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THE ROLE OF SPECIAL INDEPENDENT COUNSEL STATUTES: landmark effort to instill public confidence in the fair and ethical behavior of public officials

On Behalf of | Jun 9, 2018 | Firm News

Currently, the US attorney general can remove the special counsel “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies.” Because Attorney General Jeff Sessions has recused himself from the investigation, in Mueller’s case, the power falls in the hands of Deputy Attorney General Rod Rosenstein. There is no way for a special counsel to challenge that decision, even if there’s a case for wrongful termination.

In the 1988 Supreme Court case Morrison v. Olson, 487 U.S. 654 (1988) it was held that the Independent Counsel Act was constitutional.  The Court held that the independent counsel provision of the Ethics in Government Act did not violate the principle of separation of powers because it did not increase the power of one branch at the expense of another. Instead, even though the President could not directly fire an Independent Counsel, the person holding that office was still an officer of the Executive branch and not under the control of either the U.S. Congress or the courts.  It was a 7-1 decision that upheld the Independent Counsel Act — a statute passed in the wake of Nixon’s firing of the Watergate special prosecutor that created an investigator role completely independent from the executive branch. Justice Antonin Scalia was the single dissent on the case, arguing that the independent counsel was a clear disruption of the separation of powers.

Despite the Court’s decision upholding the role of an independent counsel, Congress allowed the act to expire in 1999. In its place, there’s the special counsel, the role Mueller holds, which is largely the same on the merits but is not separate from the administration — the cause for a lot of debate among legal scholars.

Shortly before that, In Re Sealed Case, 665 F. Supp. 56 (D.D.C. 1987) ruled for the first time that the independent-counsel law underpinning an unprecedented number of investigations of Reagan administration figures in the Iran-Contra affair was constitutional.  U.S. District Court Judge Aubrey E. Robinson Jr. said the legislation was an appropriate and measured response by Congress “to the recurrent question of how to enforce the laws of the United States when they are violated by high government officials . . . .”For the United States,” Robinson added, “the act represents a landmark effort to instill public confidence in the fair and ethical behavior of public officials.”

It was also argued that the independent counsels are “superior officers” who, under the Constitution, must be appointed by the president and confirmed by the Senate.  Judge Robinson rejected the argument. The Constitution, he wrote, “expressly grants to Congress the authority to ‘vest the appointment of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments.’ ”
The Congress’s limits on the Attorney General’s authority to remove an independent counsel was also valid for another reason. In United States v. Perkins, 116 U.S. 483, 485, 6 S. Ct. 449, 450 (1886), the Court upheld the power of Congress to place limitations on the Secretary of the Navy’s authority to dismiss naval cadets who were inferior officers appointed by the Secretary.

The Court wrote:
We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to officers so appointed.

Id. at 485, 6 S. Ct. at 450.  Here, because Congress validly vested the appointment of independent counsels in the court of law under Article II, it also validly limited the circumstances under which independent counsels may be removed.

Finally, Judge Robinson explained that “Supreme Court precedent as well as “common sense and the inherent necessities of the governmental coordination” suggest strongly that the authority of independent counsels does not violate the separation of powers principle. In United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court recognized and accepted that “the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.” Id. at 694, 94 S. Ct. at 3100. The Court knew that this authority included “plenary authority to control the course of investigation and litigation related to” the Watergate matter. Id. at 694, n. 8, 94 S. Ct. at 3100, n. 8 (citing 38 Fed.Reg. 30739, as amended by 38 Fed. Reg. 32805).

Although the Watergate Special Prosecutor was appointed by a regulation promulgated by the Attorney General, the Court’s acceptance of the constitutionality of an independent prosecutor is equally applicable here. In both cases, inferior officers were freed from daily supervision by the  Executive so that they could best perform their duties and thereby satisfy congressional intent. See also, Kendall v. United States, 37 U.S. (12 Pet.) 524, 9 L. Ed. 1181 (1837); Humphrey’s Executor, 295 U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935); Wiener v. United States, 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d 1377 (1958). Here, as in the above-cited cases, the Independent Counsel’s power comports with the Constitution.”