The Ethics in Government
Act of 1978 (aka the Independent
Counsel Act) created a special court
and empowered the Attorney General to recommend to that court the
appointment of an independent counsel to investigate, and
prosecute government officials for certain violations of Federal criminal
An independent counsel could not be fired except for cause.
The appointment was not by
the President, and was not subject to the approval of Congress.
And independent counsel was appointed to investigate Olson. Olson
argued that the Ethics in Government Act was
Olsen argued that that the independent
counsel violated the Appointments
Clause because it was an executive
branch office that was not appointed by the President.
In addition, it was a violation
of Article III and the separation of powers doctrine because it gave
judicial powers to a court created by the executive branch.
It was sort of a hybrid
"fourth branch" of government that was ultimately answerable
to no one.
Olsen argued that the broad
powers of the independent counsel
could be easily abused, or corrupted by partisanship.
The US Supreme Court found the
Ethics in Government Act to be
The US Supreme Court found
that the means of selecting the independent counsel did not violate the
Appointments Clause, Article III, or the separation of powers doctrine
since it did not impermissibly interfere with the functions of the
Since the independent
counsel was an inferior officer, his
appointment did not have to come from the President.
Since the independent
counsel could only be fired for
cause, subject to judicial review, it's a pretty secure position. The
President can fire the Attorney General at will. So, it could be argued
that the independent counsel
was a principle officer, and should only be appointed by the President.
The Court felt that the Act
did not violate the separation of powers doctrine by increasing the power
of one branch at the expense of another. Instead, even though the
President could not directly fire the independent counsel, the person holding that office was still an
Executive Branch officer, not under the control of either Congress or the
If the special court was
considered part of the Judicial Branch, how could they appoint an
Executive Branch official? And how does this decision compare with Myers
v. United States (272 U.S. 52
In a dissent, it was argued
that the law had to be struck down because:
Criminal prosecution is an
exercise of "purely executive power" as guaranteed in the
The law deprived the
president of exclusive control of that power. The dissent also predicted
how the law might be abused in practice, writing, "I fear the Court
has permanently encumbered the Republic with an institution that will do
it great harm."
The independent counsel basically has no accountability to anybody,
and therefore was subject to overzealousness.
The dissent may have been
right. Since it's inception, the law has been used for many partisan
There is no remedy, even a
political one, for dealing with a highly partisan independent counsel intent on bringing someone they don't agree
with down (e.g. Ken Starr)
Compare this case to Bowsher
v. Synar (478 U.S. 714 (1986)).
In that case, the Court
concluded that Congress couldn't be involved in Executive Branch
functions, although they could appoint Executive Branch officers. In this
case, they concluded that the Judiciary could appoint Executive Branch
officers, as long as they didn't meddle with their function.