Counsel has no power to make policy.

He is bound by the policies established for the Depart-

ment of Justice unless inconsistent with his statutory

duty. 28 U.S.C. § 594(f). Any significant violation of

an established departmental policy might well give “good

cause” for the Attorney General to remove an Independ-

ent Counsel, as authorized by Section 596(a) (1).

The restraints imposed by the established policies of

the Department of Justice are very real. The Depart-

ment has promulgated extensive guidance in Title 28,

Part 45 of the Code of Federal Regulations, and in the

three massive volumes on criminal proceedings from the

U.S. Attorneys Manual.*

In deciding whether to begin or to decline prosecution,

the federal prosecutor is bound by the principles of fed-

eral prosecution, U.S.A.M. 9-27 (1984), which state in

some detail the situations in which it is or is not proper

to exercise the prosecutor’s discretion in favor of prose-

* Departmental regulations require an attorney to disqualify him-

self for any personal or political relationship that might undermine

impartiality. 28 C.F.R. 45.735-4 (1987). Proceedings in the grand

jury are the subject of very extensive policy recommendations deal-

ing with everything from what advice must be given to recipients

of subpoenas, to the disclosure of exculpatory evidence and the

proper use of contempt. E.g., U.S.A.M. 9-11.260, 9-11.334, 9-39.000

(1984). The U.S. Attorneys Manual provides direction and guid-

ance in many cases as to when it is appropriate or inappropriate

to use a particular statute. F.g., U.S.A.M. 9-27.210-27.260 (1984) ;

see also 28 C.F.R. 59.1(b) (1987), 28 C.F.R. 50.10 (1987), U.S.A.M.

9-11.270 (1984).

10

cution. As members of the bar, federal prosecutors are

also required to conform to the professional canons and

rules of the courts.’ The prosecutor’s conduct at trial is

no less bound by court rules, department standards, and

professional canons of behavior.

In sum, although an Independent Counsel is charged

with the ultimate responsibility for decisions concerning

a particular investigation and any resulting prosecu-

tions, his decisions are made within an extensive frame-

work of professional obligations and traditions, judicial

oversight, and Department of Justice policies and rules.

In his handling of cases, the prosecutor has duties to the

law, to his profession, and to the courts.

B. Article II Does Not Bar Assigning To An Inde-

pendent Counsel The Conduct of Particular Inves-

tigations And Prosecutions In A Limited Category

of Cases In Which The President Is Likely To Have

A Disqualifying Personal Or Political Interest.

The majority opinion below advances two overlapping

reasons for rejecting the proposition stated above: first,

the broad proposition that Article II incorporates the

concept of a unitary executive under the President and

therefore bars any law vesting any independent responsi-

bility for any “executive” function in any other official,

slip op. at 42; second, the narrower proposition that, in

any event, control over all criminal investigations and

prosecutions is a quintessential Presidential responsibil-

ity which may not be limited or denied in any part, even

by a law enacted by Congress and signed by the Presi-

dent. Jd. at 26, 51.

™The ABA Model Code of Professional Responsibility stresses

the prosecutor’s respensibility to “seek justice, not merely to con-

vict.” Model Code of Professional Responsibility, E.C. 7-13 (1981).

Disciplinary Rule 7-103 circumscribes the prosecutor’s conduct by

stipulating that a prosecutor may not initiate criminal charges

when he knows the charges are not supported by probable cause,

and by requiring a prosecutor te make timely disclosure to the

defense of any evidence negating guilt or punishment. /d. at D.R.

7-103.

11

We deal with the narrower contention first. We also

assume that, under Article II, there are some Presiden-

tial prerogatives of which he may not be deprived by leg-

islation. Nevertheless, both history and precedent dem-

onstrate that the conduct of particular criminal investi-

gations and prosecutions is not an essential Presidential

function. We then show that the sweeping concept of a

unitary executive advanced by the court below is con-

trary to well-established practice and the decisions of this

Court.

1. History and Precedent Both Demonstrate That

The Investigation and Prosecution of Such Cases

Is Not An Essential Presidential Function.

To prevail in this case the Independent Counsel need

not show that no criminal investigations or prosecutions

are the exclusive prerogative of the President. The Act

applies, as we have shown, only in those situations in

which the danger of conflict is the greatest. In truth,

the partial structural separation created by the Ethics

Act is far less than our legal and constitutional history

and contemporary practice will support.

In describing a prosecutor as quintessentially an arm

of the President, the majority below presented a view

that contrasts strangely with legal history, American

practice, and contemporary views of a prosecutor’s du-

ties. Moreover, although federal laws have usually vested

a degree of control in the Executive Branch as a matter

of practice, not of constitutional necessity, control over

the conduct of specific cases has never been regarded as

quintessentially executive and responsive to the head of

state.

In early English history, prosecutions were not initi-

ated by the Crown. Virtually all prosecutions were pri-

vate, initiated by the victim of the crime.‘ A justice of

* J. Baker, “Criminal Courts and Procedure at Common Law,” in

Crime in England 1550-1800 15-17 (J.S. Cockburn ed. 1977): J.J.

Tobias, Crime and Police in England 1700-1900 117-19 (1979);

12

the peace would then investigate the complaint, and if

there was a prima facie case, he would issue a bill of

indictment. If a grand jury then deemed the indict-

ment a “true bill,” the case went to trial. At trial, the

victim generally acted as the “prosecutor,” sometimes

represented by counsel.’

In the century before the ratification of the Constitu-

tion, the English system of prosecution was still domi-

nantly one carried on by private individuals. Indeed,

concerned by the large number of crimes that went un-

prosecuted, Parliament enacted a series of measures to

encourage private prosecutions."° By the late seventeenth

century, private prosecuting societies developed to pro-

mote the “enforcement” of the laws.” " Plainly these

prosecutions were not subject to the King or the King’s

officers.'* Neither the inquiries into possibly criminal ac-

Kurland, Public Prosecutions in England, 1854-79: An Essay in

English Legislative History, 1959 Duke C.J. 493, 494-7.

* See generally, Baker, supra at 15-20; Tobias, supra at 128-31.

” E.g., “An Act for Encouraging the Apprehension of Highway-

men,” 4 W & Mch. 8 (1692); “An Act for Indemnifying Persons

Who Have Been Guilty of Offenses Against the Laws Made for

Securing the Revenues of Customs and Excise,” 9 Geo. 2, ch. 35

(1736); “An Act for the Better Preventing Theft and Highway

Robberies,” 25 Geo. 2, ch. 36 (1752); see generally 2 Radzinowicz,

History of the English Criminal Law and Its Administration from

1750 57-63, 68-72, 74-82 (1956).

1! Tobias, supra at 126-28; ™ dzinowicz, supra at 2-5, 122-3.

These societies, composed of private individuals, raised money to

nire agents to police certain districts, detect offenders, gather evi-

dence and sponsor prosecutions. Similarly, local self-protection asso-

ciations were formed to fulfill many of the roles later played by

public police forces. Tobias, supra at 126-8, Radzinowicz, supra at

202-9.

12 Not until the creation of a public police force in the mid-

nineteenth century did a public body become responsible for prosecu-

tions. A Director of Public Prosecutions was created in 1879, but

even so, this office fulfilled a largely advisory role, giving assistance

to the still-prevalent private prosecutors. Tobias, supra at 125.

13

tivity nor the grand jury’s indictments nor the conduct

of the prosecution were subject to executive control.

The separation of criminal investigations and prose-

cutions from the executive functions of the Governor was

also familiar in the American colonies, soon-to-become

states. In the colonial era most prosecutions were initi-

ated by the aggrieved citizen. Justices of the peace

were also quasi-prosecutors. In the period immediately

after the adoption of the Constitution, the grand jury

itself conducted much of a criminal investigation, in con-

junction with the summons power of the magistrate, in-

dependent of the behest or supervision of a public prose-

cutor.'* Where there were public prosecutors, their ap-

pointment was not the preserve of the chief executive.

Connecticut’s courts, for example, began appointing the

state’s district attorneys in 1704 and continued to do so

until 1984."°

Today, in at least forty-four states where, as under the

U.S. Constitution, government is based on the separation

of powers, prosecutors are not subject to the Chiet Ex-

ecutive. In forty-two states, the attorney general is

elected. In Maine, the attorney general is appointed by

the state legislature, and in Tennessee by the state su-

13J. Smith, Colonial Justice in Western Massachusetts 129-30

(1961); J. Goebel and T. Naughton, Law Enforcement in Colonial

New York 339-48, 370 (1970); Spindel, The Administration of

Criminal Justice in North Carolina, 1720-1740, 25 Am.J. Legal Hist.

141, 146 (1981); Nelson, “Emerging Notions of Modern Criminal

Law in the Revolutionary Era: An Historical Perspective,” 42

N.Y.U.L. Rev. 450, 467-68 (1967); E. Page, Judicial Beginnings in

New Hampshire, 1640-1700 107 (1959).

4M. Tachau, Federal Courts in the Early Republic 96 (1978).

J. Goebel and T. Naughton, supra at 337, 350-51, 355-59; S. Walker,

Popular Justice 111-12 (1980); Edwards, The Grand Jury, 21

Col.L.Rev. 376-78 (1921)- 2 Z. Swift, Digest of the Laws of the

State of Connecticut, 369 (1823 ed.).

5 4 Conn. Col. Rec. 468 (C. Hoadley, ed. 1868); Conn. Stat. 1808,

p. 67 §6; Conn. Stat. 1821, p. 141, § 22; Conn. Gen. Stat. § 51-278

(1983) ; Swift, supra at 369.

14

preme court."* The practice of electing local prosecutors

is widespread.'’ Court appointment of special prosecu-

tors is a common practice in the states.’*

Given this background, it would be surprising to find

that the Framers of the Constitution regarded control

over all criminal prosecutions as an exclusive and indis-

pensable function of the President. And indeed, the evi-

dence of their views points the other way. Section 32 of

the first Senate draft for the Judiciary Act of 1789 pro-

vided that each district court should appoint “a meet

person learned in the law, to act as Attorney of the

United States in such district,” and that the Supreme

Court should appoint “a meet person learned in the law

to act as Attorney General for the United States... .”

Warren, New Light on the History of the Federal Judi-

ciary Act of 1789, 37 Harv. L. Rev. 49, 108-09 (1923).

Five of the ten draftsmen of that provision, including

Oliver Ellsworth, had attended the Philadelphia Con-

vention.

Although the bill was revised to provide for Presi-

dential appointment with the advice and consent of the

16 See National Association of Attorneys General: Committee on

the Office of Attorney General, Powers, Duties and Operations of

State Attorneys General 77-78 (1977).

17 See Cal. [Gov’t.] Code § 24009 (West 1968); Mo. Rev. Stat.

§ 56.010 (1986); Nev. Rev. Stat. Ann. § 252.020 (Michie 1986) ;

N.C. Gen. Stat. § 7A-60 (1986); Okla. Stat. Ann. tit. 19, § 215.20

(West 1962 & Supp. 1988). The Colorado constitution provides for

the election of local prosecutors. See Colo. Const. Art. VI, § 13.

18 See Ala. Code § 12-17-185 (1975); Fla. Stat. Ann. § 27.16

(West 1974); Ga. Code Ann. § 15-18-5 (1985); Ill. Ann. Stat. ch.

14, para. 6 (Smith-Hurd 1987 Supp.); Nev. Rev. Stat. Ann.

§ 252.100 (Michie 1986). See also Weems v. Anderson, 516 S.W.2d

895 (Ark. 1974); In re Shelley, 2 A.2d 809 (Pa. 1938); State v.

Hayes, 18 A.2d 895 (Conn. 1941); Taylor v. State, 38 So. 380 (Fla.

1905); Territory v. Harding, 12 P. 750 (Mont. 1887); People ex rel.

Lindsley v. District Court, 66 P. 896 (Colo. 1901) ; State v. Ganthier,

231 P. 141 (Ore. 1924).

15

Senate,"® the 19th century history of the Department of

Justice argues against, rather than for, the proposition

that control of criminal prosecutions was perceived to be

an exclusively Presidential function. The early U.S. At-

torneys were private lawyers who worked on the basis

of fees for services rendered.” Their tie to the judiciary

is reflected in the appropriation bills linking the fees and

costs of the U.S. Attorneys, not with the executive, but

with the courts.*' U.S. judges filled vacancies in the office

without requiring statutory authority. See 6 Op. Att’y

Gen. 80 (1853). Indeed, Congress continued until the

early 19th century the British practice of relying upon

private informers to bring law violations to the atten-

tien of the courts.”

In 1870, U.S. Attorneys were brought under the At-

torney General and Department of Justice.” The gen-

eral conduct of law enforcement came under increasing

executive control on behalf of the President. But these

developments have never operated to make prosecution

an absolute or unchangeable prerogative of the President

and Department of Justice. A federal court may desig-

nate an attorney to prosecute a criminal contempt.

Young v. United States ex rel. Vuitton et Fils, 107 S.Ct.

2124 (1987). In 1924 Congress did not hesitate to give

the special counsel appointed to investigate the Teapot

1% There is no hint in the records, letters and diaries of the time

to suggest that this revision was made for constitutional rather

than policy reasons.

20 White, The Federalists: A Study in Administrative History

406-08 (1948). American State Papers, Miscellaneous, I. 303

(1802).

21 See “An Act to Establish the Judiciary Courts of the United

States” reprinted in 5 C. Bickford & H. Vert. Documentary History

of the First Federal Congress: Legislative Histories 1150, 1165

(1986).

221 Stat. 29, Sec. 29 (1789); 1 Stat. 65, Sec. 8 (1789): 1 Stat.

101, See. 3 (1790); 1 Stat. 452, See. 3 (1796); see generally L.

White, supra at 415-17.

23 See Seymour, United States Attorneys 22 (1975).

16

Dome scandal “charge and control of the prosecution of

such litigation, anything in the statutes touching the

powers of the Attorney General of the Department of

Justice to the contrary notwithstanding.” Act of Febru-

ary 8, 1924, 43 Stat. 5 (1924). Criminal prosecutions

were specifically included.

The argument of the court below for exclusive Presi-

dential control of prosecutors draws scant support from

the citation of hypothetical instances in which a prose-

cutor’s pursuit of particular evidence or lines of inquiry

might, if pressed too far, run counter to the views of the

public interest held by other conscientious officials. Jn re

Sealed Case, slip op. at 71. Independent Counsel can be

expected to listen attentively to the representations of

other officials concerning the effect of his intended ac-

tions upon other governmental concerns. Negotiation

will nearly always resolve any differences. Should nego-

tiation fail, the Independent Counsel has no coercive

power of his own. The very most he can do is to invoke

the coercive power of a court. The views of other gov-

ernment officials will be heard and weighed in the en-

suing proceeding. The Ethics Act gives the Attorney

General a right to appear as amicus curiae.. 28 U.S.C.

£$597(b). The process would provide no little assurance

that excessively single-minded pursuit of prosecutorial

concerns will not damage relations with another country

or other national interests. As for the rest, Congress

could properly decide that the damage likely to be done

by independent prosecution was less than the damage

done to the public interest by leaving the prosecution of

eases in which the President and Attorney General have

an actual or apparent conflict of interest nonetheless sub-

ject to their control.

There is nothing contrary to the teachings of history

in the opinions quoted by the court below. slip op. at 26-

51, to the effect that the “power to decide whether to

investigate, and when to prosecute. lies at the core of

the Executive’s duties to see to the faithful execution of

17

the laws.” Those opinions, with one exception, were de-

scribing not an arrangement ordained by the Constitu-

tion but the authority of the Executive Branch under the

then existing statutes and practices.** The single excep-

tion, Justice White’s opinion in Buckley v. Valeo, 424

U.S. 1, 285 (1976), speaks only of a congressional effort

to usurp the functions of law enforcement, and obviously

has no bearing upon giving independence to a prosecutor

wes may well be described as belonging to the Executive

ranch.

On the other hand, United States v. Nixon, 418 US.

683 (1974), confirms the teachings of history, State

practice, and professional discipline. The regulation of

the Department of Justice giving the Watergate Special

Prosecutor “plenary authority to control the course of

investigation and litigation related to” the Watergate

matter would not- have been law binding on the Court

if it had given away an authority that Article II requires

to be vested in the President. And if the power to make

independent prosecutorial judgments can be vested in a

special prosecutor by departmental regulation approved

by the President, surely the same authority can be vested

in such an officer by a law enacted by Congress and ap-

proved by the President.

Nor can Nixon be distinguished upon the ground that

there the President retained legal power to rescind the

regulation. President Nixon had given the most solemn

public assurances that he would not revoke the regula-

tion. It passes the limits of imagination to suppose that

the Framers would have believed that the legal power of

a President to revoke a regulation in violation of a sol-

emn public promise is so important that they would be

willing to allow the President to delegate independent

* United States v. Nixon, 418 U.S. 683, 693 (1974): United States

v. Cox, 342 F.2d 167, 171 (5th Cir.) (en banc), cert. denied, 381

U.S. 935 (1965). Community for Creative Non-Violence v. Pierce,

786 F.2d 1199, 1201 (D.C. Cir. 1986). See also Confiscation Cases,

74 U.S. (7 Wall.) 454 (1868).

18

prosecutorial responsibility to another officer based on

such a solemn commitment, but would nevertheless be

unwilling to allow such independent responsibility to be

so vested by a law made by the President and Congress,

or enacted over the President’s veto by a two-thirds ma-

jority in each House. In reality, though, the power to

dismiss an Independent Counsel for “good cause” gives

a President greater control under the Ethics Act than

President Nixon retained in the Watergate affair.

2. Article 11 Does Not Bar Legislation Vesting In

An Inferior Officer Independent Responsibility

for Functions Not Required to Be Performed by

the President.

Once it is recognized that control over specific crimi-

nal prosecutions is not quintessentially a Presidential

function, the Article II attacks on the Ethies Act quickly

dissipate. The court of appeals assumes that because the

Constitution establishes three branches of government—

characterized as legislative, executive, and judicial—the

Constitution requires this Court by the definitions it

gives to those terms to draw sharp lines assigning each

and every governmental activity exclusively to one or

another branch. This proposition has repeatedly been re-

jected by this Court.” To turn the separation of powers

among the three branches into a rule requiring Presi-

dential control over every decision that may be denomi-

nated “executive” stands upon its head a _ principle

adopted to ensure the diffusion of power.

The principle that Congress and the President may by

law vest in a designated officer the responsibility for per-

forming specific executive functions, and also make that

officer’s decision final and binding upon others, was estab-

lished in the early days of the Republic. In Kendall v.

United States ex rel. Stokes, 37 U.S. (12 Pet.) 524

(1838), the Court issued a writ of mandamus to require

25 See Nixon v. Administrator of General Services, 433 U.S. 425,

441-446 (1977), and authorities there cited; «f/f. The Federalist

No. 47 at 325-26 (J. Madison) (J. Cooke ed. 1961).

19

the Postmaster to comply with a law directing him how

to settle a disputed account, typically an executive func-

tion. To arguments drawn from Article II and the sepa-

ration of powers the Court replied:

The theory of the constitution undoubtedly is, that

the great powers of the government are divided into

separate departments; and so far as these powers are

derived from the constitution, the departments may

be regarded as independent of each other. But

beyond that, all are subject to regulations by law,

touching the discharge of the duties required to be

performed.

Id. at 610.

The Court continued:

The executive power is vested in a President; and as

far as his powers are derived from the constitution,

he is beyond the reach of any other department,

except in the mode prescribed by the constitution

through the impeaching power. But it by no means

follows, that every officer in every branch of that

department is under the exclusive direction of the

President.

Id. (Emphasis added. )

The Court next recognized that there are many “political

duties” imposed on officers in the Executive Branch that

are normally discharged under direction of the President,

and then went on to rule:

But it would be an alarming doctrine, that congress

cannot impose upon any executive officer any duty

they may think proper, which is not repugnant to

any rights secured and protected by the constitution;

and in such cases, the duty and responsibility grow

out of and are subject to the control of the law, and

not to the direction of the President.

Id.**

“6 This sentence follows immediately after the truncated and

therefore misleading excerpt quoted in note 21 to the majority

opinion in the court of appeals. Slip op. at 26.

Since 1887 the increase in social and economic legisla-

tion has multiplied exponentially the number of instances

in which the laws vest in designated officers the power of

final decision without interference by the Chief Executive

on a matter that might have been left to his discretion.

The constitutionality of such legislation is beyond ques-

tion. See e.g., Humphrey's Executor v. United States,

295 U.S. 602 (1935). The President’s duty to “take Care

that the Laws be faithfully executed” is performed by

taking care that the officer faithfully performs the statu-

tory duty. See 1 Op. Att'y Gen. 624, 626 (1823), 11 Op.

Att’y Gen. 14, 16 (1864). The Ethics Act does not inter-

fere with the President's performance of this constitu-

tional duty because Section 596(a)(1) gives the Attorney

General power to remove an Independent Counsel “for

good cause, physical disability, mental incapacity, or any

other condition that substantially impairs the performance

of such independent counsel’s duties.”

3. The Statutory Limitation Upon The President's

Power of Removal Without Good Cause Does

Not Infringe Upon An Exclusive Presidential

Prerogative.

Just as the century-old practice of establishing inde-

pendent agencies to perform functions that might be dele-

gated to the President illustrates that the Constitution

does not require Presidential control of every non-

legislative and non-judicial function, so too the decisions

of this Court show that the power of the President to

remove an officer at his pleasure may constitutionally be

limited by law in a situation like that here, where Con-

gress has constitutionally created an office whose duties

are to be performed independent of Presidential control.

Huwphrey’s Executor v. United States, 295 U.S. 602

(1935). See also Weiner v. United States, 357 U.S. 349

(1958) .*"

27 To distinguish Humphrey's Executor, as the court below does,

upon the ground that the Court spoke of the functions of independ-

ent agencies as “quasi-legislative” and “quasi-judicial” is to at-

21

Il. INVESTING INDEPENDENT POWER TO PROSE-

CUTE SPECIFIC CRIMINAL CHARGES AGAINST

HIGH GOVERNMENT OFFICIALS IN AN _ IN-

FERIOR OFFICER DOES NOT VIOLATE THE

SEPARATION OF POWERS.

The constitutional purpose of the separation of powers

is to prevent “the encroachment or aggrandizement of one

branch at the expense of the other.” Buckley v. Valeo,

424 U.S. 1, 129 (1976); INS v. Chadha, 462 U.S. 919,

951 (1983); Bowsher v. Synar, 106 S.Ct. 3181, 3189

(1986). Unlike the legislation held unconstitutional in

those cases and in Myers v. United States, 272 U.S. 52

(1926), the Ethics Act transfers no power whatever from

the Executive Branch to Congress, to any branch of Con-

gress, or to any officer subject to any form of congres-

sional control. Congress is given no voice in the appoint-

ment or removai of an Independent Counsel and no con-

trol over a Counsel’s performance of the duties of the

In order to find an aggrandizement of congressional

power, the court below was driven to engage in fanciful

speculation, such as that the ability of members of the

House and Senate Judiciary Committees to request the

Attorney General to appoint an Independent Counsel

“may, like a flicking left jab, confound the Executive

Branch in dealing with Congress.” Slip op. at 67. The

observation is as irrelevant as it is speculative. There is

no enlargement of the power of Congress or of the mem-

bers of any committee. Specific and credible information

tribute a magical power to those words. In realit . responsibiliti

performed by the Interstate Commerce po for ee

in fixing railroad rates, are not significantly different from the

functions performed by, for example, the Secretary of Agriculture

in fixing milk prices, see, ¢.g., United States v. Rock Royal Coopera-

tive, 307 U.S. 533 (1938), or the Secretary of Labor in fixing wages

under the Walsh-Healy. 41 U.S.C. §§ 35-45, and Davis-Bacon Acts.

40 U.S.C. § 276a et seq.

** Section 595(e) provides for such requests and requires the

Attorney General, if he does not request the appointment, to explain

his reason for failing to do so within thirty days.

suggesting criminal activities of high Presidential aides

might equally affect the relative political influence of the

President and Congress even in the absence of the Ethics

Act. As for the political effect of the Independent Coun-

sel mechanism—even if that were relevant—the availabil-

ity of machinery for resolving charges free from sus-

picion of personally or politically motivated Presidential

interference will typically strengthen a President s politi-

cal position, unless he ha; political need to hide what has

occurred.

Nor does the Ethics Act unconstitutionally aggrandize

the Judicial Branch at the expense of the Executive.

Article II, Section 2 specifically authorizes the courts of

law to appoint inferior officers pursuant to Acts of Con-

gress. An Independent Counsel is such an officer. See

Point IIIA, infra. Defining the subject matter jurisdic-

tion of each Independent Counsel in terms of the concrete

charges or cases assigned is a necessary incident of an

appointment ad hoc. The power that Section 596 (b) (2)

confers upon the court to terminate an office of Inde-

pendent Counsel obviously contemplates none of the day-

to-day judicial supervision of the conduct of an investi-

gation conjured up by the court below. Slip op. at 82-83.

Similarly, Section 596(a) (3), which provides for judicial

review of any removal of an Independent Counsel, has

none of the implications supposed by the majority below.

Whatever room there may have been for misunderstand-

ing earlier versions of the Ethies Act, the recent amend-

ments to the Act make plain that the scope of review here

is to be no greater than the wholly familiar judicial

review of discharges of other employees and officials for

“good cause.” H. Conf. Rep. No. 452, 100th Cong., Ist

Sess. 14, 37 (1987).

2° The court's power should be read as a largely formal mecha-

nism for tidying up two situations: (a) cases in which there is no

controversy over whether an Independent Counsel has completed

the assignment, but Counsel has failed to file a report; and (b)

cases in which an Independent Counsel has ceased to pursue the

investigation.

There is no greater force in the suggestion that even

though the Act does not enlarge congressional power, it

diminishes the power of the President to such a degree as

to offend the basic constitutional purpose of preserving

a balance among the three Branches. See Commodities

Futures Trading Comm. v. Schor, 106 S.Ct. 3245, 3260-61

(1986). As Justice O’Connor made plain there, the ques-

tion in such cases is one of degree. As we have already

shown, in appropriate cases Congress may by law charge

inferior officers with independent responsibility for per-

forming specified functions that may be described as

executive, and may also protect that independence by lim-

iting the President’s discretionary power of removal.

And as we have also shown, control over the conduct of

the very narrow range of criminal investigations and

prosecutions covered by the Ethics Act is not a core execu-

tive function.

Viewed in the total context of executive powers and

duties, therefore, cases under the Ethics Act are trifling

in number, involve no core Presidential responsibilities,

and require no resolution of large questions of policy.

Because high officials and public confidence in the integ-

rity of government are involved, the cases have great

dramatic interest and grave national importance. But

the interest and national importance arise out of the very

circumstances that require the mechanism provided by

the Ethics Act. The officials covered by the Act are close

to the President, so close that he is likely to be personally

affected by the outcome, so close that there is an actual

or apparent conflict of interest raising public suspicion

of selfish personal or political interference by the Presi-

dent or Attorney General. The Independent Counsel

mechanism takes no important power from a President

short of the ability to abuse power, and, in the long run,

the mechanism is the best—if not the only—way to pre-

serve the public confidence in the integrity of a President

upon which his proper power and the power of his suc-

cessors depends.

24

Ill. INDEPENDENT COUNSEL ARE “INFERIOR OFFI-

CERS” WHOSE APPOINTMENT ARTICLE II AU-

THORIZES CONGRESS “BY LAW” TO VEST IN A

COURT OF LAW.

Article II, Section 2, clause 2 of the Constitution pro-

vides that “the Congress may by Law vest the Appoint-

ment of such inferior Officers, as they think proper, In

the President alone, in the Courts of Law, or in the Heads

of Departments.”

The court below held that Congress lacked power by

law to vest the appointment of Independent Counsel in a

court, first, because Independent Counsel cannot be “in-

ferior officers,” and second, because in any event the Con-

stitution bars the appointment by a court. We submit

that both rulings are wrong.

A. Independent Counsel Are “Inferior Officers.”

The present case requires no decision of the much-

debated question whether the power to vest the appoint-

ment of “inferior Officers” in the President alone, in the

Courts of Law, or in the Heads of Departments extends

to all offices other than those particularly named in the

Constitution. Even if “inferior Officers” is interpreted

more narrowly, the Appointments Clause permits the

President and Congress, or Congress alone upon overrid-

ing a veto, to provide “by law” for the appointment of

officers with the narrow jurisdiction, relatively brief

tenure, and important but limited independence of an

Independent Counsel.

In the 18th century, as today, the adjective “inferior”

was commonly used to mean “low or lower in station,

rank, degree, or grade” and “of little or less importance,

value, or excellence,” without the slightest implication of

being subjected to some other specific person’s commands.”

3° Eg... Thomas Sheridan, A General Dictionary of the English

Language, Wol. I (1780); Johnson's and Walker's English Dic-

tionaries Combined (1823); Noah Webster, An American Dic-

tionary of the English Language (1830).

25

A dictionary published in Philadelphia in 1785 defines

“inferior” as “lower in place; lower in station or rank of

life; lower in value -or excellence,” and only last as “sub-

ordinate.” ** We commonly apply the adjective in this

sense to kinds of work, positions, and even people, as well

as products and ideas. Whether an office is “inferior”

accordingly depends upon its relative rank or importance

among all offices of the United States, including the scope

of its duties, its duration, the degree of policymaking,

and the relative amounts of independent discretion and

supervisory control.

Judged by these criteria the Independent Counsel are

plainly “inferior Officers.” In rank and general impor-

tance they fall well below the officers named in the Con-

stitution and a wealth of sub-Cabinet and independent

agency positions. The jurisdiction of each Independent

Counsel is limited to the investigation and, if appropri-

ate, prosecution of the alleged criminal] conduct of a sin-

gle person, or growing out of a single set of related activi-

ties. The complete picture is of an officer whose role is

limited to sharply defined bounds set by others, whose

tenure is temporary, who is subject to the web of re-

straints imposed on prosecutors by both the Justice De-

partment and the court, and who may be removed from

office for violation of the Department’s policies or other

malfeasance or misconduct. Nothing in the words of the

Constitution, the records of the Philadelphia Convention

or the subsequent interpretation requires the conclusion

that the appointment of such an officer must, despite leg-

islation to the contrary, be made upon the advice and con-

sent of the Senate.”

%1S. Johnson, A Dictionary of the English Language in Which

the Words Are Deduced From Their Originals (1785).

* In limiting the words “inferior Officers” to those officials who

are always subject in all important respects to some superior’s

direction and control, the court below was greatly influenced by

imaginary examples of abusive legislation, enacted by two-thirds

majorities over the President’s veto, stripping the President of all

normal executive functions. Slip op. at 39-41. Since Gibbons v.

The scant evidence of contemporary understanding con-

firms our interpretation. Discussion at the Constitutional

Convention focused on the question whether the Execu-

tive, the Legislature or the courts should make appoint-

ments. The only relevant colloquy shows that the exact

wording of the second part of the Appointments Clause

was considered a matter of slight importance.* The most

plausible explanation is that the delegates were willing to

allow Congress and the President, or Congress by two-

thirds majorities, the wide power to decide by law which

offices created by law might appropriately be filled by

appointments made without the advice and consent of the

Senate.**

Ogden, 22 U.S. (9 Wheat) 1, 187-89 (1824), the Court has re-

peatedly ruled that the ability to hypothesize abuses cf a power

delegated to Congress 1s not sufficient reason for a narrow inter-

pretation. In this instance there are also constitutional checks.

Legislation of the extreme character imagined by the majority

below would be subject to constitutional attack under other sections

of Article II in accordance with the suggestion in Commodity Fu-

tures Trading Comm. v. Schor, 106 S.Ct. 3245, 3252 (1986). No

such problem is presented by the Ethics Act.

332 The Records of the Federal Convention of 1787 627 (M. Far-

rand ed. 1966).

34 This was the conclusion reached by Justice Story, who lived at

a time much closer to the Framers than today :

The propriety of this discretionary power in congress, to some

extent, cannot well be questioned. If any discretion should be

allowed, its limits could hardly admit of being exactly defined ;

and it might fairly be left to congress to act according to the

lights of experience.

3 Story, Commentaries on the Constitution of the United

States, §§ 1529, 1530 reprinted in 4 The Founders’ Constitution

117, 119 (P. Kurland and R. Lerner, eds. 1987).

As noted above, the original draft of the Judiciary Act of 1789

also supports this understanding, in that it is evidence a number

of the Framers believed that the Appointments Clause gives Con-

gress and the President discretion to vest “by law” the appoint-

ment of both the Attorney General and United States Attorneys

in the courts.

27

In enacting and reenacting the Ethics Act, three Con-

gresses and two Presidents have concluded that an Inde-

pendent Counsel is an Inferior Officer for whose appoint-

ment the advice and consent of the Senate is constitution-

ally required. This Court, in accordance with settled

rules of constitutional interpretation, should give great

weight to those judgments by the other two branches in

exercising the power delegated to them by the Appoint-

ments Clause. That the Court has the final responsibility

for interpreting the Constitution is beyond dispute. When

the question turns solely upon the text, there may be scant

room for deference beyond weighing with respect the

opinion of others. But the settled rule is opposite, when

as here, the case is within the outer textual limits of the

delegation of legislative power to Congress, and the final

judgment must turn upon finding and appraising the

significance of facts, upon the balancing of several fac-

tors, and upon like questions of value and degree. In the

latter cases, the rule since McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316, 423 (1819) has been that the Court

will not upset a rational congressional judgment. Kat-

zenbach v. McClung, 379 U.S. 294, 303-04 (1964); L.

Tribe, American Constitutional Law 303 (2d ed. 1987).

The present case falls in the latter class. In deciding

whether an Independent Counsel is an inferior officer, it

was for Congress to appraise the amount and overall sig-

nificance of the independence it conferred in the context

of such limiting factors as the specificity of the assign-

ment, the brevity of each appointment, the absence of

policy-making power, the obligation to conform to estab-

lished policies of the Department of Justice, and the rela-

tive place of the office in the over-all plan of governmert.

This Court could properly overturn the considered legis-

lative judgment only if the constitutional text contained

an absolute mandate requiring any officer in whom any

significant degree of independence is vested to be ap-

pointed by the President with the advice and consent of

the Senate regardless of any other circumstance. So rigid

a rule would unduly constrict the organization of execu-

tive and administrative functions. It might well over-

burden the Senate. And, as applied to the narrow but

important problem addressed in the Ethies Act, it would

erode confidence in the rule of law by making it constitu-

tionally impossible to provide assurance that the investi-

gation and prosecution of crimes by high officials were

conducted, as in the case of other citizens, by prosecutors

serving only the ideal of impartial justice free from the

dictates or pressures of political or personal self-interest.*°

B. Appointment of Independent Counsel! by a Court of

Law is Authorized by Article II and Congruent

with the Judicial Function under Article III.

The words of the Appointments Clause, given their

plain meaning, expressly authorize Congress to vest the

appointment of any inferior officer in the President alone,

in the courts of law, or in the heads of departments, “as

they think proper.” There is no express limitation. FEx-

Parte Siebold squarely upholds the constitutionality of

legislation vesting in the circuit courts the duty of ap-

pointing supervisors of election whose duties were alleged

to be “entirely executive in character” and “not connected

with the judicial department.” 100 U.S. at 397-99. The

Court did not question this description. The decision

plainly holds that unless barred by some other constitu-

tional provision, Congress has discretion under the Ap-

pointments Clause to choose to vest the appointment of

an inferior officer in a court of law regardless of whether

the duties of the office might be characterized as execu-

tive, or judicial, or connected to the legislative branch.

%5 Under the narrow construction of “inferior Officers” adopted by

the court below, the appointments of Special Watergate Prosecutors

were unconstitutional because made without the advice and consent

of the Senate. United States v. Nixon, 419 U.S. 683 (1974) im-

plicitly upholds the constitutionality of those appointments. The

distinction offered in the majority opinion below, slip op. at 18 n.17,

has the absurd consequence of attributing constitutional significance

to a President’s retention of technical legal power to revoke a de-

partmental regulation in violation of his explicit promises not only

to the person appointed, but to the American people.

In support of his novel ruling that the Appointments

Clause bars legislation vesting in one branch the power

to appoint an individual to a position belonging to another

branch, Judge Silberman quoted only the following sen-

tence:

It is no doubt usual! and proper to vest the appoint-

ment of inferior officers in that department of the

government, executive or judicial, or in that partic-

ular executive department to which the duties

appertain.

Id. at 397.

Judge Silberman omitted the next sentence and the re-

mainder of the key passage from the Siebold opinion:

But there is no absolute requirement to this effect in

the Constitution. . .. [A]s the Constitution stands,

the selection of the appointing power, as between the

functionaries named, is a matter resting in the dis-

cretion of Congress. ... [T]he duty to appoint in-

ferior officers, when required thereto by law, is a con-

stitutional 4uty of the courts; and in the present case

there is no such incongruity in the duty required as

to excuse the courts from its performance, or to

render their acts void. It cannot be affirmed that the

appointment of the officers in question could, with

any greater propriety, and certainly not with equal

regard to convenience, have been assigned to any

other depository of official power capable of exercis-

ing it.

Id. at 397-98.

In speaking of “incongruity” the Court evidently re-

ferred to its earlier decisions holding that Congress may

not call upon Article III courts to perform duties outside

their constitutional functions. The Court then held that

there was no such incongruity in the case before it be-

cause the duty to appoint inferior officers when directed

by law is imposed by the Constitution. The present case

is even clearer because appointing prosecutors has long

been a familiar judicial function. See p. 14, supra.

CONCLUSION

The judgment below should be reversed.

Of Counsel:

Pau. A. FREUND

Langdell 247

Harvard Law School

Cambridge, Massachusetts (2158

(617) 495-3130

Respectfully submitted,

(617) 495-3133

DONALD J. SIMON *

Sonosky, CHAMBERS & SACHSE

1250 Eye Street, N.W.

Suite 1000

Washington, D.C. 20005

(202) 682-0240

Attorneys for Common Cause

* Counsel of Record