MORRISON, INDEPENDENT COUNSEL v. OLSON ET AL.
No. 87-1279
Supreme Court of the United States
Argued April 26, 1988—Decided June 29, 1988
487 U.S. 654
Alexia Morrison, appellant, argued the cause pro se. With her on the briefs were Earl C. Dudley, Jr., and Louis
Thomas S. Martin argued the cause for appellees. With him on the brief for appellee Olson were Anthony C. Epstein, David E. Zerhusen, David W. DeBruin, and Carl S. Nadler. Brendan V. Sullivan, Jr., Barry S. Simon, Jacob A. Stein, and Robert F. Muse filed a brief for appellees Schmults et al. Solicitor General Fried argued the cause for the United States as amicus curiae in support of appellees. With him on the brief were Assistant Attorney General Bolton, Deputy Solicitors General Cohen and Bryson, Deputy Assistant Attorneys General Spears and Cynkar, Edwin S. Kneedler, Richard G. Taranto, Robert E. Kopp, and Douglas Letter.*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
This case presents us with a challenge to the independent counsel provisions of the Ethics in Government Act of 1978,
*Briefs of amici curiae urging reversal were filed for the American Bar Association by Robert MacCrate and Irvin B. Nathan; for Common Cause by Archibald Cox, Donald J. Simon, Paul A. Freund, and Philip B. Heymann; for the Center for Constitutional Rights by Morton Stavis, Michael Ratner, Frank Askin, and Daniel Pollitt; for Public Citizen by Eric R. Glitzenstein and Alan B. Morrison; for Burton D. Linne et al. by Edwin Vieira, Jr.; and for Lawrence E. Walsh by Laurence H. Tribe, Paul L. Friedman, and Guy Miller Struve.
Briefs of amici curiae urging affirmance were filed for Michael K. Deaver by Herbert J. Miller, Jr., and Randall J. Turk; and for Edward H. Levi et al. by David A. Strauss.
Briefs of amici curiae were filed for the Speaker and Leadership Group of the House of Representatives by Steven R. Ross, Charles Tiefer, and Michael L. Murray; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Michael H. Gottesman, and Laurence Gold; and for Whitney North Seymour, Jr., by Mr. Seymour, pro se, George F. Hritz, Benjamin R. Civiletti, and Ramsey Clark.
I
Briefly stated, Title VI of the Ethics in Government Act (Title VI or the Act),
Two statutory provisions govern the length of an independent counsel‘s tenure in office. The first defines the procedure for removing an independent counsel. Section 596(a)(1) provides:
“An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel‘s duties.”
If an independent counsel is removed pursuant to this section, the Attorney General is required to submit a report to both the Special Division and the Judiciary Committees of the Senate and the House “specifying the facts found and the ultimate grounds for such removal.”
The other provision governing the tenure of the independent counsel defines thе procedures for “terminating” the counsel‘s office. Under
Finally, the Act provides for congressional oversight of the activities of independent counsel. An independent counsel may from time to time send Congress statements or reports on his or her activities.
The proceedings in this case provide an example of how the Act works in practice. In 1982, two Subcommittees of the House of Representatives issued subpoenas directing the Environmental Protection Agency (EPA) to produce certain documents relating to the efforts of the EPA and the Land and Natural Resources Division of the Justice Department to enforce the “Superfund Law.”10 At that time, appellee Olson was the Assistant Attorney General for the Office of Legal Counsel (OLC), appellee Schmults was Deputy Attorney General, and appellee Dinkins was the Assistant Attorney General for the Land and Natural Resources Division. Acting on the advice of the Justice Department, the President ordered the Administrator of EPA to invoke executive privilege to withhold certain of the documents on the ground that they contained “enforcement sensitive information.” The Administrator obeyed this order and withheld the documents. In response, the House voted to hold the Administrator in contempt, after which the Administrator and the United States together filed a lawsuit against the House. The conflict abated in March 1983, when the administration agreed to give the House Subcommittees limited access to the documents.
The following year, the House Judiciary Committee began an investigation into the Justice Department‘s role in the controversy over the EPA dоcuments. During this investigation, appellee Olson testified before a House Subcommittee
The Attorney General directed the Public Integrity Section of the Criminal Division to conduct a preliminary investigation. The Section‘s report concluded that the appointment of an independent counsel was warranted to investigate the Committee‘s allegations with respect to all three appellees. After consulting with other Department officials, however, the Attorney General chose to apply to the Special Division for the appointment of an independent counsel solely with respect to appellee Olson.11 The Attorney General accordingly
On April 23, 1986, the Special Division appointed James C. McKay as independent counsel to investigate “whether the testimony of ... Olson and his revision of such testimony on March 10, 1983, violated either
“shall have jurisdiction to investigate any other allegation of evidence of violation of any Federal criminal law by Theodore Olson developed during investigations, by the Independent Counsel, referred to above, and connected with or arising out of that investigation, and Independent Counsel shall have jurisdiction to prosecute for any such violation.” Order, Div. No. 86-1 (CADC Special Division, April 23, 1986).
McKay later resigned as independent counsel, and on May 29, 1986, the Division appointed appellant Morrison as his replacement, with the same jurisdiction.
In January 1987, appellant asked the Attorney General pursuant to
in United States House Judiciary Committee Report 22, 45 (Apr. 10, 1986), filed in No. 86-1 (CADC) (Attorney General Report).
Following this ruling, in May and June 1987, appellant caused a grand jury to issue and serve subpoenas ad testificandum and duces tecum on appellees. All three appellees moved to quash the subpoenas, claiming, among other things, that the independent counsel provisions of the Act were unconstitutional and that appellant accordingly had no authority to proceed. On July 20, 1987, the District Court upheld the constitutionality of the Act and denied the motions to quash. In re Sealed Case, 665 F. Supp. 56 (DC). The court subsequently ordered that appellees be held in contempt pursuant to
A divided Court of Appeals reversed. In re Sealed Case, 267 U. S. App. D. C. 178, 838 F. 2d 476 (1988). The majority ruled first that an independent counsel is not an “inferior Officer” of the United States for purposes of the Appointments Clause. Accordingly, the court found the Act invalid because it does not provide for the independent counsel to be nominated by the President and confirmed by the Senate, as the Clause requires for “principal” officers. The court then
II
Before we get to the merits, wе first must deal with appellant‘s contention that the constitutional issues addressed by the Court of Appeals cannot be reviewed on this appeal from the District Court‘s contempt judgment. Appellant relies on Blair v. United States, 250 U. S. 273 (1919), in which this Court limited rather sharply the issues that may be raised by an individual who has been subpoenaed as a grand jury witness and has been held in contempt for failure to comply with the subpoena. On the facts of this case, however, we find it unnecessary to consider whether Blair has since been narrowed by our more recent decisions, as appellees contend and the Court of Appeals found in another related case, In re Sealed Case, 264 U. S. App. D. C. 125, 827 F. 2d 776 (1987). Appellant herself admits that she failed to object to the District Court‘s consideration of the merits of appellees’ constitutional claims, and as a result, the Court of Appeals ruled that she had waived her opportunity to contend on appeal that review of those claims was barred by Blair. We see no reason why the Court of Appeals was not entitled to conclude
III
The Appointments Clause of Article II reads as follows:
“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
U. S. Const., Art. II, § 2, cl. 2 .
The parties do not dispute that “[t]he Constitution for purposes of appointment divides all its officers into two classes.” United States v. Germaine, 99 U. S. 508, 509 (1879). As we stated in Buckley v. Valeo, 424 U. S. 1, 132 (1976): “Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary.” The initial
The line between “inferior” and “principal” officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. See, e. g., 2 J. Story, Commentaries on the Constitution § 1536, pp. 397-398 (3d ed. 1858) (“In the practical course of the government there does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the constitution, whose appointment does not necessarily require the concurrence of the senate“). We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view appellant clearly falls on the “inferior officer” side of that line. Several factors lead to this conclusion.
First, appellant is subject to removal by a higher Executive Branch official. Although appellant may not be “subordinate” to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act, the fact that she can be removed by the Attorney General indicates that she is to some degree “inferior” in rank and authority. Second, appellant is empowered by the Act to perform only certain, limited duties. An independent counsel‘s role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. Admittedly, the Act delegates to appellant “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice,”
Third, appellant‘s office is limited in jurisdiction. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General. Finally, appellant‘s office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is “temporary” in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake. In our view, these factors relating to the “ideas of tenure, duration ... and duties” of the independent counsel, Germaine, supra, at 511, are sufficient to establish that appellant is an “inferior” officer in the constitutional sense.
This conclusion is consistent with our few previous decisiоns that considered the question whether a particular Government official is a “principal” or an “inferior” officer. In United States v. Eaton, 169 U. S. 331 (1898), for example, we approved Department of State regulations that allowed executive officials to appoint a “vice-consul” during the temporary absence of the consul, terming the “vice-consul” a “subordinate officer” notwithstanding the Appointment Clause‘s specific reference to “Consuls” as principal officers. As we stated: “Because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions he is not thereby transformed into the superior and permanent offi-
This does not, however, end our inquiry under the Appointments Clause. Appellees argue that even if appellant is an “inferior” officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch. They contend that the Clause does not contemplate congressional authorization of “interbranch appointments,” in which an officer of one branch is appointed by officers of another branch. The relevant language of the Appointments Clause is worth repeating. It reads: “... but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments.” On its face, the language of this “excepting clause” admits of no limitation on interbranch appointments. Indeed, the inclusion of “as they think proper” seems clearly to give Congress significant discretion to determine whether it is “proper” to vest the appointment of, for example, executive officials in the “courts of Law.” We recognized as much in one of our few decisions in this area, Ex parte Siebold, supra, where we stated:
“But as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress. And, looking at the subject in a practical light, it is perhaps better that it should rest there, than that the country should be harassed by the endless controversies to which a more specific direction on this subject might have given rise.” Id., at 397-398.
Our only decision to suggest otherwise, Ex parte Hennen, 13 Pet. 230 (1839), from which the first sentence in the above quotation from Siebold was derived, was discussed in Siebold and distinguished as “not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed.” 100 U. S., at 398. Outside of these two cases, there is very little, if any, express discussion of the propriety of interbranch appointments in our decisions, and we see no reason now to depart from the holding of Siebold that such appointments are not proscribed by the excepting clause.
We also note that the history of the Clause provides no support for appellees’ position. Throughout most of the process of drafting the Constitution, the Convention concentrated on the problem of who should have the authority to appoint judges. At the suggestion of James Madison, the Convention adopted a proposal that the Senate should have this authority, 1 Records of the Federal Convention of 1787, pp. 232-233 (M. Farrand ed. 1966), and several attempts to transfer the appointment power to the President were re-
We do not mean to say that Congress’ power to provide for interbranch appointments of “inferior officers” is unlimited. In addition to separation-of-powers concerns, which would arise if such provisions for appointment had the potential to
IV
Appellees next contend that the powers vested in the Special Division by the Act conflict with Article III of the Constitution. We have long recognized that by the express provision of Article III, the judicial power of the United States is limited to “Cases” and “Controversies.” See Muskrat v. United States, 219 U. S. 346, 356 (1911). As a general rule, we have broadly stated that “executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution.” Buckley, 424 U. S., at 123 (citing United States v. Ferreira, 13 How. 40 (1852); Hayburn‘s Case, 2 Dall. 409 (1792)).15 The pur-
Most impоrtantly, the Act vests in the Special Division the power to choose who will serve as independent counsel and the power to define his or her jurisdiction.
Leaving aside for the moment the Division‘s power to terminate an independent counsel, we do not think that Article III absolutely prevents Congress from vesting these other miscellaneous powers in the Special Division pursuant to the Act. As wе observed above, one purpose of the broad prohibition upon the courts’ exercise of “executive or administrative duties of a nonjudicial nature,” Buckley, 424 U. S., at 123, is to maintain the separation between the Judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accom-
We think that the Court of Appeals overstated the matter when it described the power to terminate as a “broadsword and . . . rapier” that enables the court to “control the pace and depth of the independent counsel‘s activities.” 267 U. S. App. D. C., at 217, 838 F. 2d, at 515. The provision has not been tested in practice, and we do not mean to say that an adventurous special court could not reasonably construe the provision as did the Court of Appeals; but it is the duty of federal courts to construe a statute in order to save it from constitutional infirmities, see, e. g., Commodity Futures Trading Comm‘n v. Schor, 478 U. S. 833, 841 (1986), and to that end we think a narrow construction is appropriate here. The termination provisions of the Act do not give the Special Division anything approaching the power to remove the counsel while an investigation or court proceeding is still underway—this power is vested solely in the Attorney General. As we see it, “termination” may occur only when the duties of
Nor do we believe, as appellees contend, that the Special Division‘s exercise of the various powers specifically granted to it under the Act poses any threat to the “impartial and independent federal adjudication of claims within the judicial power of the United States.” Commodity Futures Trading Comm‘n v. Schor, supra, at 850. We reach this conclusion for two reasons. First, the Act as it currently stands gives the Special Division itself no power to review any of the actions of the independent counsel or any of the actions of the Attorney General with regard to the counsel. Accordingly, there is no risk of partisan or biased adjudication of claims regarding the independent counsel by that court. Second, the Act prevents members of the Special Division from participating in “any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel‘s official duties, regard-
We emphasize, nevertheless, that the Special Division has no authority to take any action or undertake any duties that are not specifically authorized by the Act. The gradual expansion of the authority of the Special Division might in another context be a bureaucratic success story, but it would be one that would have serious constitutional ramifications. The record in other cases involving independent counsel indicate that the Special Division has at times given advisory opinions or issued orders that are not directly authorized by the Act. Two examples of this were cited by the Court of Appeals, which noted that the Special Division issued “orders” that ostensibly exempted the independent counsel from conflict-of-interest laws. See 267 U. S. App. D. C., at 216, and n. 60, 838 F. 2d, at 514, and n. 60 (citing In re Deaver, No. 86-2 (CADC Special Division, July 2, 1986), and In re Olson, No. 86-1 (CADC Special Division, June 18, 1986)). In another case, the Division reportedly ordered that a counsel postpone an investigation into certain allegations until the completion of related state criminal proceedings. See H. R. Rep. Conf. Rep. No. 100-452, p. 26 (1987). The propriety of the Special Division‘s actions in these instances is not before us as such, but we nonetheless think it appropriate to point out not only that there is no authorization for such actions in the Act itself, but that the Division‘s exercise of unauthorized
V
We now turn to consider whether the Act is invalid under the constitutional principle of separation of powers. Two related issues must be addressed: The first is whether the provision of the Act restricting the Attorney General‘s power to remove the independent counsel to only those instances in which he can show “good cause,” taken by itself, impermissibly interferes with the President‘s exercise of his constitutionally appointed functions. The second is whether, taken as a whole, the Act violates the separation of powers by reducing the President‘s ability to control the prosecutorial powers wielded by the independent counsel.
A
Two Terms ago we had occasion to consider whether it was consistent with the separation of powers for Congress to pass a statute that authorized a Government official who is removable only by Congress to participate in what we found to be “executive powers.” Bowsher v. Synar, 478 U. S. 714, 730 (1986). We held in Bowsher that “Congress cannot reserve
Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch; an independent counsel may be removed from office, “only by the personal action of the Attorney General, and only for good cause.”
Similarly, in Wiener we considered whether the President had unfettered discretion to remove a member of the War Claims Commission, which had been established by Congress in the War Claims Act of 1948, 62 Stat. 1240. The Commission‘s function was to receive and adjudicate certain claims for compensation from those who had suffered personal injury or property damage at the hands of the enemy during World War II. Commissioners were appointed by the President, with the advice and consent of the Senate, but the statute made no provision for the removal of officers, perhaps because the Commission itself was to have a limited existence. As in Humphrey‘s Executor, however, the Commissioners were entrusted by Congress with adjudicatory powers that were to be exercised free from executive control. In this context, “Congress did not wish to have hang over the Commission the Damocles’ sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing.” 357 U. S., at 356. Accordingly, we rejected the President‘s attempt to remove a Commissioner “merely because he wanted his own appointees on [the] Commission,” stating that “no such power is given to the President directly by the Constitution, and none is impliedly conferred upon him by statute.” Ibid.
Appellees contend that Humphrey‘s Executor and Wiener are distinguishable from this case because they did not involve officials who performed a “core executive function.” They argue that our decision in Humphrey‘s Executor rests on a distinction between “purely executive” officials and officials who exercise “quasi-legislative” and “quasi-judicial” powers. In their view, when a “purely executive” official is involved, the governing precedent is Myers, not Humphrey‘s Executor. See Humphrey‘s Executor, supra, at 628. And, under Myers, the President must have absolute discretion to
We undoubtedly did rely on the terms “quasi-legislative” and “quasi-judicial” to distinguish the officials involved in Humphrey‘s Executor and Wiener from those in Myers, but our present considered view is that the determination of whether the Constitution allows Congress to impose a “good cause”-type restriction on the President‘s power to remove an official cannot be made to turn on whether or not that official is classified as “purely executive.”27 The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President,28 but to ensure that Congress does
“The assumption was short-lived that the Myers case recognized the President‘s inherent constitutional power to remove officials no matter what the relation of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding the nature of their tenure.” 357 U. S., at 352.
At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey‘s Executor and Wie-
Nor do we think that the “good cause” removal provision at issue here impermissibly burdens the President‘s power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.32 Although we need not decide in this case exactly what is encompassed within the term “good cause” under the Act, the legislative history of the removal provision also makes clear that the Attorney General may remove an independent counsel for “misconduct.” See H. R. Conf. Rep. No. 100-452, p. 37 (1987). Here, as with the provision of the Act conferring the appointment authority of
B
The final question to be addressed is whether the Act, taken as a whole, violates the principle of separation of powers by unduly interfering with the role of the Executive Branch. Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. See, e. g., Bowsher v. Synar, 478 U. S., at 725 (citing Humphrey‘s Executor, 295 U. S., at 629-630). As we stated in Buckley v. Valeo, 424 U. S. 1 (1976), the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as “a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.” Id., at 122. We have not hesitated to invalidate provisions of law which violate this principle. See id., at 123. On the other hand, we have never held that the Constitution requires that the three
“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (concurring opinion).
We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. Cf. Commodity Futures Trading Comm‘n v. Schor, 478 U. S., at 856. Unlike some of our previous cases, most recently Bowsher v. Synar, this case simply does not pose a “dange[r] of congressional usurpation of Executive Branch functions.” 478 U. S., at 727; see also INS v. Chadha, 462 U. S. 919, 958 (1983). Indeed, with the exception of the power of impeachment—which applies to all officers of the United States—Congress retained for itself no powers of control or supervision over an independent cоunsel. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit.
Finally, we do not think that the Act “impermissibly undermine[s]” the powers of the Executive Branch, Schor, supra, at 856, or “disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions,” Nixon v. Administrator of General Services, supra, at 443. It is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity. The Attorney General is not allowed to appoint the individual of his choice; he does not determine the counsel‘s jurisdiction; and his
VI
In sum, we conclude today that it does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division; that the powers exercised by the Special Division under the Act do not violate
Reversed.
JUSTICE KENNEDY took no part in the consideration or decision of this case.
JUSTICE SCALIA, dissenting.
It is the proud boast of our democracy that we have “a government of laws and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:
“In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (hereinafter Federalist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.
The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles.
But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized “[t]he insufficiency of a mere parchment delineation of the boundaries” to achieve the separation of powers. Federalist No. 73, p. 442 (A. Hamilton). “[T]he great security,” wrote Madison, “against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.” Federalist No. 51, pp. 321-322. Madison continued:
“But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. . . . As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.” Id., at 322-323.
The major “fortification” provided, of course, was the veto power. But in addition to providing fortification, the Founders conspicuously and very consciously declined to sap the Executive‘s strength in the same way they had weakened
That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep‘s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
I
The present case began when the Legislative and Executive Branches became “embroiled in a dispute concerning the scope of the congressional investigatory power,” United States v. House of Representatives of United States, 556 F. Supp. 150, 152 (DC 1983), which—as is often the case with such interbranch conflicts—became quite acrimonious. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed numerous internal EPA documents. The President responded by personally directing the EPA Administrator not to turn over certain of the docu-
Congress did not, however, leave things there. Certain Members of the House remained angered by the confrontation, particularly by the role played by the Department of Justice. Specifically, the Judiciary Committee remained disturbed by the possibility that the Department had persuaded the President to assert executive privilege despite reservations by the
As a general matter, the Act before us here requires the Attorney General to apply for the appointment of an independent counsel within 90 days after receiving a request to do so, unless he determines within that period that “there are no reasonable grounds to believe that further investigation or prosecution is warranted.”
Thus, by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates.
II
If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. The Court devotes most of its attention to such relatively technical details as the Appointments Clause and the removal power, addressing briefly and only at the end of its opinion the separation of powers. As my prologue sug-
First, however, I think it well to call to mind an important and unusual premise that underlies our deliberations, a premise not expressly contradicted by the Court‘s opinion, but in my view not faithfully observed. It is rare in a case dealing, as this one does, with the constitutionality of a statute passed by the Congress of the United States, not to find anywhere in the Court‘s opinion the usual, almost formulary caution that we owe great deference to Congress’ view that what it has done is constitutional, see, e. g., Rostker v. Goldberg, 453 U. S. 57, 64 (1981); Fullilove v. Klutznick, 448 U. S. 448, 472 (1980) (opinion of Burger, C. J.); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 102 (1973); United States v. National Dairy Products Corp., 372 U. S. 29, 32 (1963), аnd that we will decline to apply the statute only if the presumption of constitutionality can be overcome, see Fullilove, supra, at 473; Columbia Broadcasting, supra, at 103. That caution is not recited by the Court in the present case because it does not apply. Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of pow-
To repeat,
“The executive Power shall be vested in a President of the United States.”
As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.
The Court concedes that “[t]here is no real dispute that the functions performed by the independent counsel are ‘executive‘,” though it qualifies that concession by adding “in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch.” Ante, at 691. The qualifier adds nothing but at-
As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that “some” Presidential control. “Most importan[t]” among these controls, the Court asserts, is the Attorney General‘s “power to remove the counsel for ‘good cause.‘” Ante, at 696. This is somewhat like referring to shackles as an effective means of locomotion. As we recognized in Humphrey‘s Executor v. United States, 295 U. S. 602 (1935)—indeed, what Humphrey‘s Executor was all about—limiting removal power to “good cause” is an impediment to, not an effective grant of, Presidential control. We said that limitation was necessary with respect to members of the Federal Trade Commission, which we found to be “an agency of the legislative and judicial
Moving on to the presumably “less important” controls that the President retains, the Court notes that no independent counsel may be appointed without a specific request from the Attorney General. As I have discussed above, the condition that renders such a request mandatory (inability to find “no reasonable grounds to believe” that further investigation is warranted) is so insubstantial that the Attorney General‘s discretion is severely confined. And once the referral is made, it is for the Special Division to determine the scope and duration of the investigation. See
As I have said, however, it is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that “[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity.” Ante, at 695. It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether “the President‘s need to control the exercise of [the independent counsel‘s]
The utter incompatibility of the Court‘s approach with our constitutional traditions can be made more clear, perhaps, by apрlying it to the powers of the other two branches. Is it conceivable that if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legislation, we would inquire whether the matter was “so central to the functioning of the Legislative Branch” as really to require complete control, or whether the statute gives Congress “sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties“? Of course we would have none of that. Once we determined that a purely legislative power was at issue we would require it to be exercised, wholly and entirely, by Congress. Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts—perhaps “clear error” review, which would be a fair judicial equivalent of the Attorney General‘s “for cause” removal power here. Is there any doubt that we would not pause to inquire whether the matter was “so central to the
Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. See Civil Rights Act of 1964, Title VII,
The Court has, nonetheless, replaced the clear constitutional prescription that the executive power belongs to the President with a “balancing test.” What are the standards to determine how the balance is to be struck, that is, how much removal of Presidential power is too much? Many countries of the world get along with an executive that is much weaker than ours—in fact, entirely dependent upon the continued support of the legislature. Once we depart from the text of the Constitution, just where short of that do we stop? The most amazing feature of the Court‘s opinion is that it does not even purport to give an answer. It simply announces, with no analysis, that the ability to control the decision whether to investigate and prosecute the President‘s closest advisers, and indeed the President himself, is not “so central to the functioning of the Executive Branch” as to be constitutionally required to be within the President‘s control. Apparently that is so because we say it is so. Having abandoned as the basis for our decisionmaking the text of Article II that “the executive Power” must be vested in the President, the Court does not even attempt to craft a substitute criterion—a “justiciable standard,” see, e. g., Baker v. Carr, 369 U. S. 186, 210 (1962); Coleman v. Miller, 307 U. S. 433, 454-455 (1939), however remote from the Constitution—that today governs, and in the future will govern, the decision of such questions. Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.
In my view, moreover, even as an ad hoc, standardless judgment the Court‘s conclusion must be wrong. Before this statute was passed, the President, in taking action disagreeable to the Congress, or an executive officer giving advice to the President or testifying before Congress concerning one of those many matters on which the two branches are from time to time at odds, could be assured that his acts and motives would be adjudged—insofar as the decision whether to conduct a criminal investigation and to prosecute is concerned—in the Executive Branch, that is, in a forum attuned to the interests and the policies of the Presidency. That was one of the natural advantages the Constitution gave to the Presidency, just as it gave Members of Congress (and their staffs) the advantage of not being prosecutable for anything said or done in their legislative capacities. See
Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one‘s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, “crooks.” And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution. The present statute provides ample means for that sort of attack, assuring that massive and lengthy investigations will occur, not merely when the Justice Department in the application of its usual standards believes they are called for, but whenever it
cannot be said that there are “no reasonable grounds to believe” they are called for. The statute‘s highly visible procedures assure, moreover, that unlike most investigations these will be widely known and prominently displayed. Thus, in the 10 years since the institution of the independent counsel was established by law, there have been nine highly publicized investigations, a source of constant political damage to two administrations. That they could not remotely be described as merely the application of “normal” investigatory and prosecutory standards is demonstrated by, in addition to the language of the statute (“no reasonable grounds to believe“), the following facts: Congress appropriates approximately $50 million annually for general legal activities, salaries, and expenses of the Criminal Division of the Department of Justice. See 1989 Budget Request of the Department of Justice, Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., pt. 6, pp. 284-285 (1988) (DOJ Budget Request). This money is used to support “[f]ederal appellate activity,” “[o]rganized crime prosecution,” “[p]ublic integrity” and “[f]raud” matters, “[n]arcotic & dangerous drug prosecution,” “[i]nter-nal security,” “[g]eneral litigation and legal advice,” “special investigations,” “[p]rosecution support,” “[o]rganized crime drug enforcement,” and “[m]anagement & administration.” Id., at 284. By comparison, between May 1986 and August 1987, four independent counsel (not all of whom were operating for that entire period of time) spent almost $5 million (one-tenth of the amount annually appropriated to the entire Criminal Division), spending almost $1 million in the month of August 1987 alone. See Washington Post, Oct. 21, 1987, p. A21, col. 5. For fiscal year 1989, the Department of Justice has requested $52 million for the entire Criminal Division, DOJ Budget Request 285, and $7 million to support the activities of independent counsel, id., at 25.
In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the
III
As I indicated earlier, the basic separation-of-powers principles I have discussed are what give life and content to our jurisprudence concerning the President‘s power to appoint and remove officers. The same result of unconstitutionality is therefore plainly indicated by our case law in these areas.
“[The President] shall nominate, and by and with the Advice and Consent of the the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Depаrtments.”
Because appellant (who all parties and the Court agree is an officer of the United States, ante, at 671, n. 12) was not appointed by the President with the advice and consent of the Senate, but rather by the Special Division of the United States Court of Appeals, her appointment is constitutional only if (1) she is an “inferior” officer within the meaning of the above Clause, and (2) Congress may vest her appointment in a court of law.
As to the first of these inquiries, the Court does not attempt to “decide exactly” what establishes the line between
The first of these lends no support to the view that appellant is an inferior officer. Appellant is removable only for “good cause” or physical or mental incapacity.
The second reason offered by the Court—that appellant performs only certain, limited duties—may be relevant to whether she is an inferior officer, but it mischaracterizes the extent of her powers. As the Court states: “Admittedly, the Act delegates to appellant [the] ‘full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.‘” Ibid., quoting
The final set of reasons given by the Court for why the independent counsel clearly is an inferior officer emphasizes the limited nature of her jurisdiction and tenure. Taking the latter first, I find nothing unusually limited about the independent counsel‘s tenure. To the contrary, unlike most high ranking Executive Branch officials, she continues to serve until she (or the Special Division) decides that her work is substantially completed. See
ceive “where necessary to perform [her] duties” the assistance, personnel and resources of the Department of Justice,
That “inferior” means “subordinate” is also consistent with what little we know about the evolution of the Appointments Clause. As originally reported to the Committee on Style, the Appointments Clause provided no “exception” from the standard manner of appointment (President with the advice and consent of the Senate) for inferior officers. 2 M. Farrand, Records of the Federal Convention of 1787, pp. 498-499, 599 (rev. ed. 1966). On September 15, 1787, the last day of the Convention before the proposed Constitution was signed, in the midst of a host of minor changes that were being considered, Gouverneur Morris moved to add the exceptions clause. Id., at 627. No great debate ensued; the only disagreement was over whether it was necessary at all. Id., at 627-628. Nobody thought that it was a fundamental change, excluding from the President‘s appointment power and the Senate‘s confirmation power a category of officers who might function on their own, outside the supervision of those appointed in the more cumbersome fashion. And it is significant that in the very brief discussion Madison mentions (as in apparent contrast to the “inferior officers” covered by the provision) “Superior Officers.” Id., at 637. Of course one is not a “superior officer” without some supervisory responsibility, just as, I suggest, one is not an “inferior officer” within the meaning of the provision under discussion unless one is subject to supervision by a “superior officer.” It is perfectly obvious, therefore, both from the relative brevity of the discussion this addition received, and from the content of that discussion, that it was intended merely to make clear (what Madison thought already was clear, see id., at 627) that those officers appointed by the President with Senate
This interpretation is, moreover, consistent with our admittedly sketchy precedent in this area. For example, in United States v. Eaton, 169 U.S. 331 (1898), we held that the appointment by an Executive Branch official other than the President of a “vice-consul,” charged with the duty of temporarily performing the function of the consul, did not violate the Appointments Clause. In doing so, we repeatedly referred to the “vice-consul” as a “subordinate” officer. Id., at 343. See also United States v. Germaine, supra, at 511 (comparing “inferior” commissioners and bureau officers to heads of department, describing the former as “mere . . . subordinates“) (dicta); United States v. Hartwell, supra, at 394 (describing clerk appointed by Assistant Treasurer with approval of Secretary of the Treasury as a “subоrdinate office[r]“) (dicta). More recently, in United States v. Nixon, 418 U.S. 683 (1974), we noted that the Attorney General‘s appointment of the Watergate Special Prosecutor was made pursuant to the Attorney General‘s “power to appoint subordinate officers to assist him in the discharge of his duties.” Id., at 694 (emphasis added). The Court‘s citation of Nixon as support for its view that the independent counsel is an inferior officer is simply not supported by a reading of the case. We explicitly stated that the Special Prosecutor was a “subordinate office[r],” ibid., because, in the end, the President or the Attorney General could have removed him at any time, if by no other means than amending or revoking the regulation defining his authority. Id., at 696. Nor are any of the other cases cited by the Court in support of its view inconsistent with the natural reading that an inferior officer must at least be subordinate to another officer of the United States. In Ex parte Siebold, 100 U.S. 371 (1880), we upheld the appointment by a court of federal “Judges of Election,” who were charged with various duties involving the oversee-
To be sure, it is not a sufficient condition for “inferior” officer status that one be subordinate to a principal officer. Even an officer who is subordinate to a department head can be a principal officer. That is clear from the brief exchange following Gouverneur Morris’ suggestion of the addition of the exceptions clause for inferior officers. Madison responded:
“It does not go far enough if it be necessary at all—Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices.” 2 M. Farrand, Records of the Federal Convention, of 1787, p. 627 (rev. ed. 1966) (emphasis added).
But it is surely a necessary condition for inferior officer status that the officer be subordinate to another officer.
The independent counsel is not even subordinate to the President. The Court essentially admits as much, noting that “appellant may not be ‘subordinate’ to the Attorney Gen-
Because appellant is not subordinate to another officer, she is not an “inferior” officer and her appointment other than by the President with the advice and consent of the Senate is unconstitutional.
IV
I will not discuss at any length why the restrictions upon the removal of the independent counsel also violate our established precedent dealing with that specific subject. For most of it, I simply refer the reader to the scholarly opinion of Judge Silberman for the Court of Appeals below. See In re Sealed Case, 267 U. S. App. D. C. 178, 838 F. 2d 476 (1988). I cannot avoid commenting, however, about the essence of what the Court has done to our removal jurisprudence today.
There is, of course, no provision in the Constitution stating who may remove executive officers, except the provisions for removal by impeachment. Before the present decision it was established, however, (1) that the President‘s power to remove principal officers who exercise purely executive powers could not be restricted, see Myers v. United States, 272 U. S. 52, 127 (1926), and (2) that his power to remove inferior officers who exercise purely executive powers, and whose appointment Congress had removed from the usual procedure of Presidential appointment with Senate consent, could be restricted, at least where the appointment had been made by
The Court could have resolved the removal power issue in this case by simply relying upon its erroneous conclusion that the independent counsel was an inferior officer, and then extending our holding that the removal of inferior officers appointed by the Executive can be restricted, to a new holding that even the removal of inferior officers appointed by the courts can be restricted. That would in my view be a considerable and unjustified extension, giving the Executive full discretion in neither the selection nor the removal of a purely executive officer. The course the Court has chosen, however, is even worse.
Since our 1935 decision in Humphrey‘s Executor v. United States, 295 U. S. 602—which was considered by many at the time the product of an activist, anti-New Deal Court bent on reducing the power of President Franklin Roosevelt—it has been established that the line of permissible restriction upon removal of principal officers lies at the point at which the powers exercised by those officers are no longer purely executive. Thus, removal restrictions have been generally regarded as lawful for so-called “independent regulatory
One can hardly grieve for the shoddy treatment given today to Humphrey‘s Executor, which, after all, accorded the same indignity (with much less justification) to Chief Justice
V
The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive.
Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation. Justice Robert Jackson, when he was Attorney General under President Franklin Roosevelt, described it in a memorable speech to United States Attorneys, as follows:
“There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn‘t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff will be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on
any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain. “If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking fоr the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.” R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940.
Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a rea-
That is the system of justice the rest of us are entitled to, but what of that select class consisting of present or former high-level Executive Branch officials? If an allegation is made against them of any violation of any federal criminal law (except Class B or C misdemeanors or infractions) the Attorney General must give it his attention. That in itself is not objectionable. But if, after a 90-day investigation without the benefit of normal investigatory tools, the Attorney General is unable to say that there are “no reasonable grounds to believe” that further investigation is warranted, a process is set in motion that is not in the full control of persons “dependent on the people,” and whose flaws cannot be blamed on the President. An independent counsel is selected, and the scope of his or her authority prescribed, by a
I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution—a vindictive prosecutor, an antagonistic staff, etc. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished.
The above described possibilities of irresponsible conduct must, as I say, be considered in judging the constitutional acceptability of this process. But they will rarely occur, and in the average case the threat to fairness is quite different. As described in the brief filed on behalf of three ex-Attorneys General from each of the last three administrations:
“The problem is less spectacular but much more worrisome. It is that the institutional environment of the Independent Counsel—specifically, her isolation from the Executive Branch and the internal checks and balances it supplies—is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests.” Brief for Edward
H. Levi, Griffin B. Bell, and William French Smith as Amici Curiae 11.
It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uniform application of the law. Perhaps that is not always achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile—with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it.
* * *
The notion that every violation of law should be prosecuted, including—indeed, especially—every violation by those in high places, is an attractive one, and it would be risky to argue in an election campaign that that is not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value, and it
Worse than what it has done, however, is the manner in which it has done it. A government of laws means a government of rules. Today‘s decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the “totality of the circumstances” mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much. That opinion, like this one, will not be confined by any rule. We will describe, as we have today (though I hope more accurately) the effects of the provision in question, and will authoritatively announce: “The President‘s need to control the exercise of the [subject officer‘s] discretion is so central to the functioning of the Executive Branch as to require complete control.” This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that—as the text of
The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite рlainly, that “[t]he executive Power shall be vested in a President of the United States.”
Notes
“(1) conducting proceedings before grand juries and other investigations;
“(2) participating in court proceedings and engaging in any litigation, including civil and criminal matters, that [the] independent counsel deems necessary;
“(3) appealing any decision of a court in any case or proceeding in which [the] independent counsel participates in an official capacity;
“(4) reviewing all documentary evidence available from any source;
“(5) determining whether to contest the assertion of any testimonial privilege;
“(6) receiving appropriate national security clearances and, if necessary contesting in court . . . any claim of privilege or attempt to withhold evidence on grounds of national security;
“(7) making applications to any Federal court for a grant of immunity to any witness . . . or for warrants, subpoenas, or other court orders, and for purposes of sections 6003, 6004, and 6005 of title 18, exercising the authority vested in a United States attorney or the Attorney General;
“(8) inspecting, obtaining, or using the original or a copy of any tax return . . . ;
“(9) initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case filed in the name of the United States; and
“(10) consulting with the United States Attorney for the district in which the violation was alleged to have occurred.”