The Federalist Society

The Independent Counsel Act: An Unconstitutional Delegation of Power of Judges

Federalism & Separation of Powers Practice Group Newsletter - Volume 3, Issue 1, Spring 1999

July 1, 1999

Jeremy B. Rosen

A defense lawyer for one of the targets of a federal independent counsel probe gave a harsh review of that independent counsel by noting that "[h]is young attorneys lead him by the nose everywhere. He sees himself as some sort of purist, a puritanical figure cleansing government. His office is an outrage." That same independent counsel was also bitterly attacked by members of the same political party as his targets for purportedly engaging in a partisan investigation that resulted in partisan indictments. An attorney for another of the targets of that probe, Robert Bennett, attacked the lengthy and expensive investigation by noting that "[t]he trouble with the independent counsel's office is that there are no checks and balances… They have an unlimited budget and unlimited time. Too much depends on the integrity and judgement of the person who does the job." These statements could have easily been pulled form recent headlines, but instead they all refer to the independent counsel investigation of Lawrence Walsh, including his indictment of former Defense Secretary Caspar Weinberger, only a few days before the 1992 presidential election. See Larry Bensky, "Burying Iran-Contra: President Bush's Christmas Eve pardons effectively finished off the special prosecutor," San Francisco Chronicle, January 17, 1993 at 7/Z1.

At the time, there was not a single objection to the Walsh investigation by then Governor Clinton. In fact, Governor Clinton demanded the appointment of new independent counsels to investigate whether the Bush administration had covered up its pre-war dealings with Iraq and to investigate the search of Clinton's State Department passport files. See Douglas Frantz, "Bush policy toward Iraq emerging as possible Achilles' heel; Clinton-gore campaign seeks to transform President's foreign affairs strength into a vulnerability and undercut the benefit of the military victory in the Persian Gulf war," Los Angeles Times, October 13, 1992 at A5; Stephanie Saul, "Clinton camp praises probe; focus is on White House aides, " Newsday, December 19, 1992 at 11. Today, of course, President Clinton has an entirely different point of view regarding the independent counsel position. As the independent counsel statute expired on June 30, 1999, see 28 U.S.C. § 599, it seems unlikely that the statute will be revived in anything resembling its current form. Both political parties have now seen how an independent counsel can cause political havoc. The recent debate in Congress and in the White House centered on the alleged unfairness of the most recent investigation, and of some prior investigations. Republicans were displeased with Judge Walsh, and the Democrats are mad at Judge Starr. However, the independent counsel statute is but one example of a larger trend that has serious ramifications for our system of government.

The independent counsel statute applies to numerous high ranking executive department officials, including the President and the Vice President. See 28 U.S.C. § 591 (b). The Attorney General is tasked with the responsibility of conducting a preliminary investigation to determine whether or not an appointment of an independent counsel is appropriate. See 28 U.S.C. § 591. Once the Attorney General determines that an independent counsel should be appointed, three federal judges actually appoint the independent counsel and define the scope of that independent counsel's prosecutorial jurisdiction. See 28 U.S.C. § 593 (b). The independent counsel, once appointed, enjoy vast powers including the power: (1) to conduct proceedings before grand juries and other investigations; (2) to participate in court proceedings and engage in any litigation, including civil and criminal matters, that such independent counsel considers necessary; (3) to appeal any decision of a court in any case or proceeding in which such independent counsel participates in an official capacity; (4) to review all documentary evidence available form any source; (5) to determine whether to contest the assertion of any testimonial privilege; (6) to receive appropriate national security clearances and, if necessary, to contest in any court any claim of privilege or attempt to withhold evidence on grounds of national security; (70) to make applications to any federal court for grant of immunity to any witness, consistent with applicable statutory requirements, or for warrants, subpoenas, or other court orders; (8) to inspect, obtain, or use the original or a copy of any tax return; (9) to initiate and conduct prosecutions in any court of competent jurisdiction, framing and signing indictments, filing information, and handling all aspects of any case, in the name of the United States; and (10) to consult with the United States Attorney for the district in which any violation of law with respect to which the independent counsel is appointed with alleged to have occurred. See 28 U.S.C. § 594 (a). To accomplish these duties, the independent counsel may appoint, fix the compensation, and assign the duties of any employees that the independent counsel considers necessary. See 28 U.S.C. § 594(c).

Finally, an independent counsel can only be removed form office, other than by impeachment and conviction, by the personal action of the Attorney General, and only for good cause, physical or mental disability, or any other such condition that substantially impairs the performance of such independent counsel's duties. See 28 U.S.C. § 596(a). Thus, the independent counsel possesses tremendous power and authority, with very little check on his or her power or authority, aside from the panel of three judges that defines his or her jurisdiction.

In 1998, the United States Supreme Court held by an 8-to-1 vote that the independent counsel statute was constitutional. Justice Scalia, in dissent, put forth an extremely cogent and persuasive argument for why the independent counsel statue is not constitutional. Justice Scalia argued that the challenge to the independent counsel is a dispute "about power" and, more specifically, about "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' can effectively be resisted." Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting) (quoting The Federalist No. 51 (James Madison)). Justice Scalia's thesis was that since Article II of the Constitution provides that the executive power shall be vested in a President:

[T]his 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) to 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? Id. at 705.

Justice Scalia noted that the independent counsel in Morrison clearly exercised executive power because "[s]he is vested with the full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice and the Attorney General. Governmental investigation and prosecution of crimes is a quintessentially executive function." Id. at 706 (internal quotation and citation omitted). Justice Scalia further noted that the independent counsel statute "deprives the President of exclusive control over the quintessentially executive activity." Id. Justice Scalia concluded that "[t]he 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." Id. at 727.

The debate over the constitutionality of the independent counsel statute should not be examined in a vacuum. It is but one example of a dangerous trend whereby functions of one branch have been taken away and given to another branch, or to an entity that does not fit within one of the three delineated branches found in the Constitution. Over a the past hundred years, there has been a steady erosion of the strict separation of powers between the three delineated branches of government. See, e.g., Peter Strauss, "The Place of Agencies in Government: Separation of Powers and the Fourth Branch," 84 Colum. L. Rev. 573 (1984). The creation of a vast "fourth branch" of government encompassing the myriad of "independent" administrative agencies that now exist in Washington illustrates that we have left the original text of the Constitution well behind us. See id. at 574-81. These agencies, nominally located in the executive branch, act in legislative, judicial, and executive roles. See id. at 575-77. some of these independent regulatory commissions operate in such a way that they are insulated from both legislative and executive control. See id. at 583-87. These agencies are, arguable, unconstitutional for the same reasons that the Independent Counsel Act should be found to be unconstitutional as well, because they operate outside of the framework of checks and balances set up by the Constitution.

In another eight-to-one decision by the Supreme Court, Mistretta v. United States, Justice Scalia again pointed out a glaring example of a breach of the separation of powers, this time were judges were given legislative power. 488 U.S. 361 (1989). In Mistretta, the Supreme Court affirmed the constitutionality of the Sentencing Reform Act of 1984 which created the United States Sentencing Commission as an independent body in the judicial branch, with the power to legislate binding sentencing guidelines, which establish a range of sentences for all categories of federal offenses that must be imposed by courts. Id. Justice Scalia noted that "I dissent from today's decision because I can find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws." Id. at 413. Justice Scalia argued that there has been a trend:

. . . to treat the Constitution as though it were no more than a generalized prescription that the functions of the Branches should not be commingled too much -- how much is too much to be determined, case-by-case, by this Court. The Constitution is not that. Rather, as its name suggests, it is a prescribed structure, a framework, for the conduct of government. In designing that structure, the Framers themselves considered how much commingling was, in the generality of things, acceptable, and set forth their conclusions in the document. Id at 426.

Both Morrison and Mistretta are examples of the significant non-judicial powers that have been granted to an already too-powerful judiciary. Article III of the United States Constitution states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." U.S. Const. Art. III. The Constitution makes absolutely no provision for the judicial power to extend to selecting special prosecutors or to drafting criminal laws. This point was well made in the D.C. Circuit opinion in Morrison where Judge Silberman wrote an opinion for a divided panel finding that the special prosecutor law was unconstitutional. See In re Sealed Case, 838 F. 2d 476 (D.C. Cir. 1988). Judge Silberman wrote that "[i]ntimate involvement of an Article II court in the supervision and control of a prosecutorial office undermines the status of the judiciary as a neutral forum for the resolution of disputes between citizens and their governments." Id. at 516. Judge Silberman argued that it was important to keep the judiciary from intruding into areas committed to the other branches of government because it "preserves an independent and neutral judiciary relatively removed from the decisions and activities of the other two branches. Discharging tasks other than the deciding of cases and controversies would involve the judges too intimately in the process of policy and thereby weaken confidence in the disinterestedness of their judicatory functions." Id. at 512 (internal citations and quotations omitted).

While it is true that the independent prosecutor deprives the president of his ability to exercise all of his executive powers, the flip side is perhaps more interesting. The Independent counsel Act allows for the judiciary to engage in executive powers of appointment, which, in the end, may be a much more troubling result. Judges have been able to wield considerable influence at critical moments in these independent counsel investigations. For instance, it was a panel of judges that made the decision to expand Kenneth Starr's investigation of Whitewater into the investigation centered around Monica Lewinsky. See Akhil Reed Amar, "Too Much Independence: If Special Prosecutors Are Running Amok, Blame Flaws in the Law," American Lawyer News Service, Oct. 15, 1998. Such a core executive function, to determine the jurisdiction of a prosecutor, should not be left to the decision of three unelected and unaccountable members of the judiciary.

The judiciary is the only unelected and unaccountable branch of government, which means that it is even more important to limit the role that the judiciary should play in political life. If individual citizens have complaints about the actions of the president or any member of Congress, there is a ready remedy to that disagreement, namely, voting them out of office. However, there is no such easy remedy to get rid of an unpopular judge who is exercising non-judicial functions. In general, it is important to have an insulated and life-tenured judiciary precisely because, as a society, we want judges to make decisions based upon the law and not based on the popular prejudices of the times. So long as judges contain their activities to the cases and controversies that the Constitution leaves to them, their independence serves a valuable purpose. But, as judges begin to play a role in prosecution, or in writing the laws that they then enforce, or in any number of other non-judicial activities, we run the risk of being subject to the power of the judiciary, with no ability to check that power.

As a practical matter, it may be unlikely that we will ever go back to a regime that faithfully reads the Constitution. What we must do is be certain that future encroachments on separation of powers are not tolerated, and that the worst examples are stopped. Even the most nominally independent agencies are still subject to political pressure from the two elected branches, at least through the appointment power and the fact that they all have fixed terms. However, once a judge is appointed, unless impeached, there is no way to remove that judge. For many years, judges have been usurping traditional legislative tools, such as ordering tax increases to pay for court-mandated school improvements. See Missouri v. Jenkins, 495 U.S. 33 (1990). Moreover, courts have created questionable "constitutional rights" that they have used as justification to strike down laws passed through the democratic legislative process. See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). With judges already asserting powers for themselves not contemplated by the Constitution, it becomes even more critical that we do not confer additional executive and legislative functions to judges. Accordingly, Congress should let the independent counsel statute expire without an attempt to renew it, on the grounds that the Act unconstitutionally provides executive power to the judiciary.

* Jeremy Brooks Rosen is an Associate at Munger, Tolles & Olson LLP in Los Angeles. During 1997-1998, he clerked for the Honorable Wm. Matthew Byrne, Jr., in the Central District of California. During 1999-2000, he will clerk for the Honorable Ferdinand F. Fernandez in the Ninth Circuit. Mr. Rosen is a graduate of the Duke University School of Law in 1997, receiving a J.D. and a L.L.M. in International and Comparative Law. Mr. Rosen received his B.A. in History and Government from Cornell University in 1993.

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