Amicus Curiae Brief — Morrison v. Olson

Suprema Court, U.S,

FILED

APR 6 1986

No. 87-1279

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

ALEXIA MORRISON, INDEPENDENT COUNSEL,

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 Ciruit

BRIEF OF MICHAEL K. DEAVER AS

AMICUS CURIAE IN SUPPORT OF THE APPELLEES

HERBERT J. MILLER, JR.

(Counsel Of Record)

RAND» LL J. TURK

STEPHEN L. BRAGA

JULIA E. GUTTMAN

MILLER, CASSIDY, LARROCA &

LEWIN

2555 M Street, N.W., Suite 500

Washington, D.C. 20037

(202) 293-6400

Attorneys For Mr. Deaver

Seen ee

CASILLAS PRESS INC. - 1717 K STREET NW WASHINGTON DC 20036 — 223-1220

s

(1)

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF INTEREST

SUMMARY OF ARGUMENT

ARGUMENT

I. THE ACT DEPRIVES THE PRESIDENT OF

HIS EXCLUSIVE AUTHORITY TO EXERCISE

CORE EXECUTIVE POWER

Il. THE ACT IMPERMISSIBLY INJECTS THE

JUDICIAL BRANCH INTO THE EXERCISE

OF CORE EXECUTIVE POWER

III. THE ACT IMPERMISSIBLY GRANTS SUPER-

VISORY AUTHORITY OVER CORE EXECUTIVE

FUNCTIONS TO THE LEGISLATIVE BRANCH

IV. THE APPOINTMENT OF INDEPENDENT

COUNSEL BY A COURT VIOLATES THE

APPOINTMENTS CLAUSE

A. An Independent Counsel Is Not An Inferior

Officer

B. Appointment of Independent Counsel By A

Court Is Constit~tionally Incongruous

C. Courts Are Functionally Ill-Suited To Appoint

Independent Counsel

V. THE ACT'S REMOVAL PROVISIONS IMPER-

MISSIBLY INTERFERE WITH EXECUTIVE

PREROGATIVES

11

17

18

19

20

23

25

(i)

A. The Statute Unconstitutionally Restricts The

President's Removal Power

B. The Statute Vests The Judicial Branch With

Unprecedented Powers Of Removal Over An

Executive Officer

CONCLUSION

Page

24

26

28

TABLE OF AUTHORITIES

Cases: Page

Bowsher v. Synar,

106 S. Ct. 3181 (1986) _ passim

Buckley v. Valeo,

424 U.S. 1 (1976) 17, 19, 30

Collins Case,

14 Ct. Cl. 569 (1878) 19

Commodity Futures Trading Commission v. Schor,

106 S. Ct. 3245 (1986) .... : 15

Deaver v. Seymour,

C.A. No. 87-0447 (D.D.C. 1987) 23

Dellums v. Smith,

797 F.2d 817 (9th Cir. 1986) 6

Ex Parte Hennen,

38 U.S. (13 Pet.) 225(1839) ....... 21

Ex parte Siebold,

100 U.S. 371 (1880) ......-------::> EE, ee 21

Hobson v. Hansen,

265 F. Supp. 902 (D.D.C. 1977) ....----- . 22

Humphry’'s Executor v. United States,

EEE 27

In re Application of President's Commission on

Organized Crime,

763 F.2d 1191 (11th Cir. 1985) ..... 15

In re Michael K. Deaver,

Division No. 86-2 (D.C. Cir. Indep. Couns.

EE eas «nee

Eee

(iv)

Page

In re Olson,

818 F.2d 34 (D.C. Cir. Indep. Couns. Div. 1987) . 13

In re Sealed Case,

829 F.2d 50 (D.C. Cir. 1987), cert. denied

sub nom. North v. Walsh, 108 S. Ct. 753 (1988) . _ 19, 26

In re Theodore B. Olson,

Division No. 86-1 (D.C. Cir. Indep. Couns. Div. 1986) ...... 13

INS v. Chadha,

462 U.S. 919 (1983) ....----> 17, 18, 29

Kendall v. United States ex rel. Stokes,

37 U.S. (12 Pet.) 524 (1838) ...--. ees 4

Marbury-v. Madison,

5 U.S. (1 Cranch) 137 (1803) ©... 9-52 -s sss 11

McGrain v. Dougherty,

ee et). ee haa 17

Myers v. United States,

CEG CRUD occ recs erenereeseeseeenrrns 3, 4, 25

Nixon v. Administrator of General Services,

peer ty eee aaa 5

Parsons v. United States,

167 U.S. 324 (1897) .. eae gaan ka 20

Sealand Service, Inc. v. ICC,

697 F.2d 1166 (D.C. Cir. 1983) 13

Synar v. United States,

626 F. Supp. 1374 (D.D.C.), aff'd,

106 S. Ct. 3181 (1986) ©... 26

United Public Workers of America v. Mitchell,

oe 11

330 U.S. 75(1947) ...----- sc

(Vv)

Page

United States v. Deaver,

Cr. No. 87-096 (D.D.C.) .........-..-5555. oo...» passim

United States v. Eaton,

169 U.S. 331 (1898) ..... RS Rae eas eee

United States v. Germaine,

ES ee eee ene reer err re 19

United States v. Nixon,

cv eee sees acces ewe ye 26

United States v. Solomon,

216 F. Supp. 835 (S.D.N.Y. 1963) .........-.-. 0-0 5>. 20

United States v. Will,

CN eee eee cee 15, 30

Vermont v. New York,

a. ie ce cette see edasonesresaons 12

Watkins v. United States,

ee rir er er 17

Weisberg v. United States De

partment of Justice,

480 F.2d 11906 (D.C. Cir. 1973)... ce eee

Williams v. United States,

289 U.S. 553 (1933) .... | | ae ae

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

107 S. Ct. 2124(1987) ..... oe eos

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S.579(1952) ............-.-. Bug 12

U.S. Constitution:

Article] ...... “ee eS y -« RAR Ae 2

—

(vi)

Page

eet ee nee re et 2, 3,12

eS nye re ve eS eee eee 2,12, 16

Statutes:

Lt led. Si ana raer ase ie iio aoe 8,14

LL tS rr re or 20

URIS BEE oon occ dee seca cece separ ewedeesenia ss 6

| ib Tee) See Pee ee wee Oe a ees 6,7

; Lie tok) | Re 12, 22

PBUG.C.SGOBE) .. 6.6 cece eee enter ne ecees 12

LOS Cod |)” 4

ce EE TOCE CTT ORP ERT ET eee 12

i Oe” Oo Dai lacie ikea en 28

i os caceis este sss eae 12, 22, 26

“98 US.C.§597(a) ae NO i ene 4

Other Authorities:

1 Annals of Cong. 499 ........ DLs Wek kaw weicwaiine. td 24

Black’s Law Dictionary, (4thed. 1968) ........-.-... 5055) 19

123 Cong. Rec. 21002 (1977) (written statement

of John Harmon) ...... 6.0... eect cere renee 18

Currie, The Distribution of Powers After Bowsher

ee ee ee eee . 21, 25

(vil)

Page

Department of Justice Manual,

Vol. 8, §§9-27.200-27.270 (June 1987) ........-.--. 5 ee 7

1 M. Farrand, The Records of the Federal Convention of

ier ie ae a Se eee ees eee i)

The Federalist No. 38 (J. Madison)

IC, Rossiter od. 1061)... 6... eee eee renee i)

The Federalist No. 48 (J. Madison)

C. Monsiber od. 1GBE) . 2... ccc eww e eens )

The Federalist No. 51 (J. Madison)

(C. Rossiter ed. 1961) ...... 0... 6c eee ee _. 10,19, 20

The Federalist No. 69 (A. Hamilton)

(C. Rossiter ed. 1961) ..... 0.6... cee ccs i)

The Federalist No. 70 (A. Hamilton)

(C, Rossiter ed. 1061) ..........- 0. eee eee eee a,

The Federalist No. 72 (A. Hamilton)

(C. Rossiter ed. 1961) ...........-. 0 cee cee eee eee 20

The Federalist No. 77 (A. Hamilton)

(C. Rossiter ed. 1961) ..........-- 06 cee cee eee eee i)

H.R. Conf. Rep. No. 95-1756, 95th Cong., 2d Sess.

78 (1978), reprinted in [1978] U.S. Code Cong.

ng, auc deeaseccnewesseeeeues 17

The Jewels of the Princess Orange,

2 Op. Atty. Gen. 482(1831) ...-. 6-6. eee 4, 24, 25

L. Tribe, American Constitutional Law(1978) .......... ‘7

Alexia Morrison: Taking the Heat

Legal Times, June 1, 1987... .. 6.6.0 13

(vill)

Page

Miller, Government Lawyers’ Ethics In A System

Of Checks And Balances, 54 U. Chic. L. Rev.

SID, . gc cet nese soe sense reserves eceweansesers 11

Miller, Independent Agencies,

1986 Sup. Ct. Rev.41 .............025-2 sere ... 4%

S. Rep. No. 95-170, 95th Cong., 1st Sess. 56 (1977),

reprinted in [1978] U.S. Code Cong. & Admin.

EN rer rrr rrr rte 12,17

U.S. House of Representatives, Committee on the

Judiciary, Subcommittee on Administrative Law

and Governmental Relations, Supplemental State

13

ment of George E.MacKinnon.........-) -- +s)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87—1279

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 MICHAEL K. DEAVER AS

AMICUS CURIAE IN SUPPORT OF THE APPELLEES

STATEMENT OF INTEREST

Amicus curiae Michael K. Deaver (‘‘Mr. Deaver’’) is the very

first individual to be indicted, tried and convicted as a result of pro-

ceedings conducted by an Independent Counsel. Both before and

after his indictment, Mr. Deaver brought legal challenges to the

power of the Independent Counsel to proceed against him, raising

as grounds for these challenges the same attacks on the constitu-

tionality of the statute that are at issue in this case. Although the

district court denied these challenges, the issues they raised have

been fully preserved for appellate review. The resolution of these

issues here, therefore, may have a direct impact on the status of

Mr. Deaver’s case.

In addition, the Deaver case demonstrates all too well the dange.

of unleashing upon an individual citizen the unaccountable exercise

of power by an independent counsel appointed by the court of ap-

tN

peals in the jurisdiction in which that individual ultimately is brought

to trial. Public figures may be fair game in the press and before con-

gressional committees, but they are entitled under the Constitu-

tion to criminal process free from the taint of politics, conflicts of

interest by those who prosecute them, and the appearance of par-

tiality by the courts before which they are tried. Contrary to the

assertions of amicus curiae Whitney North Seymour, Jr., Mr. Deaver

enjoyed none of these hal!marks of our criminal justice system under

the dual system of justice created by the Act.

SUMMARY OF ARGUMENT

The independent counsel provisions of the Ethics in Government

Act (‘‘the Act’’) violate Articles I, II and III of the Constitution and

the principles of separation cf powers those Articles incorporate,

both by distorting the balance of power among the several! bran-

ches, and by inviting abuses of our nation’s prosecutorial power in

individual cases brought under the Aci.

The investigation and prosecution of criminal offenses are func-

tions at the core of the executive power, which Article Il of the

Constitution delegates exclusively to the President. The Act, how-

ever, divests the President and his agents of their power to per-

form or supervise the performance of these functions, while

simultaneously granting portions of that power to the Special Divi-

sion of the Court of Appeals and to the Congress, and transferring

the remainder to a person unaccountable to any of the coordinate

branches, in violation of Articles I, II and III of the Constitution.

The Act further distorts the constitutional system of separated

powers by 1) providing for judicial appointment of independent

counsel; 2) preventing the President from removing independent

counsel at will; and 3) granting the Special Division of the Court

of Appeals independent authority to terminate an independent

counsel's office.

Together, these features of the statute reflect a conscious design

to usurp core executive power from the Executive Branch and to

_

transfer it to an individual who is accountable only to the Judicial

and Legislative branches, or to no one at all. Such a reallocation

of constitutional authority by Congress, no matter how assertedly

expedient a response to the purported ills of Watergate, is imper-

missible under the form of government established by our Constitu-

tion. In its recent operation, moreover, the Act has proved to be

a ‘‘cure’’ far more dangerous to the public interest and the rights

of individual citizens than the supposed ills it was intended to remedy,

underscoring once again the need for this Court to exercise its con-

stitutional obligation to restore and preserve the proper balance of

power among the coordinate branches, and ‘‘to preclude the exer-

cise of arbitrary power.’’ Myers v. United States, 272 U.S. 52, 293

(1926) (Brandeis, J., dissenting).

ARGUMENT

1. THE ACT DEPRIVES THE PRESIDENT OF HIS

EXCLUSIVE AUTHORITY TO EXERCISE CORE

EXECUTIVE POWER.

The Framers’ decision to vest in a single official the full power

and duty to see to the execution of the laws reflects a conscious

preference for a unitary and energetic executive with the authority

necessary to ensure ‘‘steady administration of the laws.’’ The

Federalist No. 70, at 423 (A. Hamilton) (C. Rossiter ed. 1961). The

executive authority conferred on the President by Article II, \ 3,

is the power ‘‘to implement the legislative mandate.'’ Bowsher v.

Synar, 106 S. Ct. 3181, 3192 (1986). Central to this power is the

authority to prosecute civil and criminal litigation. The centrality

of these law enforcement and prosecutorial functions to the task

of executing the laws, together with the explicit textual commit-

ment of that task to a single individual, the President, necessarily

implies that the President must have the power to direct those of-

ficers who actually carry out the enforcement of the laws.

Early in our Nation's history, Attorney General (later Chief Justice)

Roger B. Taney reached precisely this conclusion in his opinion

regarding The Jewels of the Princess of Orange, 2 Op. Atty. Gen.

482 (1831). The issue in Jewels was whether the President could

order a United States district attorney to halt a prosecution. Taney

answered in the affirmative, reasoning that the President's authority

to direct a district attorney in the performance of his duties ‘‘derived

from the general supervisory powers which belong to his office, and

which are necessary to enable him to perform the duty imposed

upon him, of seeing that the law is faithfully executed.’’ /d. at 488.

Chief Justice Taft reiterated Taney’s conclusion a century later in

Myers v. United States, 272 U.S. at 135:

The ordinary duties of officers prescribed by statute come

under the general administrative control of the President

by virtue of the general grant to him of the executive

power, and he may properly supervise and guide their

construction of the statutes under which they act in order

to secure that unitary and uniform execution of the laws

which article 2 of the Constitution evidently contemplated

in vesting general executive power in the President

alone. '

The Ethics in Government Act forecloses direction of an indepen-

dent counsel by the President and his agents by establishing that

an independent counsel has ‘‘independent authority’ to carry out

his duties, 28 U.S.C. § 594(a), and that the President's agents are

to have no role in performing the tasks delegated to an indepen-

dent counsel save at the independent counsel's request. 28 U.S.C.

§ 597(a). By depriving the President of his essential authority to

direct one who exercises core executive powers, the statute strips

the President of those powers, and thus ‘‘prevents the Executive

\Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838),

is not to the contrary. Kendall holds only that Congress may impose

ministerial duties on executive officers, and that the President may not

order such officers to defy the law. The case does not contest that in per-

forming their discretionary duties under the law such officers are subject

to the President's supervision. See Miller, /ndependent Agencies, 1986 Sup.

Ct. Rev. 41, 59 n.65.

Branch from accomplishing its constitutionally assigned functions.”’

Nixon v. Administrator of General Services, 433 U.S. 425, 443

(1977).

The denial of Presidential authority not only deprives the Executive

Branch of its essential prosecutorial discretion, but also interferes

with other areas of Presidential authority, such as foreign affairs.

The consequences of the absence of Executive Branch supervision

in this area were illustrated on several occasions in the Deaver case.

For example, Amicus Cunae Seymour, provoked an international

incident last spring by sending FBI agents to the Canadian Embassy,

against the wishes of the State Department and in violation of ac-

cepted principles of diplomatic immunity, to attempt to serve sub-

poenas on the Ambassador of Canada and his wife. Mr. Seymour's

efforts were formally opposed by the State Department and the

Department of Justice, and eventually were rebuffed by the District

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

22, 1987), but not before Mr. Seymour had publicly accused the

Canadian Government of ‘‘duplicity’’ and ‘‘obstructing justice,"’ id.,

May 27, 1987 Declaration of Whitney North Seymour, Jr., at 5,

8, and not before he had charged Abraham D. Sofaer, Legal Ad-

viser of the State Department, with making ‘‘inaccurate’’ and

‘‘misleading’’ statements and with not being ‘‘impartial.’’ /d., June

10, 1987 Declaration of Whitney North Seymour, Jr., at 1, 2, 7.

Mr. Seymour then sparked yet another diplomatic crisis with

Canada immediately before trial. Frustrated in his attempt to serve

the Canadian ambassador with a tria! subpoena, he sent a letter to

the Canadian Government threatening to introduce at trial evidence

unrelated to the subject matter of the Ambassador's testimony, but

that supposedly related to unlawful actions taken by Mr. Deaver

on Canada’s behalf, if Canada did not waive its diplomatic immunity

and produce its Ambassador as a prosecution witness. See id., Sup-

plemental Statement of Interest of the United States (Oct. 15, 1987).

Not surprisingly, this tactic, too, provoked a diplomatic protest by

the Canadian Government and again required intervention by the

State Department and the Department of Justice.? Finally, Mr. Sey-

mour held a press conference on the Courthouse steps following

the trial and blamed the Canadian Government for Mr. Deaver’s

acquittal on the perjury charges relating to acid rain.* See id., Defen-

dant’s Supplemental Memorandum In Support of His Previously Filed

Motion to Dismiss On Constitutional Grounds (January 5, 1988).

Mr. Seymour's intemperate public attacks on the Canadian Govern-

ment highlight the problems of granting prosecutorial powers to an

unaccountable individual outside the Executive Branch.

Appellant argues that the Act’s prohibition against the President

having any supervisory role with respect to an independent counsel

is allayed by the statute’s grant to the Attorney General of unre-

viewable authority to determine whether the independent counsel

process shall be initiated. See App. Br. at 18-19. But in view of its

severe circumscription, this so-called ‘‘authority’’ is no authority

at all. The Act plainly is designed to curtail the Attorney General's

authority and discretion not only by commanding him to conduct

a preliminary investigation under specified circumstances, but also

by requiring him to request appointment of an independent counsel

1) unless that investigation reveals no reasonable grounds for fur-

ther investigation, or 2) if the investigation is not completed within

ninety days. 28 U.S.C. §§ 591, 592; see also Dellums v. Smith, 797

2Mr. Seymour challenged this intervention in part on the ground that

the Executive Branch had no jurisdiction to interfere with his investiga-

tion and prosecution of Mr. Deaver. See United States v. Deaver, Indepen-

dent Counsel's Response To ‘‘Supplemental Statement Of Interest Of The

United States’’ (October 16, 1987).

3This was a hollow excuse for the acquittal ing smuch as Mr. Seymour

had earlier withdrawn from the jury’s consideration the few portions of

this Count which related to the Ambassador. Mr. Seymour also used the

occasion of his post-trial courthouse-steps press conference to publicly

attack the integrity of the Reagan Administration generally, and to de-

nounce Secretary of State Schultz for having expressed, during his

testimony at trial, a favorable opinion of Mr. Deaver. See United States

v. Deaver, Defendant's Supplemental Memorandum In Support of His

Previously-Filed Motion to Dismiss on Constitutional Grounds (January

5, 1988).

F.2d 817, 823 (9th Cir. 1986). Assuming the Attorney General obeys

the law, these directives provide insufficient scope for the Executive

Branch’s exercise of prosecutorial discretion, which encompasses

far more than the power merely to determine whether ‘further in-

vestigation’’ is warranted:

{I}n the first instance an Attorney General in myriad situa-

tions must exercise the discretion conferred upon him

by law. He must evaluate the evidence necessary to an

informed judgment. He must decide whether to prosecute

or not. He must decide whom to prosecute. He must

decide when to prosecute. Functions in this area belong

to the Executive under the Constitution, Article II, Sec-

tions l and3....

Weisberg v. United States Department of Justice, 489 F.2d 1195, 1201

(D.C. Cir. 1973) (en banc). In leaving only a fraction of prosecutorial

discretion with the Attorney General, effectively dictating how that

fraction is to be exercised, and irrevocably committing the remainder

to an officer outside the President's control, the statute violates

the cardinal principle of unified executive control over the enforce-

ment of the laws.

Significantly, amicus cunae Seymour argues that the Act leaves

virtually all of the Executive Branch’s prosecutorial discretion with

the Attorney General. Mr. Seymour bases this argument on his view

that the Attorney General's preliminary finding that there exist rea-

sonable grounds to believe that further investigation or prosecu-

tion is warranted, see 28 U.S.C. § 592(c)(1), amounts to an exer-

cise of prosecutorial discretion by the Executive Branch with respect

to the ultimate decision to prosecute. Therefore, according to Mr.

Seymour, an independent counsel's decisions to obtain an indict-

ment and prosecute are but ‘‘ministerial’’ acts. Seymour Br. at

14-17. This argument, however, not only ignores the range and

breadth of issues and concerns that inform a constitutionally-

empowered prosecutor's ultimate decision whether to prosecute

at the conclusion of a full investigation, see Department of Justice

Manual, Vol. 8, 9-27.200-27.270 (June 1987), but it also fails to

explain how the Attorney General could have made a decision to

prosecute Mr. Deaver for false statements before a grand jury that

had not even been convened as of the date of the Attorney Generai’s

preliminary investigation. Indeed, to equate the Attorney General's

preliminary finding with an ultimate decision to prosecute, as does

Mr. Seymour, is considerably more alarming even than the much-

debated statement by Independent Counsel Lawrence E. Walsh that

he felt obligated to prosecute in the Iran-Contra investigation if his

investigation revealed probable cause to believe that a crime had

been committed.

Under Mr. Seymour's theory, the target of an independent coun-

sel investigation must be prosecuted once the Attorney General finds

that there are reasonable grounds to believe that further investiga-

tion or prosecution is warranted, so long as there are any facts con-

cerning any matter that will support any theory of prosecution. While

this interpretation of the Act may explain Mr. Seymour's decision

to obtain an indictment charging Mr. Deaver with perjury after be-

ing appointed to investigate allegations of violations of 18 U.S.C.

§ 207, it does obvious violence both to the Department of Justice

guidelines governing the exercise of prosecutonal discretion, as well

as to the due process nghts of the subjects and targets of these

investigations.‘ It also points up once more the very real dangers

‘For example, Mr. Seymour charged Mr. Deaver with five counts of

perjury, three of which contained multiple allegations of false testimony.

One count, in fact, contained no less than 20 separate allegedly false

statements. See Umited States v. Deaver, Indictment (March 18, 1987).

Even more disconcerting, perhaps, another count charged Mr. Deaver

with perjury based upon a perjury trap set by Mr. Seymour himself.

After advising Mr. Deaver that the next question he would be asked was

he had ever contacted anyone in the government on behalf of TWA, a

client Mr. Deaver had not been advised would be a subject of inquiry before

the grand jury. Mr. Deaver said he did not recall whether he had or not,

and Mr. Seymour moved on. Mr. Seymour did not mention that weeks

earlier he had received a tip from a reliable source that Mr. Deaver had

contacted then-Secretary of Transportation Elizabeth Dole on behalf of

TWA. Nor did he attempt to refresh Mr. Deaver’s recollection before

the grand jury concerning this alleged contact; he merely turned to other

of entrusting the nation’s prosecutorial power to an individual who

is not a part of Executive Branch. Armed with such a notion of his

mandate, an independent counsel could, as Mr. Seymour plainly did,

embark on a mission to return an indictment against the target of

his investigation no matter how long it took, no matter what the

cost to the government or to the target, no matter how inconsis-

tent it might be with Justice Department guidelines, and no matter

how far afield it was from the initial allegations assigned to him for

investigation and possible prosecution.

The potential for this kind of abuse arising from the unaccoun-

table exercise of power was of grave concern to the Founding

Fathirs.® As James Madison observed in his Federalist Paper No.

51:

matters. See id., Motion of Defendant Michael K. Deaver To Dismiss

Count Three On Grounds Revealed By Newly Discovered Evidence (May

8, 1987).

‘In laying the framework for a new government, the delegates to the

constitutional convention were conscious of the principle that the vesting

of executive power in an unaccountable individual was an invitation to tyran-

ny. Accordingly, they crafted an executive branch in which the president

was to be elected to serve for a limited four year term, and they provided

procedures for impeachment and removal from office. See Bowsher v.

Synar, 106 S. Ct. at 3186. The drafters, however, specifically rejected

proposals to check executive power by dividing that power among several

magistrates or by creating a council of revision. See 1 M. Farrand, Records

of the Federal Convention (1966) at 93-114 (debate of June 4, 1787); see

also The Federalist No. 38, at 236-37 (J. Madison) (C. Rossiter ed. 1961);

id. No. 48, at 312 J. Madison); id. No. 69, at 417 (A. Hamilton); id. No.

70 at 424-31 (A. Hamilton); id. No. 77, at 461-63 (A. Hamilton). These

proposals were rejected not only because a single magistrate would be

more efficient, but also because ‘‘Unity in the Executive ... would be the

best safeguard against tyranny."’ 1 M. Farrand at 66, 74 (remarks of Mr.

Wilson); see also The Federalist No. 70, at 427-30 (A. Hamilton). The crea-

tion of an independent counsel possessing significant executive powers

therefore violates two core principles underlying Article II of the Con-

stitution: first, that the possessor of executive power should be accoun-

table to the people, and second, that competing sources of executive

authority lead to tyranny. Unlike any other person exercising core ex-

ecutive power in our government, the independent counsel is accountable

only to himself.

10

If men were angels, no government would be necessary.

If angels were to govern men, neither external nor in-

ternal controls on government would be necessary. In

framing a government which is to be administered by men

over men, the great difficulty lies in this: you must first

enable the government to control the governed; and in

the next place oblige it to control itself. A dependence

on the people is, no doubt, the primary control on the

government; but experience has taught mankind the

necessity of auxiliary precautions.

The Federalist No. 51, at 322 (J. Madison). Significantly, Mr. Sey-

mour makes much in his brief of the service that he, as an incepen-

dent counsel, purportedly has done in the public interest in pro-

secuting Mr. Deaver, and of the confidence expressed by the public

in the results his office achieved. See, e.g., Seymour Br. at 9, 11,

13. But such attempts to bootstrap assertions regarding the necessi-

ty and integrity of the office of independent counsel by way of

talismanic invocations of an unanchored notion of the public interest

are unavailing. In our democratic government of checks and balances,

where numerous competing interests constantly vie for supremacy,

the public interest can only truly be ascertained and served through

the workings of the constitutional processes of that government.

As one commentator has observed:

The Framers created three departments of government,

according to Madison, in order to avoid the accumula-

tion of all powers in the same hands, a condition that “‘may

justly be pronounced the very definition of tyranny.’

Mere ‘‘parchment barriers’’ between the branches would

not prevent tyranny, because power is of an ‘‘encroaching

nature.’’ To prevent the gradual concentration of power

in a single department, therefore, it was necessary to

give to ‘‘those who administer each department the

necessary constitutional means and personal motives to

resist encroachments of the others.’’ Ambition would

counteract ambition, and the government would gain

needed stability through a dynamic tension of opposing

forces.

Miller, Government Lawyers’ "thics In A System Of Checks And

Balances, 54 U. Chic. L. Rev. 1293, 1296 (1987) (footnotes omit-

ted). There is no surer anchor for the floating concept of the pubiic

interest than the accountable exercise of power pursuant to the

doctrine of the separation of powers. Cut loose from the constitu-

tional moorings of checks and balances, an independent counsel can

only disserve the public interest.

We reinforce this argument in the succeeding sections by demon-

strating that, to the extent independent counsel are accountable at

all, they are beholden only to Congress and the Courts, and thus

exercise core executive power in violation of well-settled principles

of separation of powers. And to the extent, as appellant and others

contend, independent counsel are answerable to neither of these

coordinate branches, they exercise plenary power unhitched from

the structural separation-of-powers principles devised by the Fra-

mers to ensure against tyranny and the arbitrary exercise of power.

Il. THE ACT IMPERMISSIBLY INJECTS THE JUDI-

CIAL BRANCH INTO THE EXERCISE OF CORE

EXECUTIVE POWER.

The judiciary’s supreme authority ‘‘to say what the law is,’’ Mar-

bury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), is narrowly

circumscribed by the command that it be exercised only in the con-

text of justiciable cases or controversies. As this Court explained

in United Public Workers of America v. Mitchell, 330 U.S. 75, 90

(1947):

The Constitution allots the nation’s judicial power to the

federal courts. Unless these courts respect the limits of

that uniquesauthority, they intrude upon powers vested

in the legislAtive or executive branches. Judicial adherence

| tq the-doctrine of the separation of powers preserves the

/

12

courts for the decision of issues, between litigants, capa-

ble of effective determination.

The case-or-controversy requirement of Article III necessarily ex-

cludes any general judicial authority to supervise the execution of

the laws. See, e.g., Vermont v. New York, 417 U.S. 270, 277 (1974);

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952)

(Frankfurter, J. concurring).

The Act transgresses this limitation by assigning to a Special Divi-

sion of the Court of Appeals — in the complete absence of a case

or controversy — the power to assign an independent counsel his

duties through the nonjudicial acts of defining or redefining his

jurisdiction, or of assigning him new matters to investigate, 28

U.S.C. §§ 593(b) and (c); to demand from an independent counsel

an accounting of his conduct in office, 28 U.S.C. §595(b); and to

determine for itself whether he has completed his assigned duties.

28 U.S.C. § 596(b)(2). The essentially supervisory and executive

nature of this authority, as well as its centrality to the legislative

scheme, were underscored in the Senate Committee Report on the

bill that became the Ethics in Government Act:

[A] very important part of the responsibility of the divi-

sion of the court is to define the prosecutorial jurisdic-

tion of the special prosecutor. The prosecutorial jurisdic-

tion of the special prosecutor is one of the most impor-

tant devices for the control of the special prosecutor and

the accountability of such a special prosecutor.

S. Rep. No. 95-170, 95th Cong., Ist Sess. 56 (1977), reprinted in

[1978] U.S. Code Cong. & Admin. News 4216, 4272 (emphasis sup-

plied). Vesting such power to control executive action in a court

clearly violates the principles of separation of powers enshrined in

both Article II and Article III of the Constitution.

In addition, the Special Division has conceived its authority to ex-

tend to the issuance of directives purporting, inter alia, to (1) resolve

jurisdictional arguments between independent counsel and the Justice

Department, see Jn re Olson, 818 F.2d 34 (D.C. Cir. Indep. Couns.

13

Div. 1987); (2) decide constitutional issues not raised by any par-

ties and over which the Special Division has no jurisdiction, see id.:

and (3) determine the employment classification of independent

counsel and their associates, and exempt them from the operation

of federal conflict-of-interest laws, see In re Michael K. Deaver,

Designation of Special Government Employees, Division No. 86-2 (July

2, 1986); In re Theodore B. Olson, Division No. 86-1 (June 18, 1986).

The latter orders even go so far as to establish ‘‘the Office of In-

dependent Counsel as a separate special agency’’ — a stunning usur-

pation of non-judicial authority. The issuance of these orders, as

well as the reliance of various independent counsel upon the orders

in their disputes with the Justice Department,’ demonstrates the

reality of the extrajudicial power conferred upon the Special Divi-

sion by the Act.®

® Cf. Sealand Service, Inc. v. ICC, 697 F.2d 1166, 1168 (D.C. Cir. 1983)

(‘‘It is the responsibility of Congress and the Executive Branch, not the

courts, to apportion authority between a cabinet officer and an indepen-

dent agency such as the ICC.’’). Although the Act as recently amended

contains its own legislatively-devised exemptions for independent counsel

from federal conflict -of-interest statutes, there is no reason to be sanguine

that the Special Division will not reach out and decide other equally non-

judicial issues in the future in its effort te administer the Act and super-

vise the exercise of executive power.

71See Alexia Mornson: Taking the Heat, Legal Times, June 1, 1987, at

8, col. 2-3 (‘‘Morrison also points out that she and Seymour were granted

exemptions to the conflict laws from the special federal court panel that

oversees the independent counsel probes’’).

®The processes through which the Special Division exerts its authority

are also revealing of the relationship between independent counsel and

the court. According to a statement submitted to a subcommittee of the

House Judiciary Committee by Presiding Judge MacKinnon, the orders

purperting to exempt independent counsel from conflict of interest laws

were issued after Independent Counsels Seymour and Morrison together

visited Judge MacKinnon in his chambers and asked that the order be

entered. Judge MacKinnon concluded that the orders comported with his

understanding of the statute and issued one of them that same day.

(Whether he consulted the other members of the ‘“‘court’’ is unclear.)

See U.S. House of Representatives, Committee on the Judiciary, Subcom-

mittee on Administrative Law and Governmental Relations, Supplemen-

tal Statement of George E. MacKinnon, at 5-7.

14

Once again, the Deaver case provides a telling illustration of the

Special Division’s assumption of supervisory authority under the

Act. When Mr. Seymour was appointed to investigate Mr. Deaver,

his jurisdiction was defined to encompass three specific allegations

of possible violations of 18 U.S.C. § 207 by Mr. Deaver in connec-

tion with his representation of two clients, as well as matters

‘‘related’’ to those allegations. See Jn re Michael K. Deaver, Order

Appointing Independent Counsel, Division No. 86-2 (May 29, 1986).

Significantly , although other allegations of possible section 207 viola-

tions were submitted to the Justice Department for investigation,

they were not included in Mr. Seymour’s jurisdiction at the con-

clusion of the Attorney General's preliminary investigation. Never-

theless, Mr. Seymour proceeded to subpoena every document ever

generated by Mr. Deaver’s firm, as well as tens of thousands of

other documents from throughout the government and from Mr.

Deaver’s clients as part of an investigation of all of Mr. Deaver’s

business activities on behalf of virtually all of his clients — including

separate inquiries into the legality of all of the business activities

of all of Mr. Deaver’s associates on behalf of these clients.°

Seven months into his investigation, however, Mr. Seymour turn-

ed his attention to other possible prosecution theories. including

whether false statements had been made before the Deaver grand

jury; whether false statements had been made at a congressional

subcommittee hearing that predated Mr. Seymour’s appointment;

and whether Mr. Deaver had conspired with any of his associates

to violate any laws. Challenged by Mr. Deaver as to his jurisdiction to

investigate these new matters, Mr. Seymour turned for guidance

not to the Justice Department, as appellant Morrison properly did

in the Olson investigation, but to the Special Division, submitting

a secret petition for ‘‘clarification’’ of his jurisdiction. The Special

Division obliged with an order granting Mr. Seymour jurisdiction

to proceed against Mr. Deaver on perjury and false statement

%In addition to subpoenaing documents, Mr. Seymour orde?ed approx-

imately 300 FBI field interviews and called between 110 and 150 individuals

before the grand jury.

15

charges, as well as to investigate any associate or employee of Mr.

Deaver and any other person who may have conspired with Mr.

Deaver to violate any law. See In re Michael K. Deaver, Supplemental

Order, Division No. 86-2-(Dec. 16, 1986).!°

Ironically, the Special Division’s Order had the unintended effect

of eviscerating the argument, advanced here by appellant and others,

that under the Division's prior decision in Jn re Olson, the Attorney

General retains an ongoing, supervisory check on an independent

counsel's jurisdiction. For under the Division’s ruling in t... Deaver

case, Jn re Olson is now a nullity for all practical purposes: all an

independent counsel must do to expand his or her jurisdiction is

bypass the Attorsiey General's office altogether, and proceed by

way of secret ex parte application to the Special Division. The Divi-

sion’s Order in the Deaver case also reveals the nature of the

authority wielded by the court under the Act. Supervising executive

officers in the performance of their duties by responding to their

ex parte requests for guidance or expanded authority is in no sense

the exercise of a judicial function; it is, pure and simple, an assump-

tion of executive power.

Finally, the exercise of executive power by the courts also raises

serious due process concerns resulting from its tendency to erode

— whether as matter of fact or only as a matter of public percep-

tion — the objectivity and independence of the judiciary. See, e.g.,

Commodity Futures Trading Commission v. Schor, 106 S.Ct. 3245.

3256 (1986); United States v. Will, 449 U.S. 200, 218 (1980): In

re Application of President's Commission on Organized Crime, 763

F.2d 1191, 1197 (11th Cir. 1985). In the Deaver case, this problem

was particularly acute. The indictment Mr. Seymour obtained ex-

pressly stated that Mr. Seymour had been appointed independent

counsel in the case by the Special Division of the Court of Appeals

As a result, Mr. Seymour eventually advised seven other individuals

in addition to Mr. Deaver that they were either subjects or targets of his

investigation and therefore risked prosecution by his office, despite the

absence of any authority from the Justice Department or the Attorney

General's office to enforce such threats.

16

for the District of Columbia Circuit. See United States v. Deaver,

Indictment (March 18, 1987). The district court before which the

Deaver case was tried, moreover is in the same jurisdiction as the

Special Division which appointed Mr. Seymour, and which later

issued a decision upholding the constitutionality of the Act. See Jn

re Olson. Thus, even though the Special Division had no jurisdic-

tion to decide the constitutional issue, the district court felt bound

to follow that decision, and expressly relied upon it in its memoran-

dum order denying Mr. Deaver’s post-indictment challenge to the

constitutionality of the Act. See United States v. Deaver, Mem.

Order (May 13, 1987). In addition, the district court understandably

was reluctant to overrule the Special Division's selection of Mr.

Seymour as independent counsel. Ac-ordingly, it not only denied

without explanation Mr. Deaver’s motion under Young v. United

States ex rel. Vuitton et Fils S.A., 107 S. Ct. 2124 (1987), to en-

sure that neither Mr. Seymour nor any of his associate indepen-

dent counsel had a conflict of interest in the case, see United States

v. Deaver, Order (October 5, 1987). but it also denied without a

hearing Mr. Deaver’s subsequent motion to disqualify Mr. Seymour

on the grounds of his personal and political conflict of interest in

the case. See text infra at p. 23. The special relationship between

an independent counsel and the Special Division of the court,

together with the district court's natural deference to the court of

appeals, call into question the appearance of fairness, objectivity

and impartiality otherwise attending court rulings. Indeed, in view

of the apparent conflict between the district court's obligation to

ensure Mr. Deaver a fair trial, and its conceded deference to the

Special Division that hand-picked the prosecutor and then guided

and endorsed his investigation, none of the rulings entered by the

district court can be considered free of the taint of at least an ap-

pearance of partiality. Due process and Article III of the Constitu-

tion, however, require more than that in a criminal case in which

a man’s liberty is at stake.

17

Ill. THE ACT IMPERMISSIBLY GRANTS SUPER-

VISORY AUTHORITY OVER EXECUTIVE FUNC-

TIONS TO THE LEGISLATIVE BRANCH.

The Constitution for the most part limits Congress to a legislative

role. With a few specific exceptions, the only authority granted to

Congress by the Constitution is the authority to legislate upon

specific subjects. See generally INS v. Chadha, 462 U.S. 919 (1983).

In the execution of the laws enacted through this process, Con-

gress has no part: ‘“The Constitution does not contemplate an ac-

tive role for Congress in the supervision of officers charged with the

execution of the laws it enacts.’’ Bowsher v. Synar, 106 S. Ct. at

3187. ‘‘The structure of the Constitution does not permit Congress

to execute the laws; it follows that Congress cannot grant to an

officer under its control what it does not possess."’ Jd. at 3188.

The Act’s provisions granting the House and Senate Judiciary

Committees a role in the initiation of the independent counsel pro-

cess, as well as requiring independent counsel to report to Con-

gress and to .voperate with congressional oversight, impermissibly

assign an executive role to Congress. While it is true that Congress

may exercise oversight and investigative functions where these are

related to its legislative role, see, e.g., McGrain v. Dougherty, 273

U.S. 135 (1927), Congress is not entitled to exceed its legislative

limits. See Buckley v. Valeo, 424 U.S. 1, 138 (1976); Watkins v.

United States, 354 U.S. 178 (1957). Here, the provisions that make

an independent counsel answerable to Congress clearly expand Con-

gress’s role beyond that incidental to its legislative function. For

as the committee reports indicate, the purpose of the provisions

requiring independent counsel to report to Congress and to

‘‘cooperate’’ with congressional oversight was not to aid Congress

in its legislative tasks, but to ensure the ‘‘accountability’’ of indepen-

dent counsel and to prevent ‘‘the possibility of a runaway [special]

prosecutor.'’ S. Rep. No. 95-170, 95th Cong., Ist Sess. 70 (1977),

reprinted in [1978] U.S. Code Cong. & Admin. News 4216, 4286;

H.R. Conf. Rep. No. 95-1756, 95th Cong., 2d Sess. 78 (1978),

vepnnted in [1978] U.S. Code Cong. & Admin. News 4381, 4394.!!

Such a supervisory role for Congress in the execution of the laws

is expressly forbidden by Bowsher v. Synar, 106 S. Ct. at 31°7-3189,

and INS v. Chadha, 462 U.S. at 954-955.

In the Deaver case, Congress in fact actively directed the course

of Mr. Seymour’ s investigation and prosecution. Two of the charges

on which Mr. Deaver stood trial stemmed directly from the ‘‘refer-

ral of perjury charges to Mr. Seymour by Representative John

D. Dingell and his Oversight and Investigations Subcommittee of

the House Committee on Energy and Commerce. Despite the

absence of any authonzation in the Act for such congressional referral

of charges — or for bypassing the Attorney General; and despite

the fact that these charges related to events occuring pnor to Mr.

Seymour's appointment — and thus in no way cotild be deemed to

have grown out of Mr. Seymour’s investigation of alleged substan-

tive Ethics Act violations — Mr. Seymour unhesitatingly assumed

responsibility for investigating the allegations, and eventually bas-

ed two of the five perjury counts in the indictment on Mr. Deaver's

testimony before the Dingell Subcommittee. This incident reveals

only too well the reality of congressional aggrandizement under the

Act.

IV. THE APPOINTMENT OF INDEPENDENT COUN-

SEL BY A COURT VIOLATES THE APPOINT-

MENTS CLAUSE.

The appointment of independent counsel by the Special Division

is permissible under the Appointments Clause only if an indepen-

dent counsel is both an ‘‘infecior officer,’’ and one whose appoint-

'tAt the very least, as the Department of Justice has observed, the pro-

visions ‘‘imply that Congress could exercise control over prosecutorial

decisions."’ 123 Cong. Rec. 21002 (1977) (Written Statement of John Har-

mon, Acting Assistant Attorney General, Office of Legal Counsel). The

Department of Justice recommended that this ‘‘implication’’ be avoided

by deleting the oversight provision. See id. Instead, Congress confirmed

the implication by retaining the language in the face of the objection.

19

ment by a court is not ‘‘incongruous.’’ In determining whether these

requirements have been satisfied, the Appointments Clause is not

to be read in isolation, but must be viewed ‘‘in the context of thie]

cognate [constitutional] provisions’’ reflecting the ‘‘concern of the

Framers of the Constitution with maintenance of the separation

of powers.’’ Buckley v. Valeo, 424 U.S. at 124. The Appointments

Clause reflects the Framers’ view that ‘‘each department . . . 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.’’ The Federalist No. 51, at 321 (J. Madison).

A. An Independent Counsel Is Not An Inferior Officer

An independent counsel under the Act is not an inferior officer

for the simple reason that he has no superior. The one consistent

definition in the cases is that the term ‘‘inferior officer’’ means an

officer subordinate to those superior officers requiring appointment

by the President. See, e.g., Buckley v. Valeo, 424 U.S. at 124; United

States v. Eaton, 169 U.S. 331, 342-344 (1898); United States v. Ger-

maine, 99 U.S. 508, 509-510 (1879); Collins Case, 14 Ct. Cl. 569,

574 (1878). This definition accords perfectly with the plain mean-

ing of the word, ‘inferior’: ‘‘[o}ne who, in relation to another, has

less power and is below him; one who is bound to obey another.’

Black’s Law Dictionary, 918 (4th ed. 1968). It also makes coherent

constitutional sense, for it assures that the ultimate lines of core

executive power run through a superior officer appointed by the

President with the advice and consent of the Senate. Because an

independent counsel is not the subordinate of any other officer of

the United States, he is not an inferior officer within the meaning

of the Clause.

This conclusion also follows from the recent decision in Jn re Sealed

Case, 829 F.2d 50 (D.C. Cir. 1987), cert. denied sub nom. North

v. Walsh, 108 S. Ct. 753 (1988), an Appointments Clause challenge

to the authority of Independent Counsel Walsh. The court of ap-

peals concluded that it need not decide the constitutionality of Mr.

Walsh's appointment under the Act if his ‘‘back-up’’ appointment

under the Attorney General's regulation was valid. An Appointments

20

Clause issue nevertheless was presented, because the latter ap-

pointment had not been made by the President with the advice and

consent of the Senate. The validity of that appointment thus turn-

ed on whether Mr. Walsh, in his capacity as a Justice Department

appointee, was an inferior officer. The court of appeals held that

he was, because he was directly subordinate to the Attorney

General, who could revoke the regulation at will. Unlike an indepen-

dent counsel appointed under the Justice Department regulations,

however, an independent counsel appointed under the Act has a

statutory guarantee of independence that makes him more than a

mere ‘‘subordinate . . . charged with the performance of the duty

of the superior for a limited time and under special and temporary

conditions."’ United States v. Eaton, 169 U.S. at 343 (emphasis add-

ed). An independent counsel under the Act is thus, in Eaton's terms,

a ‘‘superior official.’*'

B. Appointment of Independent Counsel By A Court Is Constitu-

tionally Incongruous

Even if an independent counsel could be classified as an inferior

officer, it does not follow that his appointment properly can be vested

in a court. The Appointments Clause’s proviso that the appoint-

ment of inferior officers may be vested ‘‘in the Courts of Law’’

should not be construed to coniradict the Framers’ admonition that

the separation of powers would be compromised if the other bran-

ches could appoint executive officers. See The Federalist No. 51,

at 321 (J. Madison) (C. Rossiter ed. 1961); Jd. No. 72, at 436 (A.

Hamilton). Rather, interpretation of the Clause should recognize

'2This same distinction renders i.applicable the reasoning of U/mited States

v. Solomon, 216 F. Supp. 835 (S.D.N.Y. 1963), in which the court upheld

the constitutionality of judicial appointment of interim United States at-

torneys. Unlike an independent counsel, an interim United States attorney

is truly subordinate to the Attorney General in that he is subject to the

Attorney General's supervision in the performance of all his duties, see

28 U.S.C. § 519, removable at the will of the Executive, see Parsons v.

United States, 167 U.S. 324 (1897), and may be replaced by a permanent

Presidential appointee ‘‘at any time, the judicial appointment notwithstan-

ding.'’ Solomon, 216 F. Supp. at 842-843.

21

that the power to appoint inferior officers ‘‘was no doubt intended

to be exercised by the department of the government to which the

officer to be appointed most appropriately belonged.'’ Ex parte Hen-

nen, 38 U.S. (13 Pet.) 225, 258 (1839).

To be sure, Ex Parte Siebold, 100 U.S. 3711880), held that the

appointive powers of the courts were not strictly limited to officers

who could be classed as ‘‘judicial.’’ But the attempt to vest the

courts with appointive power over an officer empowered to exer-

cise the full investigative and prosecutorial authority of the United

States far exceeds the limits on that power that were recognized

in Siebold. From the standpoint of separation of powers, judicial ap-

pointment of such an officer is ‘‘incongruous’’ not only because of

the centrality of the investigative and prosecutorial functions to the

President's mission to take care that the laws are faithfully executed,

but also because of the lack of any judicial power with respect to

those functions. See Currie, The Distribution of Powers after Bowsher,

1986 Sup. Ct. Rev. 19, 36.

The incongruity of judicial entanglement in the appointment of pro-

secutors is underscored by this Court's recent opinion in Young

v. United States ex rel. Vuitton et Fils S.A., supra. In Young, the

Court held that the only reason the judicial appointment of private

attorneys to prosecute criminal contempts does not violate the prin-

ciple of separation of powers is that the judiciary has the inherent

power to punish contempts in order ‘‘to vindicate its own authori-

ty without complete dependence on other branches."’ /d. at 2131.

The Court expressly noted that the exercise of this inherent authori-

ty to punish contempts is not analogous to the ‘‘execution of the

criminal law in which only the executive branch may engage.’’ /d.

at 2133. ‘‘Acknowledging the limited authority of courts to appoint

contempt prosecutors thus provides no principle that can be wield-

ed to eradicate fundamental separation-of-powers boundaries.’’ /d.

at 2134 n.10. As Justice Scalia observed, the Court's opinion creates

‘‘a special exception for prosecutions of criminal contempt"’ and

does not contest the ‘‘well settled general principlie]"’ that ‘‘since

the prosecution of law violators is part of the implementation of the

laws, it is — at least to the extent that it is publicly exercised —

22

executive power, vested by the Constitution in the President.’* /d.

at 2142 (Scalia, J., concurring in the judgment). In recognizing the

exceptional nature of a court's power to appoint contempt pro-

secutors, the majority in Young implicitly asserted the imap-

propriateness — or incongruity — of a judicial role in the appoint-

ment of prosecutors generally.'*

Appellant urges this Court to adopt an incongruity test that is

premised not on a searching inquiry into whether the appointment

power granted to the court by the Act is consistent with or proper-

ly ancillary to the judicial function, but rather on an ad hoc inquiry

into whether judges might be better suited in certain circumstances

to perform a particular executive function than is the President. Such

a view of the incongruity limitation, grounded completely in sub-

jective views of expediency, is plainly at odds with the separation-

of-powers principles that the Appointments Clause was intended

to enshrine. If the incongruity test is to serve its function, it can-

not be subject to the vicissitudes of free-ranging policy judgments

as to the desirability of particular grants of appointment power;

rather, it must require an inquiry into the consistency of judicial ap-

pointment with structural separation-of-powers concerns. Under this

proper inquiry, the incongruity test cannot be satisfied by the asser-

tion that judicial control over core executive functions is somehow

The incongruity of the court's power to appoint independent counsel

ste.ns not only from the nature of an independent counsel's duties, but

also from the nature of the functions the court must assume in conjunc-

tion with its appointment power. As the three-judge district court held

in Hobson v. Hansen, 265 F. Supp. 902 (D.D.C. 1977), the incongruity

limitation is transgressed when a grant of appointive power to a court Is

coupled with actual supervisor y or administrative authority over the per-

cone appeited. Id. at 913 & n.14. That, of course, wagers paras

dent counsel, tut sino Goat hn east gushes cious enantneny Gun-

tions, including defining the independent counsel's tasks and determining

whether and when he or she has completed them. See 28 U.S.C. §§ 593(b)

and 596(b)(2). These supervisory powers plainly run afoul of the incongruity

limitation even if judicial appointment of independent counsel could, stan-

ding alone, be deemed proper.

23

preferable to Presidential control, for such a justification is simply

impermissible under the Constitution.

C. Courts Are Functionally Ill-Suited To Appoint Independent

Counsel

Quite apart from the inappropriateness of appellant's suggested

analysis under our constitutional scheme, there is serious question

as to whether entrusting the appointment of independent counsel

to the court itself is a trustworthy scheme. The Act, for example,

contains no guidelines or criteria for the Special Division to follow

in selecting an ‘‘appropriate’’ independent counsel. Nowhere does

the Act require the court to ascertain whether the appointee himself

may have a personal or political conflict of interest that could in-

fluence the objectivity or integrity of the investigation he conducts

or the prosecution he alone has the authority to bring against the

target of his prosecutorial power.

The Deaver case illustrates the danger inherent in the statute's

appointive mechanisms, for there is no evidence that the Special

Division even knew, much less considered, before making its ap-

pointment in that .ase that Mr. Seymour had long been embroiled

in a legal battle — before both the courts and the Federal Election

Commission — in which he alleged that improprieties by a political

PAC Mr. Deaver helped found, and with which he was closely

associated, were in part to blame for Mr. Seymour's defeat in a

1982 Senate race. See Deaver v. Seymour, C.A. No. 87-0447, Plain-

tiff's Statement of Material Facts Not Genuinely in Dispute (March

5, 1987) (D.D.C.); United States v. Deaver, Defendant's Memoran-

dum in Support of Motion To Dismiss One Count of the Indictment

On Grounds of Prosecutoriai Vindictiveness (April 20, 1987). Had

Mr. Seymour’s appointment been subject to confirmation by the

Senate, as would that of any other person exercising the full power

of the Attorney General of the United States, his involvement in

that dispute even as of the date of his appointment, as well as the

consequent likelihood of his lack of impartiality toward Mr. Deaver,

almost certainly would have surfaced and been fully aired prior to

24

any appointment decision. Instead, the investigation of Mr. Sey-

mour’s personal and political background, and of any possible con-

flicts of interest, was left to Mr. Deaver alone, whose post-

appointment uncovering of Mr. Seymour’s partiality fell on deaf ears,

and whose motion to disqualify Mr. Seymour before trial was denied

without a hearing.

V. THE ACT’S REMOVAL PROVISIONS IMPERMIS-

SIBLY INTERFERE WITH EXECUTIVE PRE-

ROGATIVES.

A. The Statute Unconstitutionally Restncts the President's

Removal Power

The importance of Presidential authority to remove executive of-

ficers was explained by James Madison during the debate in the First

Congress over the issue of removal of the Secretary of State:

If the President should possess alone the power of re-

moval from office, those who are employed in the ex-

ecution of the law will be in their proper situation, and

the chain of dependence be preserved; the lowest of-

ficers, the middle grade, and the highest will depend, as

they ought, on the President, and the President on the

community.

1 Annals of Cong. 499. Madison's views prevailed in the First Con-

gress, and, in the resulting ‘‘Decision of 1789,"’ the Congress

recognized the inherent executive power of removal. See generally

Bowsher v. Synar, 106 S. Ct. at 3187.

The constitutional necessity of Presidential removal power over

executive officers — and in particular of prosecutors — was

underscored some forty years later by then-Attorney General Taney,

in The Jewels of the Princess of Orange, supra. \n that opinion, Taney

explored the possibility that a district attorney might disobey the

President, and considered the President’s recourse in that event:

The district attorney might refuse to obey the President's

order; and if he did refuse, the prosecution, while he re-

25

mained in office, would still go on; because the Presi-

dent could give no order to the court or clerk to make

any particular entry. He could only act through his subor-

dinate officer, the district attorney, who is responsible

to him, and who holds his office at his pleasure. And if

that officer still continued a prosecution which the Presi-

dent was satisfied ought to be discontinued, the removal

of the disobedient officer, and the substitution of one more

worthy in his place, would enable the President, through

him, faithfully to execute the law. And it is for this, among

other reasons, that the power of removing the district

attorney resides in the President.

2 Op. Atty Gen. at 489. In short, as this Court subsequently agreed,

an unfettered removal power is the essential trump card that enables

the President to maintain his sway over those executing the laws. '4

See Myers v. United States, 272 U.S. at 122.'5

'#Contrary to the suggestion of the Special Division in Jn re Olson, 818

F.2d at 44-45, the essential power is not that of-removal for ‘‘improprie-

ty,’’ but of removal for disobedience.

'SWhile Myers suggested that the President's removal power over in-

ferior officers might be qualified in cases in which Congress chose to

authorize their appointment by the heads of departments, this feature of

Myers is irrelevant to this case for three reasons. First, as shown above,

an independent counsel is not an inferior officer. Second, Myers nowhere

mentioned the possibility that Presidential removal power could be limited

as to an executive officer appointed by a court. See L. Tribe, Amencan

Constitutional Law \ 4-9, at 189-90 n.23 (1978). Because the discharge

of executive functions by one so appointed is itself in derogation of

Presidential authority, Presidential removal power is all the more essen-

tial to ensure some accountability to the Executive Branch. Third, and

most important, the reasons for requiring unrestricted Presidential removal

power over the independent counsel apply equally regardless of whether

the independent counsel is an inferior or superior officer. In both cases

the power is necessary to vindicate the President's authority to take care

that laws be faithfully executed. See Currie, The Distribution of Powers

after Bowsher, 1986 Sup. Ct. Rev. at 34-35; Miller, /ndependent Agen-

cies, 1986 Sup. Ct. Rev. at 44.

26

This conclusion is not, as appellant contends, undermined by this

Court’s decision in United States v. Nixon, 418 U.S. 683 (1974).

Rather, that case explicity reaffirmed that ‘‘the Executive Branch

has exclusive authority and absolute discretion to decide whether

to prosecute a case,”’ id. at 693, and held only that where the Presi-

dent or his alter ego, the Attorney General, has chosen to pro-

niulgate a regulation creating an independent special prosecutor's

office and insulating the special prosecutor from removal, a court

must give effect to the Executive Branch’s own regulation so long

as it is in force. Id.at 696. The Court's recognition of the Executive

Branch’s own power of self-denial — which the executive was free

to disavow at any time by revoking the regulation providing for the

special prosecutor's authority, see id.; cf. In re Sealed Case, 829

F.2d at 56 n.33 — by no means suggests that similar restraints may

be foisted on the President through legislation that the Executive

Branch is not free to abrogate unilaterally.

B. The Statute Vests the Judicial Branch with Unprecedented

Powers of Removal Over an Executive Officer

The removal provisions of the Act are further flawed by the

authority they give to the appointing court to terminate an office

of independent counsel, and thus in effect remove the independent

counsel, whenever it determines that further proceedings by the

independent counsel are no longer ‘‘appropriate.’’ 28 U.S.C. § 596

(b)(2). As the three-judge court observed in its opinion in Synar

v. United States, 626 F. Supp. 1374, 1401 (D.D.C. 1986) (three-

judge court), ‘‘Once an officer is appointed, it is only the authority

that can remove him, and not the authority that appointed him, that

he must fear and, in the performance of his functions, obey.’’ Ac-

cordingly, legislation placing removal power over executive officials

outside the Executive Branch ‘‘creates the here-and-now subser-

vience to another branch that raises separation-of-powers pro-

blems.’’ Id. at 1392 (footnote omitted). This Court’s affirmance in

Bowsher v. Synar rested precisely on the ground that the ‘‘separa-

tion-of-powers problems’’ created by such subservience are in-

superable: the usurpation of executive power inherent in any legisla-

tion purporting to grant to another branch such potentially coer-

cive power over officers performing executive functions renders

the legislation unconstitutional. 106 S. Ct. at 3188-89.

Bowsher, of course, concerned congressional rather than Judicial

removal power. See id. at 3188. The reasoning of Bowsher, how-

ever, goes further. The Court’s conclusion that the power to remove

an officer is by its very nature the power to coerce and control him

does not depend upon whether the power is vested in legislative

or judicial hands. Just as it is true that ‘‘[t]he Constitution does not

contemplate an active role for Congress in the supervision of of-

ficers charged with the execution of the laws,’’ id. at 3187. so too

is it true that the Judicial Branch has no general supervisory power

over the conduct of executive officials. If, as Bowsher held, it follows

from Congress’ lack of power to execute the laws that Congress

may not exercise removal authority (and hence coercive power) over

executive officers, the same must also be true of the Judicial

Branch. '® The fundamental underpinning of Bowsher is the ‘‘‘necessi-

ty of maintaining each of the three general departments of govern-

ment entirely free from the control or coercive influence, direct or

indirect, of either of the others.’’’ 106 S. Ct. at 3188 (quoting Hum-

phrey's Executor v. United States, 295 U.S. 602, 629 (1935)). That

essential independence of the branches is as compromised by a

judicial, as by a congressional, role in the removal of executive

officers.

Nor can it be suggested that the Special Division's power to ter-

minate an office of independent counsel poses no realistic threat

of inducing subservience to the court because it was intended for

use only in limited circumstances and as a last resort, and has never

to date been invoked. Precisely the same argument was made by

‘Indeed, it would seem that a judicial role in removal of executive of-

ficers is even more inimical to the separation of powers than the congres-

sional removal power held unconstitutional in Bowsher, for the Constitu-

tion itself provides for some congressional role in removal through the

impeachment process, see 106 S. Ct. at 3190; id. at 3212 (White, J., dis-

senting), but nowhere provides for judicial removal power in any form.

28

the dissent in Bowsher, see 106 S. Ct. at 3211-3213 (White, J.

dissenting), and was brushed aside by the majority, see id. at

3190-3191. The teaching of Bowsher on this point is crystal clear:

it is the potential for removal, not the likelihood thereof, that, *‘[i)n

constitutional terms,’’ dictates subservience to the branch with

removal power. Jd. at 3191. Performance of executive functions

by any officer subservient to another branch is per se impermissi-

ble even absent proof that such subservience has tangibly affected

the performance of his duties. Jd.'’

CONCLUSION

The Act’s provisions concerning the appointment, removal, and

supervision of independent counsel reflect the single animating pur-

pose of removing, insofar as possible, the investigation and pro-

secution of individuals covered by the Act from Executive Branch

control. Even if the individual features of the legislation implemen-

ting this scheme could withstand constitutional scrutiny viewed in

‘7The Attorney General's limited removal power, see 28 U.S.C. \ 596(a),

fails to counteract the separation-of-powers problems flowing from the

court’s independent power to terminate an office of independent counsel.

Indeed, the limitations on the Attorney General’s removal power are so

extensive that they actually tend to reinforce an independent counsel's

ultimate dependency upon, and hence subservience to, the Court. Not

only is the Attorney General’s removal authority limited to misconduct

or incapacity, but any attempt to exercise that authority also is subject

to de novo review by the Special Division of the Court of Appeals, which

has authority to reinstate its appointee if it disagrees with the Attorney

General's decision on either legal or factual grounds. Although recent

amendments to the Act have transferred this review function to the distnct

court, those amendments do not alter what the terms of the Act were

during the Deaver case. An Independent Counsel's ability to appeal de novo

to the court — the same authority that orginally considered him worthy

of appointment — ensures that he will in fact be answerable to no one

but the court. The court's removal authority thus guarantees that an in-

dependent counsel — an officer performing core executive functions —

will be beholden to the court; and Bowsher firmly holds that such subser-

vience to another branch by an officer exercising core executive power

is constitutionally impermissible.

29

isolation, their combined effect of stnpping the executive of cen-

tral powers and placing them in the hands of officers beyond

Presidential control distorts the scheme of separation of powers

too much to be condoned. Flexible though the system of separa-

tion of powers may be, it is not infinitely malleable, and ‘‘a power

definitely assigned by the Constitution to one department can neither

be surrendered nor delegated by that department, nor vested by

statute in another department or agency."’ Williams v. United States,

289 U.S. 553, 580 (1933) (emphasis in original).

The Act's legislative history confirms that it was explicitly intended

to take inherently executive power out of the hands of the Executive

Branch and place it elsewhere. Congress elected to intrude upon

the executive domain purportedly because of a perception based

upon Watergate that this alteration in our system of government

was necessary to prevent conflicts of interest within the Executive

Branch. This asserted justification is simply insufficient to support

the constitutionality of the statute. The appeal to necessity or utih-

ty not only overlooks historical evidence demonstrating that special

prosecutors within the Executive Branch have been equal to the

task of prosecuting crimes at the highest levels of government, but

it also, and more fundamentally, ignores this Court’s admonition

that ‘‘policy arguments supporting even useful ‘political inventions’

are subject to the demands of the Constitution which defines powers

and . . . sets out just how those powers are to be exercised.’" NS

v. Chadha, 462 U.S. at 945. In the final analysis, it also ignores

that application of the Act in individual cases threatens the fundamen-

tal liberties and individual nghts of those citizens targeted by an

independent counsel investigation or prosecution. While it is perhans

understandable that in responding to Watergate, Congress overlook-

ed the impact the Act would have on individual citizens, this Court

now has before it the proof of such impact in both the Olson in-

vestigation, and in the Dedver case. Both cases demonstrate the

danger to individual citizens of the unaccountable exercise of govern-

mental power outside the structural protections of the constituuonal

principle of separation of powers.

30

In our system of government, the solution to fears of conflict of

interest or abuse of power is not to reassign powers definitively

assigned by the Constitution to a particular branch of government,

for ‘‘such fears, however rational, do not by thernselves warrant

a distortion of the Framers’ work.’’ Buckley v. Valeo, 424 U.S. at

134; see also Untied States v. Will, 449 U.S. 200, 213-216 & n.19

(1981); Bowsher v. Synar, 106 S. Ct. at 3193-94. Mistrust of the

President or the Presidency cannot, under our Constitution, justify

taking from the Chief Executive his power to ‘‘take Care that the

Laws be faithfully executed.”’

The decision of the court of appeals should be affirmed.

Respectfully submitted,

HERBERT J. MILLER, JR.

? (Counsel of Record)

RANDALL J. TURK

4 STEPHEN L. BRAGA

JULIA E. GUTTMAN

MILLER, CASSIDY, LARROCA &

LEWIN

2555 M Street, N.W., Suite 500

Washington, D.C. 20037

(202) 293-6400

Attorneys For Amicus Cunae

Michael K. Deaver