The Ethics in Government
Act of 1978 (also known as 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 laws.
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.
Constitutional lawyer Ted
Olson, who was being investigated under the Ethics in Government Act, had attempted to argue that the independent
counsel took executive powers away from the office of the
President and created 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 upheld
the law.
The Supreme Court held that
the means of selecting the independent counsel did not violate the Appointments
Clause; the powers allocated to the
special court did not violate Article III; and the Act
didn't violate the separation of powers doctrine since it did not impermissibly interfere with
the functions of the Executive Branch.
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 Supreme Court felt that
the Act did not violate the separation of powers 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 Courts.
The person was appointed by
the Judicial Branch. How can the Judicial Branch appoint an Executive
Branch official? And how does this decision compare with Myers v.
United States (272 U.S. 52 (1926))?
In a lone dissent, Justice
Scalia, said that the law had to be struck down because:
First, criminal prosecution
is an exercise of "purely executive power" as guaranteed in the
Constitution.
Second, the law deprived the
president of exclusive control of
that power. Scalia, 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.
Scalia may have been right.
Since it's inception, the law has been used for many partisan purposes.
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.
