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Jeremy Brooks 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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