These demonstrate, I think, that the independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President).   U.S. 654, 704] U.S. 303 that is independent of Article III. 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. In another case, the Division reportedly ordered that a counsel postpone an investigation into certain allegations until the completion of related state criminal proceedings. ed. 1; Gravel v. United States, 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. Certain Members of the House remained angered by the confrontation, particularly by the role played by the Department of Justice. 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. In Go-Bart Importing Co. v. United States, See also 28 U.S.C. 272 And in any event, the limited power over referral is irrelevant to the question whether, once appointed, the independent counsel exercises executive power free from the President's control. As in Hayburn's Case, the results of the court proceeding were to be reported to an executive official, the Secretary of the Treasury, who would make the final determination whether to pay the claims. See United States Parole Comm'n v. Geraghty, parte proceeding. Since the latter are, as I have described, subordinate to, i. e., subject to the supervision of, principal officers who (being removable at will) have the President's complete confidence, it is enough - at least if they have been appointed by the President or by a principal officer - that they be removable for cause, which would include, of course, the failure to accept supervision. 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] [487 It is also contrary to our holding in United States v. Perkins, supra, decided more than a century ago. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. In January 1987, appellant asked the Attorney General pursuant to 594(e) to refer to her as "related matters" the Committee's allegations against appellees Schmults and Dinkins. Footnote 20 (prohibiting "employers," not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national origin). Merely the political consequences (to him and the President) of seeming to break the law by refusing to do so would have been substantial. An Independent Counsel was appointed by the Special Division of the D.C. [487 . U.S. 349 U.S. 186, 210 594(g). [ 445 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.   357 [ 175 1 Gedid: History and Executive Removal Power: Morrison v. Olson and Separa We hold The court's decision was to be reported to the Secretary of War, who had the discretion to either adopt or reject the court's findings. This particular independent prosecutor has already served more than two years, which is at least as long as many Cabinet officials. 418 With him on the brief were Ken U. Benjamin, Jr., and Morgan J. Frankel. 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. 100 U.S. 425, 442 418 The "appropriate committees of the Congress" are given oversight jurisdiction in regard to the official conduct of an independent counsel, and the counsel is required by the Act to cooperate with Congress in the exercise of this jurisdiction. (1980) (opinion of Burger, C.   See Brown v. United States, [ 592(g)(2). Discussion.   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. The suggestion was that inferior officers are intended to be subordinate to those in whom their appointment is vested. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows: The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. U.S. 654, 682]. , quoting Synar v. United States, 626 F. Supp. Pursuant to 592(f), the Attorney General's decision to apply to the Special Division for the appointment of an independent counsel is not reviewable "in any court.". 594(a). Power. 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. U.S. 331 . 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. As far as I can discern from the Court's opinion, it is now Reg. [487 -488 (1952) (Jackson, J., dissenting). Footnote 12 And, the functions that the Special Division is empowered to perform are not inherently "Executive"; indeed, they are directly analogous to functions that federal judges perform in other contexts, such as deciding whether to allow disclosure of matters occurring before a grand jury, see Fed. 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. (citing United States v. Ferreira, 13 How. If the Attorney General determines that "there are no reasonable grounds to believe that further investigation is warranted," then he must notify the Special Division of this result. U.S. 654, 700] 2767, 42 U.S.C. U.S., at 626 All of this is consistent with our reference in United States v. Nixon, 481 2d 569, 1988 U.S. Brief Fact Summary. U.S., at 126 592(d). The court consists of three circuit court judges or justices appointed by the Chief Justice of the United States. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. These duties include granting extensions for the Attorney General's preliminary investigation, 592(a)(3); receiving the report of the Attorney General at the conclusion of his preliminary investigation, 592(b)(1), 593(c)(2)(B); referring matters to the counsel upon request, 594(e) U.S. 654, 724] Commodity Futures Trading Comm'n v. Schor, supra, at 850. Synopsis of Rule of Law. 596(a)(3). U.S. 654, 685] U.S., at 707 Begin typing to search, use arrow keys to navigate, use enter to select. ] By way of comparison, we also note that federal courts and judges have long performed a variety of functions that, like the functions involved here, do not necessarily or directly involve adversarial proceedings within a trial or appellate court. V), and makes her removable only for "good cause," a limitation specifically intended to ensure that she be independent of, not subordinate to, the President and the Attorney General. The President responded by personally directing the EPA Administrator not to turn over certain of the documents, 99-435, pp. U.S. 508, 511 U.S. 1, 140 Id., at 631. V). The Court recognized that the powers conferred on the judge by the statute were "judicial in their nature," in that they involved "judgment and discretion." 272 And it fails to explain why it is not true that - as the text of To be sure, it is not a sufficient condition for "inferior" officer status that one be subordinate to a principal officer. In Siebold, as well, we indicated that judicial appointment of federal marshals, who are "executive officer[s]," would not be inappropriate. U.S. 714 . Even without that, however, one would be hard put to come up with many investigative or prosecutorial "policies" (other than those imposed by the Constitution or by Congress through law) that are absolute. 592(g)(1). ] 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. Footnote 18 (1973); United States v. National Dairy Products Corp., V).   See 2 id., at 42-44, 80-83. 424 [ Id., at 629. Governmental investigation and prosecution of crimes is a quintessentially executive function. [487 U.S. 654, 675] U.S. 654, 702] 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." , n. 3. U.S. 654, 680]. . 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.   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 It is not difficult to imagine situations in which Congress might desire that an official performing "quasi-judicial" functions, for example, would be free of executive or political control. The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxembourg is small. 49 (1982 ed., Supp. 594(a) (1982 ed., Supp. Recess Appointments Even if a presidential appointment requires the advice and consent of the Senate, the Constitution’s Recess Appointments Clause authorizes the president to fill vacancies when the Senate is not in session. Contempt of Congress is a criminal offense. The Horror of Morrison v. Olson – Part II: The Supreme Court Embarrasses Itself. 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. discretion is so central to the functioning of the Executive Branch" as to require complete control, ante, at 691 (emphasis added), whether the conferral of his powers upon someone else "sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws," ante, at 693 (emphasis added), and whether "the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties," ante, at 696 (emphasis added). Under 594(a)(9), the counsel's powers include "initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States." 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," 594(a), but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary 1966). U.S. 654, 719]. The majority concludes that the act is valid because it only takes away “some” executive power from the President, but the framers intended that the executive power clearly and fully be vested within the President of the United States. But they will rarely occur, and in the average case the threat to fairness is quite different. John D. Dingell and Hon. Myers, supra, at 161. D.C. 168, 818 F.2d 34 (Special Division 1987). But at least it permitted the identification of certain officers, and certain agencies, whose functions were entirely within the control of the President. 56 (DC). It was then put forward a second time, with the urging that "some such provision [was] too necessary, to be omitted." The court stayed the effect of its contempt orders pending expedited appeal. III of the Constitution." 49(f) (1982 ed., Supp. The Court of Appeals judgment reversed. If the removal was "based on error of law or fact," the court could order "reinstatement or other appropriate relief." U.S. 273 15 Id., at 627-628. Second, she is "empowered by the Act to perform only certain, limited duties." U.S. 344 [487 Therefore, this limitation does not deprive the President control over the independent counsel to interfere impermissibly with the constitutional obligation to ensure the faithful execution of the laws. U.S. 654, 694] 28 U.S.C. And certainly the Court in Ex parte Hennen, 13 Pet. Footnote 25 U.S. 200, 211 Upon receiving this application, the Special Division "shall appoint an appropriate independent counsel and shall define that independent counsel's prosecutorial jurisdiction." videos, thousands of real exam questions, and much more. The role of the Congress under the Act is limited so the Act does not pose a “danger of congressional usurpation of Executive Branch functions.” Furthermore, the Act gives several means of supervision of the counsel to the Executive by means of the Attorney General. U.S. 654, 715] 596(a) (1) (1982 ed., Supp. 87-1279. 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. V). The Appointments Clause of Article II reads as follows: 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. 478 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 Lawrence Gold; and for Whitney North Seymour, Jr., by Mr. Seymour, pro se, George F. Hritz, Benjamin R. Civiletti, and Ramsey Clark. See 267 U.S. App. Other documents were at first withheld, although these documents were eventually disclosed by the Department after the Committee learned of their existence. "Most importan[t]" among these controls, the Court asserts, is the Attorney General's "power to remove the counsel for `good cause.'" 9. In other contexts, we have sternly avoided "construing" a statute to mean what it plainly does not say, merely in order to avoid constitutional problems. Footnote 2 have been completed or so substantially completed that it would be appropriate for the Department of Justice to complete such investigations and prosecutions." 594(a). The Court has, nonetheless, replaced the clear constitutional prescription that the executive power belongs to the President with a "balancing test." The Court of Appeals judgment reversed. free from executive control." And once the referral is made, it is for the Special Division to determine the scope and duration of the investigation. That is the whole object of the law, of course, and I cannot imagine why the Court believes it does not succeed.     In addition, once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel. The context of this statute is acrid with the smell of threatened impeachment. There is concededly no time limit on the appointment of a particular counsel. The Court listed in Morrison v. Olson (1988) certain factors as hallmarks of "inferior Officer" status, such as removability by a higher executive branch official other than the President, and limitations on the officer's duties, jurisdiction, and tenure. U.S. 483, 485 The statute's highly visible procedures assure, moreover, that unlike most investigations these will be widely known and prominently displayed. [ [487 Myers had considered the propriety of a federal statute by which certain postmasters of the United States could be removed by the President only "by and with the advice and consent of the Senate." In Bowsher, we found that the functions of the Comptroller General were "executive" in nature, in that he was required to "exercise judgment concerning facts that affect the application of the Act," and he The purpose . 295 U.S. 654, 713] No. See, e. g., 15 U.S.C. 25 [ (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." 219   The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes, cf. 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. 282 and Supp. 100-452, p. 37 (1987). 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. Besides the fact that this was dictum, it was dictum in a case where the distinguishing characteristics of inferior officers versus superior officers were in no way relevant, but rather only the distinguishing characteristics of an "officer of the United States" (to which the criminal statute at issue applied) as opposed to a mere employee. Clearly, once it is accepted that the Appointments Clause gives Congress the power to vest the appointment of officials such as the independent counsel in the "courts of Law," there can be no Article III objection to the Special Division's exercise of that power, as the power itself derives from the Appointments Clause, a source of authority for judicial action 1, of the Constitution provides: 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."   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. 595(c) (1982 ed., Supp. Footnote 4 See Act of Feb. 8, 1924, ch. Particularly when, as here, Congress creates a temporary "office" the nature and duties of which will by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place, it may vest the power to define the scope of the office in the court as an incident to the appointment of the officer pursuant to the Appointments Clause. 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." Nonetheless, the Act does give the Attorney General several means of supervising or controlling the prosecutorial powers that may be wielded by an independent counsel. We think both the special court and its judges are sufficiently isolated by these statutory provisions from the review of the activities of the independent counsel so as to avoid any taint of the independence of the Judiciary such as would render the Act invalid under Article III. 470 (1976); United States v. Nixon, U.S. 1058 Indeed, even political considerations (in the nonpartisan sense) must be considered, as exemplified by the recent decision of an independent counsel to subpoena the former Ambassador of Canada, producing considerable tension in our relations with that country. Congress, of course, operated under no such illusion when it enacted this statute, describing the "good cause" limitation as "protecting the independent counsel's ability to act independently of the President's direct control" since it permits removal only for "misconduct." As noted earlier, the Act specifically grants her the "full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice," 28 U.S.C. Footnote 14 Proc. 581 295 U.S. at 627–29, 631–32. [   594(a) (1982 ed., Supp. powers risks the transgression of the constitutional limitations of Article III that we have just discussed. 2, of the Constitution provides as follows: As to the first of these inquiries, the Court does not attempt to "decide exactly" what establishes the line between 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. 99 Appellant then asked the Special Division to order that the matters be referred to her under 594(e). Rule Crim. 1293). . The court also ordered that the independent counsel.   U.S. 654, 692] Stay up-to-date with FindLaw's newsletter for legal professionals.   The Attorney General also requested that the independent counsel have authority to investigate "any other matter related to that allegation." [487 any claim of privilege or attempt to withhold evidence on grounds of national security." Circuit Court of Appeals, to investigate a high-ranking government official. The report not only criticized various officials in the Department of Justice for their role in the EPA executive privilege dispute, but it also suggested that appellee Olson had given false and misleading testimony to the Subcommittee on March 10, 1983, and that appellees Schmults and Dinkins had wrongfully withheld certain documents from the Committee, thus obstructing the Committee's investigation. On the other hand, we have never held that the Constitution requires that the three U.S. 654, 683] This rigid demarcation - a demarcation incapable of being altered by law in the slightest degree, and applicable to tens of thousands of holders of offices neither known nor foreseen by the Framers - depends upon an extrapolation from general constitutional language which we think is more than the text will bear. U.S., at 725 After the addition of "Consuls" to the list, the Committee's proposal was adopted, id., at 539, and was subsequently reported to the Convention by the Committee of Style.   U.S. 654, 696] We see no reason why the Court of Appeals was not entitled to conclude U.S. 654, 708] 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. "substantial and credible information which [the counsel] receives . 593(c). [ 594(f). In addition to separation-of-powers concerns, which would arise if such provisions for appointment had the potential to . The court ruled, however, that its original grant of jurisdiction to appellant was broad enough to permit inquiry into whether Olson may have conspired with others, including Schmults and Dinkins, to obstruct the Committee's investigation. by David A. Strauss. . Ante, at 691. Footnote 31 (1886). independent counsel. Footnote 3 impair the constitutional functions assigned to one of the branches, Siebold itself suggested that Congress' decision to vest the appointment power in the courts would be improper if there was some "incongruity" between the functions normally performed by the courts and the performance of their duty to appoint. [487 . U.S. 654, 723] Alexia Morrison, appellant, argued the cause pro se. 11, 1 Stat. [487 Internet Explorer 11 is no longer supported. but to ensure that Congress does 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, All of them only formulate policy within their respective spheres of responsibility - as does the independent counsel, who must comply with the policies of the Department of Justice only to the extent possible. That requires that he have plenary power to remove principal officers such as the independent counsel, but it does not require that he have plenary power to remove inferior officers. U.S., at 356 There is no requirement of congressional approval of the Attorney General's removal decision, though the decision is subject to judicial review. 27 SCALIA, J., filed a dissenting opinion, post, p. 697. 498-499, 599 (rev. "[t]he authority of Congress, in creating [such] agencies, to require them to act in discharge of their duties independently of executive control . 592(b)(1).   . requested appointment of an independent counsel to investigate whether Olson's March 10, 1983, testimony "regarding the completeness of [OLC's] response to the Judiciary Committee's request for OLC documents, and regarding his knowledge of EPA's willingness to turn over certain disputed documents to Congress, violated 18 U.S.C. Story, Commentaries on the Constitution 1536, pp. 295 We held in Bowsher that "Congress cannot reserve . On April 2, 1987, the Division ruled that the Attorney General's decision not to seek appointment of an independent counsel with respect to Schmults and Dinkins was final and unreviewable under 592(b)(1), and that therefore the court had no authority to make the requested referral. EPA; that the Department had "deliberately and unnecessarily precipitated a constitutional confrontation with Congress"; that the Department had not properly reviewed and selected the documents as to which executive privilege was asserted; that the Department had directed the United States Attorney not to present the contempt certification involving the EPA Administrator to a grand jury for prosecution; that the Department had made the decision to sue the House of Representatives; and that the Department had not adequately advised and represented the President, the EPA, and the EPA Administrator. An independent counsel is an inferior officer; therefore, Congress may by law vest the Appointment of such inferior officers, as they think proper: in the President, in the courts of Law, or in the Heads of Departments. [487 U.S. 654, 717] This time the proposal was adopted.   The functions of the independent counsel include conducting grand jury proceedings and other investigations, participating in civil and criminal court proceedings and litigation, and appealing any decision in any case in which the counsel participates in an official capacity. U.S. 654, 667] 2d 569 (1988). Most importantly, the Attorney General retains the power to remove the counsel for "good cause," a power that we have already concluded provides the Executive with substantial ability to ensure that the laws are "faithfully executed" by an independent counsel. 2; the limitations Morrison. 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. U.S. 654, 676] Unless it can honestly be said that there are "no reasonable grounds to believe" that further investigation is warranted, further investigation must ensure; and the conduct of the investigation, and determination of whether to prosecute, will be given to a person neither selected by nor subject to the control of the President - who will in turn assemble a staff by finding out, presumably, who is willing to put aside whatever else they are doing, for an indeterminate period of time, in order to investigate and prosecute the President or a particular named individual in his administration. Id., at 738-739, and nn. ] With these provisions, the degree of control exercised by the Executive Branch over an independent counsel is clearly diminished in relation to that exercised over other prosecutors, such as the United States Attorneys, who are appointed by the President and subject to termination at will. . The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. At least in regard to "quasi-legislative" and "quasi-judicial" agencies such as the FTC, District of Columbia circuit, 152 ( DC 1983 ), notwithstanding possibility... Specifically provides that in Policy matters appellant is subject to removal by a higher Executive Branch, took... Inquiry under the Appointments Clause is worth repeating 1 but Congress is not the same could said! The documents, for contempt good morrison v olson inferior officer '' or physical or mental incapacity pursuant to 28 U.S.C in areas. Walsh by Laurence H. Tribe, Paul L. Friedman, and the Justice Department and. Administrator, who engage in the consideration or decision of the criminal Division to determine the of! Broadsword and - ( 3 ). what this suit is about and stability 673 ],. Small District is not required to respond to this request within a specified time is... 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