Alexia Morrison, Independent Counsel v. Theodore B. Olson | 487 US 654 | June 29, 1988 | Griswold Reading Groups


This is the old version of the H2O platform and is now read-only. This means you can view content but cannot create content. You can access the new platform at Thank you.

Alexia Morrison, Independent Counsel v. Theodore B. Olson

Original Creator: lessig Current Version: Griswold Reading Groups
487 U.S. 654
108 S.Ct. 2597
101 L.Ed.2d 569
Alexia MORRISON, Independent Counsel, Appellant,


Theodore B. OLSON, Edward C. Schmults and Carol E.Dinkins.

No. 87-1279.
Argued April 26, 1988.
Decided June 29, 1988.

          Thiscase presents the question of the constitutionality of theindependent counsel provisions of the Ethics in Government Act of1978 (Act). It arose when the House Judiciary Committee began aninvestigation into the Justice Department's role in a controversybetween the House and the Environmental Protection Agency (EPA)with regard to the Agency's limited production of certain documentsthat had been subpoenaed during an earlier House investigation. TheJudiciary Committee's Report suggested that an official of theAttorney General's Office (appellee Olson) had given falsetestimony during the earlier EPA investigation, and that two otherofficials of that Office (appellees Schmults and Dinkins) hadobstructed the EPA investigation by wrongfully withholding certaindocuments. A copy of the report was forwarded to the AttorneyGeneral with a request, pursuant to the Act, that he seekappointment of an independent counsel to investigate theallegations against appellees. Ultimately, pursuant to the Act'sprovisions, the Special Division (a special court created by theAct) appointed appellant as independent counsel with respect toOlson only, and gave her jurisdiction to investigate whetherOlson's testimony, or any other matter related thereto, violatedfederal law, and to prosecute any violations. When a dispute arosebetween independent counsel and the Attorney General, who refusedto furnish as "related matters" the Judiciary Committee'sallegations against Schmults and Dinkins, the Special Divisionruled that its grant of jurisdiction to counsel was broad enough topermit inquiry into whether Olson had conspired with others,including Schmults and Dinkins, to obstruct the EPA investigation.Appellant then caused a grand jury to issue subpoenas on appellees,who moved in Federal District Court to quash the subpoenas,claiming that the Act's independent counsel provisions wereunconstitutional and that appellant accordingly had no authority toproceed. The court upheld the Act's constitutionality, denied themotions, and later ordered that appellees be held in contempt forcontinuing to refuse to comply with the subpoenas. The Court ofAppeals reversed, holding that the Act violated the AppointmentsClause of the Constitution, Art. II, § 2, cl. 2; thelimitations


Page 655


OF articLE III; and the principle of separation of powers byinterfering with the President's authority under Article II.




          1.There is no merit to appellant's contention—based on Blairv. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979,which limited the issues that may be raised by a person who hasbeen held in contempt for failure to comply with a grand jurysubpoena that the constitutional issues addressed by the Court ofAppeals cannot be raised on this appeal from the District Court'scontempt judgment. The Court of Appeals ruled that, becauseappellant had failed to object to the District Court'sconsideration of the merits of appellees' constitutional claims,she had waived her opportunity to contend on appeal thatBlair barred review of those claims. Appellant's contentionis not "jurisdictional" in the sense that it cannot be waived byfailure to raise it at the proper time and place. Nor is it thesort of claim which would defeat jurisdiction in the District Courtby showing that an Article III "Case or Controversy" is lacking.Pp. 669-670.


          2.It does not violate the Appointments Clause for Congress to vestthe appointment of independent counsel in the Special Division. Pp.670-677.


          (a)Appellant is an "inferior" officer for purposes of the Clause,which—after providing for the appointment of certain federalofficials ("principal" officers) by the President with the Senate'sadvice and consent—states that "the Congress may by Law vestthe Appointment of such inferior Officers, as they think proper, inthe President alone, in the Courts of Law, or in the Heads ofDepartments." Although appellant may not be "subordinate" to theAttorney General (and the President) insofar as, under the Act, shepossesses a degree of independent discretion to exercise the powersdelegated to her, the fact that the Act authorizes her removal bythe Attorney General indicates that she is to some degree"inferior" in rank and authority. Moreover, appellant is empoweredby the Act to perform only certain, limited duties, restrictedprimarily to investigation and, if appropriate, prosecution forcertain federal crimes. In addition, appellant's office is limitedin jurisdiction to that which has been granted by the SpecialDivision pursuant to a request by the Attorney General. Also,appellant's office is "temporary" in the sense that an independentcounsel is appointed essentially to accomplish a single task, andwhen that task is over the office is terminated, either by counselherself or by action of the Special Division. Pp. 670-673.


          (b)There is no merit to appellees' argument that, even if appellant isan "inferior" officer, the Clause does not empower Congress toplace the power to appoint such an officer outside the ExecutiveBranch—that


Page 656


is, to make "interbranch appointments." The Clause's language asto "inferior" officers admits of no limitation on interbranchappointments, but instead seems clearly to give Congresssignificant discretion to determine whether it is "proper" to vestthe appointment of, for example, executive officials in the "courtsof Law." The Clause's history provides no support for appellees'position. Moreover, Congress was concerned when it created theoffice of independent counsel with the conflicts of interest thatcould arise in situations when the Executive Branch is called uponto investigate its own high-ranking officers, and the most logicalplace to put the appointing authority was in the Judicial Branch.In light of the Act's provision making the judges of the SpecialDivision ineligible to participate in any matters relating to anindependent counsel they have appointed, appointment of independentcounsels by that court does not run afoul of the constitutionallimitation on "incongruous" interbranch appointments. Pp.673-677.


          3.The powers vested in the Special Division do not violate ArticleIII, under which executive or administrative duties of anonjudicial nature may not be imposed on judges holding officeunder Article III. Pp. 677-685.


          (a)There can be no Article III objection to the Special Division'sexercise of the power, under the Act, to appoint independentcounsel, since the power itself derives from the AppointmentsClause, a source of authority for judicial action that isindependent of Article III. Moreover, the Division's AppointmentsClause powers encompass the power to define the independentcounsel's jurisdiction. When, as here, Congress creates a temporary"office," the nature and duties of which will by necessity varywith the factual circumstances giving rise to the need for anappointment in the first place, it may vest the power to define theoffice's scope in the court as an incident to the appointment ofthe officer pursuant to the Appointments Clause. However, thejurisdiction that the court decides upon must be demonstrablyrelated to the factual circumstances that gave rise to the AttorneyGeneral's request for the appointment of independent counsel in theparticular case. Pp. 678-679.


          (b)Article III does not absolutely prevent Congress from vestingcertain miscellaneous powers in the Special Division under the Act.One purpose of the broad prohibition upon the courts' exercise ofexecutive or administrative duties of a nonjudicial nature is tomaintain the separation between the Judiciary and the otherbranches of the Federal Government by ensuring that judges do notencroach upon executive or legislative authority or undertake tasksthat are more properly accomplished by those branches. Here, theDivision's miscellaneous powers—such as the passive powers to"receive" (but not to act on or specifically approve) variousreports from independent counsel or the Attorney General—donot encroach upon the Executive Branch's authority. The Act


Page 657


simply does not give the Division power to "supervise" theindependent counsel in the exercise of counsel's investigative orprosecutorial authority. And, the functions that the Division isempowered to perform are not inherently "Executive," but aredirectly analogous to functions that federal judges perform inother contexts. Pp. 680—681.


          (c)The Special Division's power to terminate an independent counsel'soffice when counsel's task is completed—although"administrative" to the extent that it requires the Division tomonitor the progress of counsel's proceedings and to decide whethercounsel's job is "completed"—is not such a significantjudicial encroachment upon executive power or upon independentcounsel's prosecutorial discretion as to require that the Act beinvalidated as inconsistent with Article III. The Act's terminationprovisions do not give the Division anything approaching the powerto remove the counsel while an investigation or courtproceeding is still underway—this power is vested solely inthe Attorney General. Pp. 682-683.


          (d)Nor does the Special Division's exercise of the various powersspecifically granted to it pose any threat to the impartial andindependent federal adjudication of claims within the judicialpower of the United States. The Act gives the Division itself nopower to review any of the independent counsel's actions or any ofthe Attorney General's actions with regard to the counsel.Accordingly, there is no risk of partisan or biased adjudication ofclaims regarding the independent counsel by that court. Moreover,the Act prevents the Division's members from participating in "anyjudicial proceeding concerning a matter which involves suchindependent counsel while such independent counsel is serving inthat office or which involves the exercise of such independentcounsel's official duties, regardless of whether such independentcounsel is still serving in that office." Pp. 683-685.


          4.The Act does not violate separation of powers principles byimpermissibly interfering with the functions of the ExecutiveBranch. Pp. 685-696.


          (a)The Act's provision restricting the Attorney General's power toremove the independent counsel to only those instances in which hecan show "good cause," taken by itself, does not impermissiblyinterfere with the President's exercise of his constitutionallyappointed functions. Here, Congress has not attempted to gain arole in the removal of executive officials other than itsestablished powers of impeachment and conviction. The Act insteadputs the removal power squarely in the hands of the ExecutiveBranch. Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92L.Ed.2d 583, and Myers v. United States, 272 U.S. 52, 47S.Ct. 21, 71 L.Ed. 160, distinguished. The determination of whetherthe Constitution allows Congress to impose a "good cause"-typerestriction on the President's power to remove an official does notturn on whether or not that official is classified as "purelyexecutive." The


Page 658


analysis contained in this Court's removal cases is designed notto define rigid categories of those officials who may or may not beremoved at will by the President, but to ensure that Congress doesnot interfere with the President's exercise of the "executivepower" and his constitutionally appointed duty to "take care thatthe laws be faithfully executed" under Article II. Cf.Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct.869, 79 L.Ed. 1611; Wiener v. United States, 357 U.S. 349,78 S.Ct. 1275, 2 L.Ed.2d 1377. Here, the Act's imposition of a"good cause" standard for removal by itself does not unduly trammelon executive authority. The congressional determination to limitthe Attorney General's removal power was essential, in Congress'view, to establish the necessary independence of the office ofindependent counsel. Pp. 685-693.


          (b)The Act, taken as a whole, does not violate the principle ofseparation of powers by unduly interfering with the ExecutiveBranch's role. This case does not involve an attempt by Congress toincrease its own powers at the expense of the Executive Branch. TheAct does empower certain Members of Congress to request theAttorney General to apply for the appointment of an independentcounsel, but the Attorney General has no duty to comply with therequest, although he must respond within a certain time limit.Other than that, Congress' role under the Act is limited toreceiving reports or other information and to oversight of theindependent counsel's activities, functions that have beenrecognized generally as being incidental to the legislativefunction of Congress. Similarly, the Act does not work any judicialusurpation of properly executive functions. Nor does the Actimpermissibly undermine the powers of the Executive Branch, ordisrupt the proper balance between the coordinate branches bypreventing the Executive Branch from accomplishing itsconstitutionally assigned functions. Even though counsel is to somedegree "independent" and free from Executive Branch supervision toa greater extent than other federal prosecutors, the Act gives theExecutive Branch sufficient control over the independent counsel toensure that the President is able to perform his constitutionallyassigned duties. Pp. 693-696.


          267U.S.App.D.C. 178, 838 F.2d 476 (1988), reversed.


          REHNQUIST,C.J., delivered the opinion of the Court, in which BRENNAN, WHITE,MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. SCALIA, J.,filed a dissenting opinion, post, p. 697. KENNEDY, J., tookno part in the consideration or decision of the case.


          AlexiaMorrison, Washington, D.C., pro se.


Page 659


          MichaelDavidson, Washington, D.C., for the Senate, as amicus curiae,supporting the appellant, by special leave of Court.


          ThomasS. Martin, Washington, D.C., for the appellees.


          Sol.Gen., Charles Fried, Washington, D.C., for the U.S., as amicuscuriae, supporting the appellees, by special leave of Court.


          Chief Justice REHNQUIST delivered the opinion of the Court.


          Thiscase presents us with a challenge to the independent counselprovisions of the Ethics in Government Act of 1978, 28 U.S.C.§§ 49, 591 et seq. (1982 ed., Supp. V). Wehold


Page 660


today that these provisions of the Act do not violate theAppointments Clause of the Constitution, Art. II, § 2, cl. 2,or the limitations of Article III, nor do they impermissiblyinterfere with the President's authority under Article II inviolation of the constitutional principle of separation ofpowers.


          Brieflystated, Title VI of the Ethics in Government Act (Title VI or theAct), 28 U.S.C. §§ 591-599 (1982 ed., Supp.V),[1] allows for the appointment of an "independentcounsel" to investigate and, if appropriate, prosecute certainhigh-ranking Government officials for violations of federalcriminal laws.[2] The Act requires the Attorney General,upon receipt of information that he determines is "sufficient toconstitute grounds to investigate whether any person [covered bythe Act] may have violated any Federal criminal law," to conduct apreliminary investigation of the matter. When the Attor-


Page 661


ney General has completed this investigation, or 90 days haselapsed, he is required to report to a special court (the SpecialDivision) created by the Act "for the purpose of appointingindependent counsels." 28 U.S.C. § 49 (1982 ed., Supp.V).[3] If the Attorney General determines that "there areno reasonable grounds to believe that further investigation iswarranted," then he must notify the Special Division of thisresult. In such a case, "the division of the court shall have nopower to appoint an independent counsel." § 592(b)(1). If,however, the Attorney General has determined that there are"reasonable grounds to believe that further investigation orprosecution is warranted," then he "shall apply to the division ofthe court for the appointment of an independent counsel."[4] The Attorney General's application to the court "shallcontain sufficient information to assist the [court] in selectingan independent counsel and in defining that independent counsel'sprosecutorial jurisdiction." § 592(d). Upon receiving thisapplication, the Special Division "shall appoint an appropriateindependent counsel and shall define that independent counsel'sprosecutorial jurisdiction." § 593(b).[5]


Page 662


          Withrespect to all matters within the independent counsel'sjurisdiction, the Act grants the counsel "full power andindependent authority to exercise all investigative andprosecutorial functions and powers of the Department of Justice,the Attorney General, and any other officer or employee of theDepartment of Justice." § 594(a).[6] The functions ofthe independent counsel include conducting grand jury proceedingsand other investigations, participating in civil and criminal courtproceedings and litigation, and appealing any decision in any casein which the counsel participates in an official capacity.§§ 594(a)(1)-(3). Under § 594(a)(9), the counsel'spowers include "initiating and conducting prosecutions in any courtof competent jurisdiction, framing and signing indictments, filinginformations, and handling all aspects of any case, in the name ofthe United States." The counsel may appoint employees, §594(c), may request and obtain assistance from the Department ofJustice, § 594(d), and may accept referral of matters from theAttorney General if the matter falls within the counsel'sjurisdiction as defined by the Special Division, § 594(e). TheAct also states that an independent counsel "shall, except wherenot possible, comply with the written or other established policiesof the Department of Justice respecting enforcement of the criminallaws." § 594(f). In addition, whenever a matter has beenreferred to an independent counsel under the Act, the AttorneyGen-


Page 663


eral and the Justice Department are required to suspend allinvestigations and proceedings regarding the matter. § 597(a).An independent counsel has "full authority to dismiss matterswithin [his or her] prosecutorial jurisdiction without conductingan investigation or at any subsequent time before prosecution, ifto do so would be consistent" with Department of Justice policy.§ 594(g).[7]


          Twostatutory provisions govern the length of an independent counsel'stenure in office. The first defines the procedure for removing anindependent counsel. Section 596(a)(1) provides:


                    "Anindependent counsel appointed under this chapter may be removedfrom office, other than by impeachment and conviction, only by thepersonal action of the Attorney General and only for good cause,physical disability, mental incapacity, or any other condition thatsubstantially impairs the performance of such independent counsel'sduties."


          Ifan independent counsel is removed pursuant to this section, theAttorney General is required to submit a report to both the SpecialDivision and the Judiciary Committees of the Senate and the House"specifying the facts found and the ultimate grounds for suchremoval." § 596(a)(2). Under the current version of the Act,an independent counsel can obtain judicial review of the AttorneyGeneral's action by filing a civil action in the United StatesDistrict Court for the District of Columbia. Members of the SpecialDivision "may not hear or determine any such civil action or anyappeal of a de-


Page 664


cision in any such civil action." The reviewing court isauthorized to grant reinstatement or "other appropriate relief."§ 596(a)(3).[8]


          Theother provision governing the tenure of the independent counseldefines the procedures for "terminating" the counsel's office.Under § 596(b)(1), the office of an independent counselterminates when he or she notifies the Attorney General that he orshe has completed or substantially completed any investigations orprosecutions undertaken pursuant to the Act. In addition, theSpecial Division, acting either on its own or on the suggestion ofthe Attorney General, may terminate the office of an independentcounsel at any time if it finds that "the investigation of allmatters within the prosecutorial jurisdiction of such independentcounsel . . . have been completed or so substantially completedthat it would be appropriate for the Department of Justice tocomplete such investigations and prosecutions." §596(b)(2).[9]


          Finally,the Act provides for congressional oversight of the activities ofindependent counsel. An independent counsel may from time to timesend Congress statements or reports on his or her activities.§ 595(a)(2). The "appropriate committees of the Congress" aregiven oversight jurisdiction in regard to the official conduct ofan independent counsel, and the counsel is required by the Act tocooperate with Congress in the exercise of this jurisdiction.§ 595(a)(1). The counsel is required to inform the House ofRepresentatives of


Page 665


"substantial and credible information which [the counsel]receives . . . that may constitute grounds for an impeachment."§ 595(c). In addition, the Act gives certain congressionalcommittee members the power to "request in writing that theAttorney General apply for the appointment of an independentcounsel." § 592(g)(1). The Attorney General is required torespond to this request within a specified time but is not requiredto accede to the request. § 592(g)(2).


          Theproceedings in this case provide an example of how the Act works inpractice. In 1982, two Subcommittees of the House ofRepresentatives issued subpoenas directing the EnvironmentalProtection Agency (EPA) to produce certain documents relating tothe efforts of the EPA and the Land and Natural Resources Divisionof the Justice Department to enforce the "Superfund Law."[10] At that time, appellee Olson was the AssistantAttorney General for the Office of Legal Counsel (OLC), appelleeSchmults was Deputy Attorney General, and appellee Dinkins was theAssistant Attorney General for the Land and Natural ResourcesDivision. Acting on the advice of the Justice Department, thePresident ordered the Administrator of EPA to invoke executiveprivilege to withhold certain of the documents on the ground thatthey contained "enforcement sensitive information." TheAdministrator obeyed this order and withheld the documents. Inresponse, the House voted to hold the Administrator in contempt,after which the Administrator and the United States together fileda lawsuit against the House. The conflict abated in March 1983,when the administration agreed to give the House Subcommitteeslimited access to the documents.


          Thefollowing year, the House Judiciary Committee began aninvestigation into the Justice Department's role in the controversyover the EPA documents. During this investigation, appellee Olsontestified before a House Subcommittee


Page 666


on March 10, 1983. Both before and after that testimony, theDepartment complied with several Committee requests to producecertain documents. Other documents were at first withheld, althoughthese documents were eventually disclosed by the Department afterthe Committee learned of their existence. In 1985, the majoritymembers of the Judiciary Committee published a lengthy report onthe Committee's investigation. Report on Investigation of the Roleof the Department of Justice in the Withholding of EnvironmentalProtection Agency Documents from Congress in 1982-83, H.R.Rep. No.99-435 (1985). The report not only criticized various officials inthe Department of Justice for their role in the EPA executiveprivilege dispute, but it also suggested that appellee Olson hadgiven false and misleading testimony to the Subcommittee on March10, 1983, and that appellees Schmults and Dinkins had wrongfullywithheld certain documents from the Committee, thus obstructing theCommittee's investigation. The Chairman of the Judiciary Committeeforwarded a copy of the report to the Attorney General with arequest, pursuant to 28 U.S.C. § 592(c), that he seek theappointment of an independent counsel to investigate theallegations against Olson, Schmults, and Dinkins.


          TheAttorney General directed the Public Integrity Section of theCriminal Division to conduct a preliminary investigation. TheSection's report concluded that the appointment of an independentcounsel was warranted to investigate the Committee's allegationswith respect to all three appellees. After consulting with otherDepartment officials, however, the Attorney General chose to applyto the Special Division for the appointment of an independentcounsel solely with respect to appellee Olson.[11] TheAttorney General accordingly


Page 667


requested appointment of an independent counsel to investigatewhether Olson's March 10, 1983, testimony "regarding thecompleteness of [OLC's] response to the Judiciary Committee'srequest for OLC documents, and regarding his knowledge of EPA'swillingness to turn over certain disputed documents to Congress,violated 18 U.S.C. § 1505, § 1001, or any other provisionof federal criminal law." Attorney General Report, at 2-3. TheAttorney General also requested that the independent counsel haveauthority to investigate "any other matter related to thatallegation." Id., at 11.


          OnApril 23, 1986, the Special Division appointed James C. McKay asindependent counsel to investigate "whether the testimony of . . .Olson and his revision of such testimony on March 10, 1983,violated either 18 U.S.C. § 1505 or § 1001, or any otherprovision of federal law." The court also ordered that theindependent counsel


          "shallhave jurisdiction to investigate any other allegation of evidenceof violation of any Federal criminal law by Theodore Olsondeveloped during investigations, by the Independent Counsel,referred to above, and connected with or arising out of thatinvestigation, and Independent Counsel shall have jurisdiction toprosecute for any such violation." Order, Div. No. 86-1 (CADCSpecial Division, April 23, 1986).


          McKaylater resigned as independent counsel, and on May 29, 1986, theDivision appointed appellant Morrison as his replacement, with thesame jurisdiction.


          InJanuary 1987, appellant asked the Attorney General pursuant to§ 594(e) to refer to her as "related matters" the Committee'sallegations against appellees Schmults and Dinkins. The AttorneyGeneral refused to refer the matters, concluding that his decisionnot to request the appointment of


Page 668


an independent counsel in regard to those matters was finalunder § 592(b)(1). Appellant then asked the Special Divisionto order that the matters be referred to her under § 594(e).On April 2, 1987, the Division ruled that the Attorney General'sdecision not to seek appointment of an independent counsel withrespect to Schmults and Dinkins was final and unreviewable under§ 592(b)(1), and that therefore the court had no authority tomake the requested referral. In re Olson, 260 U.S.App.D.C.168, 818 F.2d 34. The court ruled, however, that its original grantof jurisdiction to appellant was broad enough to permit inquiryinto whether Olson may have conspired with others, includingSchmults and Dinkins, to obstruct the Committee's investigation.Id., at 181-182, 818 F.2d, at 47-48.


          Followingthis ruling, in May and June 1987, appellant caused a grand jury toissue and serve subpoenas ad testificandum and ducestecum on appellees. All three appellees moved to quash thesubpoenas, claiming, among other things, that the independentcounsel provisions of the Act were unconstitutional and thatappellant accordingly had no authority to proceed. On July 20,1987, the District Court upheld the constitutionality of the Actand denied the motions to quash. In re Sealed Case, 665F.Supp. 56 (DC). The court subsequently ordered that appellees beheld in contempt pursuant to 28 U.S.C. § 1826(a) forcontinuing to refuse to comply with the subpoenas. See App. toJuris. Statement 140a, 143a, 146a. The court stayed the effect ofits contempt orders pending expedited appeal.


          Adivided Court of Appeals reversed. In re Sealed Case, 267U.S.App.D.C. 178, 838 F.2d 476 (1988). The majority ruled firstthat an independent counsel is not an "inferior Officer" of theUnited States for purposes of the Appointments Clause. Accordingly,the court found the Act invalid because it does not provide for theindependent counsel to be nominated by the President and confirmedby the Senate, as the Clause requires for "principal" officers. Thecourt then


Page 669


went on to consider several alternative grounds for itsconclusion that the statute was unconstitutional. In the majority'sview, the Act also violates the Appointments Clause insofar as itempowers a court of law to appoint an "inferior" officer whoperforms core executive functions; the Act's delegation of variouspowers to the Special Division violates the limitations of ArticleIII; the Act's restrictions on the Attorney General's power toremove an independent counsel violate the separation of powers; andfinally, the Act interferes with the Executive Branch's prerogativeto "take care that the Laws be faithfully executed," Art. II,§ 3. The dissenting judge was of the view that the Act wasconstitutional. 267 U.S.App.D.C., at 238, 838 F.2d, at 536.Appellant then sought review by this Court, and we noted probablejurisdiction. 484 U.S. 1058, 108 S.Ct. 1010, 98 L.Ed.2d 976 (1988).We now reverse.


          Beforewe get to the merits, we first must deal with appellant'scontention that the constitutional issues addressed by the Court ofAppeals cannot be reviewed on this appeal from the District Court'scontempt judgment. Appellant relies on Blair v. UnitedStates, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919), inwhich this Court limited rather sharply the issues that may beraised by an individual who has been subpoenaed as a grand jurywitness and has been held in contempt for failure to comply withthe subpoena. On the facts of this case, however, we find itunnecessary to consider whether Blair has since beennarrowed by our more recent decisions, as appellees contend and theCourt of Appeals found in another related case, In re SealedCase, 264 U.S.App.D.C. 125, 827 F.2d 776 (1987). Appellantherself admits that she failed to object to the District Court'sconsideration of the merits of appellees' constitutional claims,and as a result, the Court of Appeals ruled that she had waived heropportunity to contend on appeal that review of those claims wasbarred by Blair. We see no reason why the Court of Appealswas not entitled to conclude


Page 670


that the failure of appellant to object on this ground in theDistrict Court was a sufficient reason for refusing to consider it,and we likewise decline to consider it. Appellant's contention isnot "jurisdictional" in the sense that it cannot be waived byfailure to raise it at the proper time and place. It is not thesort of claim which would defeat jurisdiction in the District Courtby showing that an Article III "Case" or "Controversy" is lacking.Appellees are subject to the burden of complying with the grandjury subpoena as a result of the District Court's contempt order,there is a legitimate adversarial relationship between the parties,and the courts possess the power to redress or resolve the currentcontroversy. See Bender v. Williamsport Area SchoolDistrict, 475 U.S. 534, 541-543, 106 S.Ct. 1326, 1331-1332, 89L.Ed.2d 501 (1986). We therefore turn to consider the merits ofappellees' constitutional claims.


          TheAppointments Clause of Article II reads as follows:


          "[ThePresident] shall nominate, and by and with the Advice and Consentof the Senate, shall appoint Ambassadors, other public Ministersand Consuls, Judges of the Supreme Court, and all other Officers ofthe United States, whose Appointments are not herein otherwiseprovided for, and which shall be established by Law: but theCongress may by Law 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." U.S. Const., Art. II, § 2,cl. 2.


          Theparties do not dispute that "[t]he Constitution for purposes ofappointment . . . divides all its officers into two classes."United States v. Germaine, 99 U.S. (9 Otto) 508, 509, 25L.Ed. 482 (1879). As we stated in Buckley v. Valeo, 424 U.S.1, 132, 96 S.Ct. 612, 688, 46 L.Ed.2d 659 (1976): "[P]rincipalofficers are selected by the President with the advice and consentof the Senate. Inferior officers Congress may allow to be appointedby the President alone, by the heads of departments, or by theJudiciary." The initial


Page 671


question is, accordingly, whether appellant is an "inferior" ora "principal" officer.[12] If she is the latter, as theCourt of Appeals concluded, then the Act is in violation of theAppointments Clause.


          Theline between "inferior" and "principal" officers is one that is farfrom clear, and the Framers provided little guidance into where itshould be drawn. See, e.g., 2 J. Story, Commentaries on theConstitution § 1536, pp. 397-398 (3d ed. 1858) ("In thepractical course of the government there does not seem to have beenany exact line drawn, who are and who are not to be deemedinferior officers, in the sense of the constitution, whoseappointment does not necessarily require the concurrence of thesenate"). We need not attempt here to decide exactly where the linefalls between the two types of officers, because in our viewappellant clearly falls on the "inferior officer" side of thatline. Several factors lead to this conclusion.


          First,appellant is subject to removal by a higher Executive Branchofficial. Although appellant may not be "subordinate" to theAttorney General (and the President) insofar as she possesses adegree of independent discretion to exercise the powers delegatedto her under the Act, the fact that she can be removed by theAttorney General indicates that she is to some degree "inferior" inrank and authority. Second, appellant is empowered by the Act toperform only certain, limited duties. An independent counsel's roleis restricted primarily to investigation and, if appropriate,prosecution for certain federal crimes. Admittedly, the Actdelegates to appellant "full power and independent authority toexercise all investigative and prosecutorial functions and powersof the Department of Justice," § 594(a), but this grant ofauthority does not include any authority to formulate policy forthe Government or the Executive Branch, nor does it give appellantany administrative duties outside of those nec-


Page 672


essary to operate her office. The Act specifically provides thatin policy matters appellant is to comply to the extent possiblewith the policies of the Department. § 594(f).


          Third,appellant's office is limited in jurisdiction. Not only is the Actitself restricted in applicability to certain federal officialssuspected of certain serious federal crimes, but an independentcounsel can only act within the scope of the jurisdiction that hasbeen granted by the Special Division pursuant to a request by theAttorney General. Finally, appellant's office is limited in tenure.There is concededly no time limit on the appointment of aparticular counsel. Nonetheless, the office of independent counselis "temporary" in the sense that an independent counsel isappointed essentially to accomplish a single task, and when thattask is over the office is terminated, either by the counselherself or by action of the Special Division. Unlike otherprosecutors, appellant has no ongoing responsibilities that extendbeyond the accomplishment of the mission that she was appointed forand authorized by the Special Division to undertake. In our view,these factors relating to the "ideas of tenure, duration . . . andduties" of the independent counsel, Germaine, supra, 9 Otto,at 511, are sufficient to establish that appellant is an "inferior"officer in the constitutional sense.


          Thisconclusion is consistent with our few previous decisions thatconsidered the question whether a particular Government official isa "principal" or an "inferior" officer. In United States v.Eaton, 169 U.S. 331, 18 S.Ct. 374, 42 L.Ed. 767 (1898), forexample, we approved Department of State regulations that allowedexecutive officials to appoint a "vice-consul" during the temporaryabsence of the consul, terming the "vice-consul" a "subordinateofficer" notwithstanding the Appointment Clause's specificreference to "Consuls" as principal officers. As we stated:"Because the subordinate officer is charged with the performance ofthe duty of the superior for a limited time and under special andtemporary conditions he is not thereby transformed into thesuperior and permanent offi-


Page 673


cial." Id., at 343, 18 S.Ct., at 379. In Ex parteSiebold, 100 U.S. (10 Otto) 371, 25 L.Ed. 717 (1880), the Courtfound that federal "supervisor[s] of elections," who were chargedwith various duties involving oversight of local congressionalelections, see id., 10 Otto at 379-380, were inferiorofficers for purposes of the Clause. In Go-Bart Importing Co. v.United States, 282 U.S. 344, 352-353, 51 S.Ct. 153, 156-157, 75L.Ed. 374 (1931), we held that "United States commissioners areinferior officers." Id., at 352, 51 S.Ct., at 156. Thesecommissioners had various judicial and prosecutorial powers,including the power to arrest and imprison for trial, to issuewarrants, and to institute prosecutions under "laws relating to theelective franchise and civil rights." Id., at 353, n. 2, 51S.Ct., at 156, n. 2. All of this is consistent with our referencein United States v. Nixon, 418 U.S. 683, 694, 696, 94 S.Ct.3090, 3100, 3101, 41 L.Ed.2d 1039 (1974), to the office ofWatergate Special Prosecutor—whose authority was similar tothat of appellant, see id., at 694, n. 8, 94 S.Ct., at 3100,n. 8—as a "subordinate officer."


          Thisdoes not, however, end our inquiry under the Appointments Clause.Appellees argue that even if appellant is an "inferior" officer,the Clause does not empower Congress to place the power to appointsuch an officer outside the Executive Branch. They contend that theClause does not contemplate congressional authorization of"interbranch appointments," in which an officer of one branch isappointed by officers of another branch. The relevant language ofthe Appointments Clause is worth repeating. It reads: ". . . butthe Congress may by Law vest the Appointment of such inferiorOfficers, as they think proper, in the President alone, in thecourts of Law, or in the Heads of Departments." On its face, thelanguage of this "excepting clause" admits of no limitation oninterbranch appointments. Indeed, the inclusion of "as they thinkproper" seems clearly to give Congress significant discretion todetermine whether it is "proper" to vest the appointment of, forexample, executive officials in the "courts of Law." We recognizedas much in one of our few decisions in this area, Ex parteSiebold, supra, where we stated:


Page 674


          "Itis no doubt usual and proper to vest the appointment of inferiorofficers in that department of the government, executive orjudicial, or in that particular executive department to which theduties of such officers appertain. But there is no absoluterequirement to this effect in the Constitution; and, if there were,it would be difficult in many cases to determine to whichdepartment an office properly belonged. . . .


                    "Butas the Constitution stands, the selection of the appointing power,as between the functionaries named, is a matter resting in thediscretion of Congress. And, looking at the subject in a practicallight, it is perhaps better that it should rest there, than thatthe country should be harassed by the endless controversies towhich a more specific direction on this subject might have givenrise." Id., 100 U.S. (10 Otto), at 397-398.


          Ouronly decision to suggest otherwise, Ex parte Hennen, 13 Pet.230, 10 L.Ed. 138 (1839), from which the first sentence in theabove quotation from Siebold was derived, was discussed inSiebold and distinguished as "not intended to define theconstitutional power of Congress in this regard, but rather toexpress the law or rule by which it should be governed." 100 U.S.(10 Otto), at 398. Outside of these two cases, there is verylittle, if any, express discussion of the propriety of interbranchappointments in our decisions, and we see no reason now to departfrom the holding of Siebold that such appointments are notproscribed by the excepting clause.


          Wealso note that the history of the Clause provides no support forappellees' position. Throughout most of the process of drafting theConstitution, the Convention concentrated on the problem of whoshould have the authority to appoint judges. At the suggestion ofJames Madison, the Convention adopted a proposal that the Senateshould have this authority, 1 Records of the Federal Convention of1787, pp. 232-233 (M. Farrand ed. 1966), and several attempts totransfer the appointment power to the President were re-


Page 675


jected. See 2 id., at 42-44, 80-83. The August 6, 1787,draft of the Constitution reported by the Committee of Detailretained Senate appointment of Supreme Court Judges, provided alsofor Senate appointment of ambassadors, and vested in the Presidentthe authority to "appoint officers in all cases not otherwiseprovided for by this Constitution." Id., at 183, 185. Thisscheme was maintained until September 4, when the Committee ofEleven reported its suggestions to the Convention. This Committeesuggested that the Constitution be amended to state that thePresident "shall nominate and by and with the advice and consent ofthe Senate shall appoint ambassadors, and other public Ministers,Judges of the Supreme Court, and all other Officers of the [UnitedStates], whose appointments are not otherwise herein provided for."Id., at 498-499. After the addition of "Consuls" to thelist, the Committee's proposal was adopted, id., at 539, andwas subsequently reported to the Convention by the Committee ofStyle. See id., at 599. It was at this point, on September15, that Gouverneur Morris moved to add the Excepting Clause toArt. II, § 2. Id., at 627. The one comment made on thismotion was by Madison, who felt that the Clause did not go farenough in that it did not allow Congress to vest appointment powersin "Superior Officers below Heads of Departments." The first voteon Morris' motion ended in a tie. It was then put forward a secondtime, with the urging that "some such provision [was] toonecessary, to be omitted." This time the proposal was adopted.Id., at 627-628. As this discussion shows, there was littleor no debate on the question whether the Clause empowers Congressto provide for interbranch appointments, and there is nothing tosuggest that the Framers intended to prevent Congress from havingthat power.


          Wedo not mean to say that Congress' power to provide for interbranchappointments of "inferior officers" is unlimited. In addition toseparation-of-powers concerns, which would arise if such provisionsfor appointment had the potential to


Page 676


impair the constitutional functions assigned to one of thebranches, Siebold itself suggested that Congress' decisionto vest the appointment power in the courts would be improper ifthere was some "incongruity" between the functions normallyperformed by the courts and the performance of their duty toappoint. 100 U.S. (10 Otto), at 398 ("[T]he duty to appointinferior officers, when required thereto by law, is aconstitutional duty of the courts; and in the present case there isno such incongruity in the duty required as to excuse the courtsfrom its performance, or to render their acts void"). In this case,however, we do not think it impermissible for Congress to vest thepower to appoint independent counsel in a specially created federalcourt. We thus disagree with the Court of Appeals' conclusion thatthere is an inherent incongruity about a court having the power toappoint prosecutorial officers.[13] We have recognizedthat courts may appoint private attorneys to act as prosecutor forjudicial contempt judgments. See Young v. United States ex rel.Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d740 (1987). In Go-Bart Importing Co. v. United States, 282U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931), we approved courtappointment of United States commissioners, who exercised certainlimited prosecutorial powers. Id., at 353, n. 2, 51 S.Ct.,at 156, n. 2. In Siebold, as well, we indicated thatjudicial appointment of federal marshals, who are "executiveofficer[s]," would not be inappropriate. Lower courts have alsoupheld interim judicial appointments of United States Attorneys,see United States v. Solomon, 216 F.Supp. 835 (SDNY 1963),and Congress itself has vested the power to make these interimappointments in the district courts, see 28


Page 677


U.S.C. § 546(d) (1982 ed., Supp. V).[14] Congress,of course, was concerned when it created the office of independentcounsel with the conflicts of interest that could arise insituations when the Executive Branch is called upon to investigateits own high-ranking officers. If it were to remove the appointingauthority from the Executive Branch, the most logical place to putit was in the Judicial Branch. In the light of the Act's provisionmaking the judges of the Special Division ineligible to participatein any matters relating to an independent counsel they haveappointed, 28 U.S.C. § 49(f) (1982 ed., Supp. V) we do notthink that appointment of the independent counsel by the court runsafoul of the constitutional limitation on "incongruous" interbranchappointments.


          Appelleesnext contend that the powers vested in the Special Division by theAct conflict with Article III of the Constitution. We have longrecognized that by the express provision of Article III, thejudicial power of the United States is limited to "Cases" and"Controversies." See Muskrat v. United States, 219 U.S. 346,356, 31 S.Ct. 250, 253, 55 L.Ed. 246 (1911). As a general rule, wehave broadly stated that "executive or administrative duties of anonjudicial nature may not be imposed on judges holding officeunder Art. III of the Constitution." Buckley, 424 U.S., at123, 96 S.Ct., at 684 (citing United States v. Ferreira, 13How. 40, 14 L.Ed. 40 (1852); Hayburn's Case, 2 Dall. 409(1792)).[15] The pur-


Page 678


pose of this limitation is to help ensure the independence ofthe Judicial Branch and to prevent the Judiciary from encroachinginto areas reserved for the other branches. See United StatesParole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202,1208, 63 L.Ed.2d 479 (1980). With this in mind, we address in turnthe various duties given to the Special Division by the Act.


          Mostimportantly, the Act vests in the Special Division the power tochoose who will serve as independent counsel and the power todefine his or her jurisdiction. § 593(b). Clearly, once it isaccepted that the Appointments Clause gives Congress the power tovest the appointment of officials such as the independent counselin the "courts of Law," there can be no Article III objection tothe Special Division's exercise of that power, as the power itselfderives from the Appointments Clause, a source of authority forjudicial action


Page 679


that is independent of Article III.[16] Appelleescontend, however, that the Division's Appointments Clause powers donot encompass the power to define the independent counsel'sjurisdiction. We disagree. In our view, Congress' power under theClause to vest the "Appointment" of inferior officers in the courtsmay, in certain circumstances, allow Congress to give the courtssome discretion in defining the nature and scope of the appointedofficial's authority. Particularly when, as here, Congress createsa temporary "office" the nature and duties of which will bynecessity vary with the factual circumstances giving rise to theneed for an appointment in the first place, it may vest the powerto define the scope of the office in the court as an incident tothe appointment of the officer pursuant to the Appointments Clause.This said, we do not think that Congress may give the Divisionunlimited discretion to determine the independent counsel'sjurisdiction. In order for the Division's definition of thecounsel's jurisdiction to be truly "incidental" to its power toappoint, the jurisdiction that the court decides upon must bedemonstrably related to the factual circumstances that gave rise tothe Attorney General's investigation and request for theappointment of the independent counsel in the particularcase.[17]


Page 680


          TheAct also vests in the Special Division various powers and duties inrelation to the independent counsel that, because they do notinvolve appointing the counsel or defining his or her jurisdiction,cannot be said to derive from the Division's Appointments Clauseauthority. These duties include granting extensions for theAttorney General's preliminary investigation, § 592(a)(3);receiving the report of the Attorney General at the conclusion ofhis preliminary investigation, §§ 592(b)(1),593(c)(2)(B); referring matters to the counsel upon request, §594(e) [18] ; receiving reports from the counsel regardingexpenses incurred, § 594(h)(1)(A); receiving a report from theAttorney General following the removal of an independent counsel,§ 596(a)(2); granting attorney's fees upon request toindividuals who were investigated but not indicted by anindependent counsel, § 593(f); receiving a final report fromthe counsel, § 594(h)(1)(B); deciding whether to release thecounsel's final report to Congress or the public and determiningwhether any protective orders should be issued, § 594(h)(2);and terminating an independent counsel when his or her task iscompleted, § 596(b)(2).


          Leavingaside for the moment the Division's power to terminate anindependent counsel, we do not think that Article III absolutelyprevents Congress from vesting these other miscellaneous powers inthe Special Division pursuant to the Act. As we observed above, onepurpose of the broad prohibition upon the courts' exercise of"executive or administrative duties of a nonjudicial nature,"Buckley, 424 U.S., at 123, 96 S.Ct., at 684, is to maintainthe separation between the Judiciary and the other branches of theFederal Government by ensuring that judges do not encroach uponexecutive or legislative authority or undertake tasks that are moreproperly accom-


Page 681


plished by those branches. In this case, the miscellaneouspowers described above do not impermissibly trespass upon theauthority of the Executive Branch. Some of these allegedly"supervisory" powers conferred on the court are passive: theDivision merely "receives" reports from the counsel or the AttorneyGeneral, it is not entitled to act on them or to specificallyapprove or disapprove of their contents. Other provisions of theAct do require the court to exercise some judgment anddiscretion,[19] but the powers granted by these provisionsare themselves essentially ministerial. The Act simply does notgive the Division the power to "supervise" the independent counselin the exercise of his or her investigative or prosecutorialauthority. And, the functions that the Special Division isempowered to perform are not inherently "Executive"; indeed, theyare directly analogous to functions that federal judges perform inother contexts, such as deciding whether to allow disclosure ofmatters occurring before a grand jury, see Fed. Rule Crim.Proc.6(e), deciding to extend a grand jury investigation, Rule 6(g), orawarding attorney's fees, see, e.g., 42 U.S.C. §1988.[20]


Page 682


          Weare more doubtful about the Special Division's power to terminatethe office of the independent counsel pursuant to § 596(b)(2).As appellees suggest, the power to terminate, especially whenexercised by the Division on its own motion, is "administrative" tothe extent that it requires the Special Division to monitor theprogress of proceedings of the independent counsel and come to adecision as to whether the counsel's job is "completed." §596(b)(2). It also is not a power that could be consideredtypically "judicial," as it has few analogues among the court'smore traditional powers. Nonetheless, we do not, as did the Courtof Appeals, view this provision as a significant judicialencroachment upon executive power or upon the prosecutorialdiscretion of the independent counsel.


          Wethink that the Court of Appeals overstated the matter when itdescribed the power to terminate as a "broadsword and . . . rapier"that enables the court to "control the pace and depth of theindependent counsel's activities." 267 U.S.App.D.C., at 217, 838F.2d, at 515. The provision has not been tested in practice, and wedo not mean to say that an adventurous special court could notreasonably construe the provision as did the Court of Appeals; butit is the duty of federal courts to construe a statute in order tosave it from constitutional infirmities, see, e.g., CommodityFutures Trading Comm'n v. Schor, 478 U.S. 833, 841, 106 S.Ct.3245, 3251, 92 L.Ed.2d 675 (1986), and to that end we think anarrow construction is appropriate here. The termination provisionsof the Act do not give the Special Division anything approachingthe power to remove the counsel while an investigation orcourt proceeding is still underway—this power is vestedsolely in the Attorney General. As we see it, "termination" mayoccur only when the duties of


Page 683


the counsel are truly "completed" or "so substantiallycompleted" that there remains no need for any continuing action bythe independent counsel.[21] It is basically a device forremoving from the public payroll an independent counsel who hasserved his or her purpose, but is unwilling to acknowledge thefact. So construed, the Special Division's power to terminate doesnot pose a sufficient threat of judicial intrusion into mattersthat are more properly within the Executive's authority to requirethat the Act be invalidated as inconsistent with Article III.


          Nordo we believe, as appellees contend, that the Special Division'sexercise of the various powers specifically granted to it under theAct poses any threat to the "impartial and independent federaladjudication of claims within the judicial power of the UnitedStates." Commodity Futures Trading Comm'n v. Schor, supra,at 850, 106 S.Ct., at 3256. We reach this conclusion for tworeasons. First, the Act as it currently stands gives the SpecialDivision itself no power to review any of the actions of theindependent counsel or any of the actions of the Attorney Generalwith regard to the counsel. Accordingly, there is no risk ofpartisan or biased adjudication of claims regarding the independentcounsel by that court. Second, the Act prevents members of theSpecial Division from participating in "any judicialproceeding concerning a matter which involves such independentcounsel while such independent counsel is serving in that office orwhich involves the exercise of such independent counsel's officialduties, regard-


Page 684


less of whether such independent counsel is still serving inthat office." 28 U.S.C. § 49(f) (1982 ed., Supp. V) (emphasisadded); see also § 596(a)(3) (preventing members of theSpecial Division from participating in review of the AttorneyGeneral's decision to remove an independent counsel). We think boththe special court and its judges are sufficiently isolated by thesestatutory provisions from the review of the activities of theindependent counsel so as to avoid any taint of the independence ofthe Judiciary such as would render the Act invalid under ArticleIII.


          Weemphasize, nevertheless, that the Special Division has noauthority to take any action or undertake any duties that are notspecifically authorized by the Act. The gradual expansion of theauthority of the Special Division might in another context be abureaucratic success story, but it would be one that would haveserious constitutional ramifications. The record in other casesinvolving independent counsel indicate that the Special Divisionhas at times given advisory opinions or issued orders that are notdirectly authorized by the Act. Two examples of this were cited bythe Court of Appeals, which noted that the Special Division issued"orders" that ostensibly exempted the independent counsel fromconflict-of-interest laws. See 267 U.S.App.D.C., at 216, and n. 60,838 F.2d, at 514, and n. 60 (citing In re Deaver, No. 86-2(CADC Special Division, July 2, 1986), and In re Olson, No.86-1 (CADC Special Division, June 18, 1986)). In another case, theDivision reportedly ordered that a counsel postpone aninvestigation into certain allegations until the completion ofrelated state criminal proceedings. See H.R.Rep.Conf.Rep. No.100-452, p. 26 (1987), U.S.Code Cong. & Admin.News 1987, pp.2150, 2192. The propriety of the Special Division's actions inthese instances is not before us as such, but we nonetheless thinkit appropriate to point out not only that there is no authorizationfor such actions in the Act itself, but that the Division'sexercise of unauthorized


Page 685


powers risks the transgression of the constitutional limitationsof Article III that we have just discussed.[22]


          Wenow turn to consider whether the Act is invalid under theconstitutional principle of separation of powers. Two relatedissues must be addressed: The first is whether the provision of theAct restricting the Attorney General's power to remove theindependent counsel to only those instances in which he can show"good cause," taken by itself, impermissibly interferes with thePresident's exercise of his constitutionally appointed functions.The second is whether, taken as a whole, the Act violates theseparation of powers by reducing the President's ability to controlthe prosecutorial powers wielded by the independent counsel.


          TwoTerms ago we had occasion to consider whether it was consistentwith the separation of powers for Congress to pass a statute thatauthorized a Government official who is removable only by Congressto participate in what we found to be "executive powers."Bowsher v. Synar, 478 U.S. 714, 730, 106 S.Ct. 3181, 3190,92 L.Ed.2d 583 (1986). We held in Bowsher that "Congresscannot reserve


Page 686


for itself the power of removal of an officer charged with theexecution of the laws except by impeachment." Id., at 726,106 S.Ct., at 3188. A primary antecedent for this ruling was our1926 decision in Myers v. United States, 272 U.S. 52, 47S.Ct. 21, 71 L.Ed. 160 (1926). Myers had considered thepropriety of a federal statute by which certain postmasters of theUnited States could be removed by the President only "by and withthe advice and consent of the Senate." There too, Congress' attemptto involve itself in the removal of an executive official was foundto be sufficient grounds to render the statute invalid. As weobserved in Bowsher, the essence of the decision inMyers was the judgment that the Constitution preventsCongress from "draw[ing] to itself . . . the power to remove or theright to participate in the exercise of that power. To do thiswould be to go beyond the words and implications of the[Appointments Clause] and to infringe the constitutional principleof the separation of governmental powers." Myers, supra, at161, 47 S.Ct., at 40.


          Unlikeboth Bowsher and Myers, this case does not involve anattempt by Congress itself to gain a role in the removal ofexecutive officials other than its established powers ofimpeachment and conviction. The Act instead puts the removal powersquarely in the hands of the Executive Branch; an independentcounsel may be removed from office, "only by the personal action ofthe Attorney General, and only for good cause." §596(a)(1).[23] There is no requirement of congressionalapproval of the Attorney General's removal decision, though thedecision is subject to judicial review. § 596(a)(3). In ourview, the removal provisions of the Act make this case moreanalogous to Humphrey's Executor v. United States, 295 U.S.602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), and Wiener v. UnitedStates, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958),than to Myers or Bowsher.


Page 687


          InHumphrey's Executor, the issue was whether a statuterestricting the President's power to remove the Commissioners ofthe Federal Trade Commission (FTC) only for "inefficiency, neglectof duty, or malfeasance in office" was consistent with theConstitution. 295 U.S., at 619, 55 S.Ct., at 870. We stated thatwhether Congress can "condition the [President's power of removal]by fixing a definite term and precluding a removal except forcause, will depend upon the character of the office." Id.,at 631, 55 S.Ct., at 875. Contrary to the implication of some dictain Myers,[24] the President's power to removeGovernment officials simply was not "all-inclusive in respect ofcivil officers with the exception of the judiciary provided for bythe Constitution." 295 U.S., at 629, 55 S.Ct., at 874. At least inregard to "quasi-legislative" and "quasi-judicial" agencies such asthe FTC,[25] "[t]he authority of Congress, in creating[such] agencies, to require them to act in discharge of theirduties independently of executive control . . . includes, as anappropriate incident, power to fix the period during which theyshall continue in office, and to forbid their removal except forcause in the meantime." Ibid. In Humphrey's Executor,we found it "plain" that the Constitution did not give thePresident "illimitable power of removal" over the officers ofindependent agencies. Ibid. Were the President to have


Page 688


the power to remove FTC Commissioners at will, the "coerciveinfluence" of the removal power would "threate[n] the independenceof [the] commission." Id., at 630, 55 S.Ct., at 875.


          Similarly,in Wiener we considered whether the President had unfettereddiscretion to remove a member of the War Claims Commission, whichhad been established by Congress in the War Claims Act of 1948, 62Stat. 1240. The Commission's function was to receive and adjudicatecertain claims for compensation from those who had sufferedpersonal injury or property damage at the hands of the enemy duringWorld War II. Commissioners were appointed by the President, withthe advice and consent of the Senate, but the statute made noprovision for the removal of officers, perhaps because theCommission itself was to have a limited existence. As inHumphrey's Executor, however, the Commissioners wereentrusted by Congress with adjudicatory powers that were to beexercised free from executive control. In this context, "Congressdid not wish to have hang over the Commission the Damocles' swordof removal by the President for no reason other than that hepreferred to have on that Commission men of his own choosing." 357U.S., at 356, 78 S.Ct., at 1279. Accordingly, we rejected thePresident's attempt to remove a Commissioner "merely because hewanted his own appointees on [the] Commission," stating that "nosuch power is given to the President directly by the Constitution,and none is impliedly conferred upon him by statute."Ibid.


          Appelleescontend that Humphrey's Executor and Wiener aredistinguishable from this case because they did not involveofficials who performed a "core executive function." They arguethat our decision in Humphrey's Executor rests on adistinction between "purely executive" officials and officials whoexercise "quasi-legislative" and "quasi-judicial" powers. In theirview, when a "purely executive" official is involved, the governingprecedent is Myers, not Humphrey's Executor. SeeHumphrey's Executor, supra, 295 U.S., at 628, 55 S.Ct., at874. And, under Myers, the President must have absolutediscretion to


Page 689


discharge "purely" executive officials at will. SeeMyers, 272 U.S., at 132-134, 47 S.Ct., at30-31.[26]


          Weundoubtedly did rely on the terms "quasi-legislative" and"quasi-judicial" to distinguish the officials involved inHumphrey's Executor and Wiener from those inMyers, but our present considered view is that thedetermination of whether the Constitution allows Congress to imposea "good cause"-type restriction on the President's power to removean official cannot be made to turn on whether or not that officialis classified as "purely executive." [27] The analysiscontained in our removal cases is designed not to define rigidcategories of those officials who may or may not be removed at willby the President,[28] but to ensure that Congress does


Page 690


not interfere with the President's exercise of the "executivepower" and his constitutionally appointed duty to "take care thatthe laws be faithfully executed" under Article II. Myers wasundoubtedly correct in its holding, and in its broader suggestionthat there are some "purely executive" officials who must beremovable by the President at will if he is to be able toaccomplish his constitutional role.[29] See 272 U.S., at132-134, 47 S.Ct., at 30-31. But as the Court noted inWiener:


                    "Theassumption was short-lived that the Myers case recognizedthe President's inherent constitutional power to remove officialsno matter what the relation of the executive to the discharge oftheir duties and no matter what restrictions Congress may haveimposed regarding the nature of their tenure." 357 U.S., at 352, 78S.Ct., at 1277.


          Atthe other end of the spectrum from Myers, thecharacterization of the agencies in Humphrey's Executor andWie-


Page 691


ner as "quasi-legislative" or "quasi-judicial" in large partreflected our judgment that it was not essential to the President'sproper execution of his Article II powers that these agencies beheaded up by individuals who were removable at will.[30]We do not mean to suggest that an analysis of the functions servedby the officials at issue is irrelevant. But the real question iswhether the removal restrictions are of such a nature that theyimpede the President's ability to perform his constitutional duty,and the functions of the officials in question must be analyzed inthat light.


          Consideringfor the moment the "good cause" removal provision in isolation fromthe other parts of the Act at issue in this case, we cannot saythat the imposition of a "good cause" standard for removal byitself unduly trammels on executive authority. There is no realdispute that the functions performed by the independent counsel are"executive" in the sense that they are law enforcement functionsthat typically have been undertaken by officials within theExecutive Branch. As we noted above, however, the independentcounsel is an inferior officer under the Appointments Clause, withlimited jurisdiction and tenure and lacking policymaking orsignificant administrative authority. Although the counselexercises no small amount of discretion and judgment in decidinghow to carry out his or her duties under the Act, we simply do notsee how the President's need to control the exercise of thatdiscretion is so central to the functioning of the Executive Branchas to require as a matter of consti-


Page 692


tutional law that the counsel be terminable at will by thePresident.[31]


          Nordo we think that the "good cause" removal provision at issue hereimpermissibly burdens the President's power to control or supervisethe independent counsel, as an executive official, in the executionof his or her duties under the Act. This is not a case in which thepower to remove an executive official has been completely strippedfrom the President, thus providing no means for the President toensure the "faithful execution" of the laws. Rather, because theindependent counsel may be terminated for "good cause," theExecutive, through the Attorney General, retains ample authority toassure that the counsel is competently performing his or herstatutory responsibilities in a manner that comports with theprovisions of the Act.[32] Although we need not decide inthis case exactly what is encompassed within the term "good cause"under the Act, the legislative history of the removal provisionalso makes clear that the Attorney General may remove anindependent counsel for "misconduct." See H.R.Conf.Rep. No.100-452, p. 37 (1987). Here, as with the provision of the Actconferring the appointment authority of


Page 693


the independent counsel on the special court, the congressionaldetermination to limit the removal power of the Attorney Generalwas essential, in the view of Congress, to establish the necessaryindependence of the office. We do not think that this limitation asit presently stands sufficiently deprives the President of controlover the independent counsel to interfere impermissibly with hisconstitutional obligation to ensure the faithful execution of thelaws.[33]


          Thefinal question to be addressed is whether the Act, taken as awhole, violates the principle of separation of powers by undulyinterfering with the role of the Executive Branch. Time and againwe have reaffirmed the importance in our constitutional scheme ofthe separation of governmental powers into the three coordinatebranches. See, e.g., Bowsher v. Synar, 478 U.S., at 725, 106S.Ct., at 3187 (citing Humphrey's Executor, 295 U.S., at629-630, 55 S.Ct., at 874-875). As we stated in Buckley v.Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), thesystem of separated powers and checks and balances established inthe Constitution was regarded by the Framers as "a self-executingsafeguard against the encroachment or aggrandizement of one branchat the expense of the other." Id., at 122, 96 S.Ct., at 684.We have not hesitated to invalidate provisions of law which violatethis principle. See id., at 123, 96 S.Ct., at 684. On theother hand, we have never held that the Constitution requires thatthe three


Page 694


branches of Government "operate with absolute independence."United States v. Nixon, 418 U.S., at 707, 94 S.Ct., at 3107;see also Nixon v. Administrator of General Services, 433U.S. 425, 442, 97 S.Ct. 2777, 2789, 53 L.Ed.2d 867 (1977) (citingJames Madison in The Federalist No. 47, and Joseph Story in 1Commentaries on the Constitution § 525 (M. Bigelow, 5th ed.1905)). In the often-quoted words of Justice Jackson:


          "Whilethe Constitution diffuses power the better to secure liberty, italso contemplates that practice will integrate the dispersed powersinto a workable government. It enjoins upon its branchesseparateness but interdependence, autonomy but reciprocity."Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (concurringopinion).


          Weobserve first that this case does not involve an attempt byCongress to increase its own powers at the expense of the ExecutiveBranch. Cf. Commodity Futures Trading Comm'n v. Schor, 478U.S., at 856, 106 S.Ct., at 3259-3260. Unlike some of our previouscases, most recently Bowsher v. Synar, this case simply doesnot pose a "dange[r] of congressional usurpation of ExecutiveBranch functions." 478 U.S., at 727, 106 S.Ct., at 3188; see alsoINS v. Chadha, 462 U.S. 919, 958, 103 S.Ct. 2764, 2777, 77L.Ed.2d 317 (1983). Indeed, with the exception of the power ofimpeachment—which applies to all officers of the UnitedStates Congress retained for itself no powers of control orsupervision over an independent counsel. The Act does empowercertain Members of Congress to request the Attorney General toapply for the appointment of an independent counsel, but theAttorney General has no duty to comply with the request, althoughhe must respond within a certain time limit. § 529(g). Otherthan that, Congress' role under the Act is limited to receivingreports or other information and oversight of the independentcounsel's activities, § 595(a), functions that we haverecognized generally as being incidental to the legislativefunction of Congress. See McGrain v. Daugherty, 273 U.S.135, 174, 47 S.Ct. 319, 328, 71 L.Ed. 580 (1927).


Page 695


          Similarly,we do not think that the Act works any judicial usurpationof properly executive functions. As should be apparent from ourdiscussion of the Appointments Clause above, the power to appointinferior officers such as independent counsel is not in itself an"executive" function in the constitutional sense, at least whenCongress has exercised its power to vest the appointment of aninferior office in the "courts of Law." We note nonetheless thatunder the Act the Special Division has no power to appoint anindependent counsel sua sponte; it may only do so upon thespecific request of the Attorney General, and the courts arespecifically prevented from reviewing the Attorney General'sdecision not to seek appointment, § 592(f). In addition, oncethe court has appointed a counsel and defined his or herjurisdiction, it has no power to supervise or control theactivities of the counsel. As we pointed out in our discussion ofthe Special Division in relation to Article III, the various powersdelegated by the statute to the Division are not supervisory oradministrative, nor are they functions that the Constitutionrequires be performed by officials within the Executive Branch. TheAct does give a federal court the power to review the AttorneyGeneral's decision to remove an independent counsel, but in ourview this is a function that is well within the traditional powerof the Judiciary.


          Finally,we do not think that the Act "impermissibly undermine[s]" thepowers of the Executive Branch, Schor, supra, 478 U.S., at856, 106 S.Ct., at 3260, or "disrupts the proper balance betweenthe coordinate branches [by] prevent[ing] the Executive Branch fromaccomplishing its constitutionally assigned functions," Nixon v.Administrator of General Services, supra, 433 U.S., at 443, 97S.Ct., at 2790. It is undeniable that the Act reduces the amount ofcontrol or supervision that the Attorney General and, through him,the President exercises over the investigation and prosecution of acertain class of alleged criminal activity. The Attorney General isnot allowed to appoint the individual of his choice; he does notdetermine the counsel's jurisdiction; and his


Page 696


power to remove a counsel is limited.[34] Nonetheless,the Act does give the Attorney General several means of supervisingor controlling the prosecutorial powers that may be wielded by anindependent counsel. Most importantly, the Attorney General retainsthe power to remove the counsel for "good cause," a power that wehave already concluded provides the Executive with substantialability to ensure that the laws are "faithfully executed" by anindependent counsel. No independent counsel may be appointedwithout a specific request by the Attorney General, and theAttorney General's decision not to request appointment if he finds"no reasonable grounds to believe that further investigation iswarranted" is committed to his unreviewable discretion. The Actthus gives the Executive a degree of control over the power toinitiate an investigation by the independent counsel. In addition,the jurisdiction of the independent counsel is defined withreference to the facts submitted by the Attorney General, and oncea counsel is appointed, the Act requires that the counsel abide byJustice Department policy unless it is not "possible" to do so.Notwithstanding the fact that the counsel is to some degree"independent" and free from executive supervision to a greaterextent than other federal prosecutors, in our view these featuresof the Act give the Executive Branch sufficient control over theindependent counsel to ensure that the President is able to performhis constitutionally assigned duties.


          Insum, we conclude today that it does not violate the AppointmentsClause for Congress to vest the appointment of independent counselin the Special Division; that the powers exercised by the SpecialDivision under the Act do not violate


Page 697


Article III; and that the Act does not violate theseparation-of-powers principle by impermissibly interfering withthe functions of the Executive Branch. The decision of the Court ofAppeals is therefore




          JusticeKENNEDY took no part in the consideration or decision of thiscase.


          Justice SCALIA, dissenting.


          Itis the proud boast of our democracy that we have "a government oflaws and not of men." Many Americans are familiar with that phrase;not many know its derivation. It comes from Part the First, ArticleXXX, of the Massachusetts Constitution of 1780, which reads in fullas follows:


                    "Inthe government of this Commonwealth, the legislative departmentshall never exercise the executive and judicial powers, or eitherof them: The executive shall never exercise the legislative andjudicial powers, or either of them: The judicial shall neverexercise the legislative and executive powers, or either of them:to the end it may be a government of laws and not of men."


          TheFramers of the Federal Constitution similarly viewed the principleof separation of powers as the absolutely central guarantee of ajust Government. In No. 47 of The Federalist, Madison wrote that"[n]o political truth is certainly of greater intrinsic value, oris stamped with the authority of more enlightened patrons ofliberty." The Federalist No. 47, p. 301 (C. Rossiter ed. 1961)(hereinafter Federalist). Without a secure structure of separatedpowers, our Bill of Rights would be worthless, as are the bills ofrights of many nations of the world that have adopted, or evenimproved upon, the mere words of ours.


          Theprinciple of separation of powers is expressed in our Constitutionin the first section of each of the first three Articles. ArticleI, § 1, provides that "[a]ll legislative Powers herein grantedshall be vested in a Congress of the United


Page 698


States, which shall consist of a Senate and House ofRepresentatives." Article III, § 1, provides that "[t]hejudicial Power of the United States, shall be vested in one supremeCourt, and in such inferior Courts as the Congress may from time totime ordain and establish." And the provision at issue here, Art.II, § 1, cl. 1, provides that "[t]he executive Power shall bevested in a President of the United States of America."


          Butjust as the mere words of a Bill of Rights are notself-effectuating, the Framers recognized "[t]he insufficiency of amere parchment delineation of the boundaries" to achieve theseparation of powers. Federalist No. 73, p. 442 (A. Hamilton)."[T]he great security," wrote Madison, "against a gradualconcentration of the several powers in the same department consistsin giving to those who administer each department the necessaryconstitutional means and personal motives to resist encroachmentsof the others. The provision for defense must in this, as in allother cases, be made commensurate to the danger of attack."Federalist No. 51, pp. 321-322. Madison continued:


                    "Butit is not possible to give to each department an equal power ofself-defense. In republican government, the legislative authoritynecessarily predominates. The remedy for this inconveniency is todivide the legislature into different branches; and to render them,by different modes of election and different principles of action,as little connected with each other as the nature of their commonfunctions and their common dependence on the society will admit. .. . As the weight of the legislative authority requires that itshould be thus divided, the weakness of the executive may require,on the other hand, that it should be fortified." Id., at322-323.


          Themajor "fortification" provided, of course, was the veto power. Butin addition to providing fortification, the Founders conspicuouslyand very consciously declined to sap the Executive's strength inthe same way they had weakened


Page 699


the Legislature: by dividing the executive power. Proposals tohave multiple executives, or a council of advisers with separateauthority were rejected. See 1 M. Farrand, Records of the FederalConvention of 1787, pp. 66, 71-74, 88, 91-92 (rev. ed. 1966); 2id., at 335-337, 533, 537, 542. Thus, while "[a]lllegislative Powers herein granted shall be vested in a Congress ofthe United States, which shall consist of a Senate and Houseof Representatives," U.S. Const., Art. I, § 1 (emphasisadded), "[t]he executive Power shall be vested in a President ofthe United States," Art. II, § 1, cl. 1 (emphasisadded).


          Thatis what this suit is about. Power. The allocation of power amongCongress, the President, and the courts in such fashion as topreserve the equilibrium the Constitution sought toestablish—so that "a gradual concentration of the severalpowers in the same department," Federalist No. 51, p. 321 (J.Madison), can effectively be resisted. Frequently an issue of thissort will come before the Court clad, so to speak, in sheep'sclothing: the potential of the asserted principle to effectimportant change in the equilibrium of power is not immediatelyevident, and must be discerned by a careful and perceptiveanalysis. But this wolf comes as a wolf.


          Thepresent case began when the Legislative and Executive Branchesbecame "embroiled in a dispute concerning the scope of thecongressional investigatory power," United States v. House ofRepresentatives of United States, 556 F.Supp. 150, 152 (DC1983), which—as is often the case with such interbranchconflicts—became quite acrimonious. In the course ofoversight hearings into the administration of the Superfund by theEnvironmental Protection Agency (EPA), two Subcommittees of theHouse of Representatives requested and then subpoenaed numerousinternal EPA documents. The President responded by personallydirecting the EPA Administrator not to turn over certain of thedocu-


Page 700


ments, see Memorandum of November 30, 1982, from PresidentReagan for the Administrator, Environmental Protection Agency,reprinted in H.R.Rep. No. 99-435, pp. 1166-1167 (1985), and byhaving the Attorney General notify the congressional Subcommitteesof this assertion of executive privilege, see Letters of November30, 1982, from Attorney General William French Smith to Hon. JohnD. Dingell and Hon. Elliott H. Levitas, reprinted, id., at1168-1177. In his decision to assert executive privilege, thePresident was counseled by appellee Olson, who was then AssistantAttorney General of the Department of Justice for the Office ofLegal Counsel, a post that has traditionally had responsibility forproviding legal advice to the President (subject to approval of theAttorney General). The House's response was to pass a resolutionciting the EPA Administrator, who had possession of the documents,for contempt. Contempt of Congress is a criminal offense. See 2U.S.C. § 192. The United States Attorney, however, a member ofthe Executive Branch, initially took no steps to prosecute thecontempt citation. Instead, the Executive Branch sought theimmediate assistance of the Third Branch by filing a civil actionasking the District Court to declare that the EPA Administrator hadacted lawfully in withholding the documents under a claim ofexecutive privilege. See ibid. The District Court declined(in my view correctly) to get involved in the controversy, andurged the other two branches to try "[c]ompromise and cooperation,rather than confrontation." 556 F.Supp., at 153. After furtherhaggling, the two branches eventually reached an agreement givingthe House Subcommittees limited access to the contesteddocuments.


          Congressdid not, however, leave things there. Certain Members of the Houseremained angered by the confrontation, particularly by the roleplayed by the Department of Justice. Specifically, the JudiciaryCommittee remained disturbed by the possibility that the Departmenthad persuaded the President to assert executive privilege despitereservations by the


Page 701


EPA; that the Department had "deliberately and unnecessarilyprecipitated a constitutional confrontation with Congress"; thatthe Department had not properly reviewed and selected the documentsas to which executive privilege was asserted; that the Departmenthad directed the United States Attorney not to present the contemptcertification involving the EPA Administrator to a grand jury forprosecution; that the Department had made the decision to sue theHouse of Representatives; and that the Department had notadequately advised and represented the President, the EPA, and theEPA Administrator. H.R.Rep. No. 99-435, p. 3 (1985) (describingunresolved "questions" that were the basis of the JudiciaryCommittee's investigation). Accordingly, staff counsel of the HouseJudiciary Committee were commissioned (apparently without theknowledge of many of the Committee's members, see id., at731) to investigate the Justice Department's role in thecontroversy. That investigation lasted 21/2 years, and produced a3,000-page report issued by the Committee over the vigorous dissentof all but one of its minority-party members. That report, whichamong other charges questioned the truthfulness of certainstatements made by Assistant Attorney General Olson duringtestimony in front of the Committee during the early stages of itsinvestigation, was sent to the Attorney General along with a formalrequest that he appoint an independent counsel to investigate Mr.Olson and others.


          As ageneral matter, the Act before us here requires the AttorneyGeneral to apply for the appointment of an independent counselwithin 90 days after receiving a request to do so, unless hedetermines within that period that "there are no reasonable groundsto believe that further investigation or prosecution is warranted."28 U.S.C. § 592(b)(1). As a practical matter, it would besurprising if the Attorney General had any choice (assuming thisstatute is constitutional) but to seek appointment of anindependent counsel to pursue the charges against the principalobject of the congressional


Page 702


request, Mr. Olson. Merely the political consequences (to himand the President) of seeming to break the law by refusing to do sowould have been substantial. How could it not be, the public wouldask, that a 3,000-page indictment drawn by our representatives over21/2 years does not even establish "reasonable grounds to believe"that further investigation or prosecution is warranted with respectto at least the principal alleged culprit? But the Act establishesmore than just practical compulsion. Although the Court's opinionasserts that the Attorney General had "no duty to comply with the[congressional] request," ante, at 695, that is not entirelyaccurate. He had a duty to comply unless he could concludethat there were "no reasonable grounds to believe," not thatprosecution was warranted, but merely that "furtherinvestigation " was warranted, 28 U.S.C. § 592(b)(1) (1982ed., Supp. V) (emphasis added), after a 90-day investigation inwhich he was prohibited from using such routine investigativetechniques as grand juries, plea bargaining, grants of immunity, oreven subpoenas, see § 592(a)(2). The Court also makes much ofthe fact that "the courts are specifically prevented from reviewingthe Attorney General's decision not to seek appointment, §592(f)." Ante, at 695. Yes,[1] but Congressis not prevented from reviewing it. The context of this statute isacrid with the smell of threatened impeachment. Where, as here, arequest for appointment of an inde-


Page 703


pendent counsel has come from the Judiciary Committee of eitherHouse of Congress, the Attorney General must, if he decides not toseek appointment, explain to that Committee why. See also 28 U.S.C.§ 595(c) (1982 ed., Supp. V) (independent counsel must reportto the House of Representatives information "that may constitutegrounds for an impeachment").


          Thus,by the application of this statute in the present case, Congresshas effectively compelled a criminal investigation of a high-levelappointee of the President in connection with his actions arisingout of a bitter power dispute between the President and theLegislative Branch. Mr. Olson may or may not be guilty of a crime;we do not know. But we do know that the investigation of him hasbeen commenced, not necessarily because the President or hisauthorized subordinates believe it is in the interest of the UnitedStates, in the sense that it warrants the diversion of resourcesfrom other efforts, and is worth the cost in money and in possibledamage to other governmental interests; and not even, leaving asidethose normally considered factors, because the President or hisauthorized subordinates necessarily believe that an investigationis likely to unearth a violation worth prosecuting; but onlybecause the Attorney General cannot affirm, as Congress demands,that there are no reasonable grounds to believe that furtherinvestigation is warranted. The decisions regarding the scope ofthat further investigation, its duration, and, finally, whether ornot prosecution should ensue, are likewise beyond the control ofthe President and his subordinates.


          Ifto describe this case is not to decide it, the concept of agovernment of separate and coordinate powers no longer has meaning.The Court devotes most of its attention to such relativelytechnical details as the Appointments Clause and the removal power,addressing briefly and only at the end of its opinion theseparation of powers. As my prologue sug-


Page 704


gests, I think that has it backwards. Our opinions are full ofthe recognition that it is the principle of separation of powers,and the inseparable corollary that each department's "defense must. . . be made commensurate to the danger of attack," Federalist No.51, p. 322 (J. Madison), which gives comprehensible content to theAppointments Clause, and determines the appropriate scope of theremoval power. Thus, while I will subsequently discuss why ourappointments and removal jurisprudence does not support today'sholding, I begin with a consideration of the fountainhead of thatjurisprudence, the separation and equilibration of powers.


          First,however, I think it well to call to mind an important and unusualpremise that underlies our deliberations, a premise not expresslycontradicted by the Court's opinion, but in my view not faithfullyobserved. It is rare in a case dealing, as this one does, with theconstitutionality of a statute passed by the Congress of the UnitedStates, not to find anywhere in the Court's opinion the usual,almost formulary caution that we owe great deference to Congress'view that what it has done is constitutional, see, e.g., Rostkerv. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 2651, 69 L.Ed.2d478 (1981); Fullilove v. Klutznick, 448 U.S. 448, 472, 100S.Ct. 2758, 2771, 65 L.Ed.2d 902 (1980) (opinion of Burger, C.J.);Columbia Broadcasting System, Inc. v. Democratic NationalCommittee, 412 U.S. 94, 102, 93 S.Ct. 2080, 2086, 36 L.Ed.2d772 (1973); United States v. National Dairy Products Corp.,372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963), and thatwe will decline to apply the statute only if the presumption ofconstitutionality can be overcome, see Fullilove, supra, 448U.S., at 473, 100 S.Ct., at 2772; Columbia Broadcasting,supra, 412 U.S., at 103, 93 S.Ct., at 2087. That caution is notrecited by the Court in the present case because it does notapply. Where a private citizen challenges action of theGovernment on grounds unrelated to separation of powers, harmoniousfunctioning of the system demands that we ordinarily give somedeference, or a presumption of validity, to the actions of thepolitical branches in what is agreed, between themselves at least,to be within their respective spheres. But where the issue pertainsto separation of pow-


Page 705


ers, and the political branches are (as here) in disagreement,neither can be presumed correct. The reason is stated concisely byMadison: "The several departments being perfectly co-ordinate bythe terms of their common commission, neither of them, it isevident, can pretend to an exclusive or superior right of settlingthe boundaries between their respective powers. . . ." FederalistNo. 49, p. 314. The playing field for the present case, in otherwords, is a level one. As one of the interested and coordinateparties to the underlying constitutional dispute, Congress, no morethan the President, is entitled to the benefit of the doubt.


          Torepeat, Article II, § 1, cl. 1, of the Constitutionprovides:


                    "Theexecutive Power shall be vested in a President of the UnitedStates."


          As Idescribed at the outset of this opinion, this does not mean someof the executive power, but all of the executive power.It seems to me, therefore, that the decision of the Court ofAppeals invalidating the present statute must be upheld onfundamental separation-of-powers principles if the following twoquestions are answered affirmatively: (1) Is the conduct of acriminal prosecution (and of an investigation to decide whether toprosecute) the exercise of purely executive power? (2) Does thestatute deprive the President of the United States of exclusivecontrol over the exercise of that power? Surprising to say, theCourt appears to concede an affirmative answer to both questions,but seeks to avoid the inevitable conclusion that since the statutevests some purely executive power in a person who is not thePresident of the United States it is void.


          TheCourt concedes that "[t]here is no real dispute that the functionsperformed by the independent counsel are 'executive'," though itqualifies that concession by adding "in the sense that they are lawenforcement functions that typically have been undertaken byofficials within the Executive Branch." Ante, at 691. Thequalifier adds nothing but at-


Page 706


mosphere. In what other sense can one identify "theexecutive Power" that is supposed to be vested in the President(unless it includes everything the Executive Branch is given to do)except by reference to what has always andeverywhere—if conducted by government at all—beenconducted never by the legislature, never by the courts, and alwaysby the executive. There is no possible doubt that the independentcounsel's functions fit this description. She is vested with the"full power and independent authority to exercise allinvestigative and prosecutorial functions and powers of theDepartment of Justice [and] the Attorney General." 28 U.S.C. §594(a) (1982 ed., Supp. V) (emphasis added). Governmentalinvestigation and prosecution of crimes is a quintessentiallyexecutive function. See Heckler v. Chaney, 470 U.S. 821,832, 105 S.Ct. 1649, 1656, 84 L.Ed.2d 714 (1985); Buckley v.Valeo, 424 U.S. 1, 138, 96 S.Ct. 612, 691, 46 L.Ed.2d 659(1976); United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct.3090, 3100, 41 L.Ed.2d 1039 (1974).


          Asfor the second question, whether the statute before us deprives thePresident of exclusive control over that quintessentially executiveactivity: The Court does not, and could not possibly, assert thatit does not. That is indeed the whole object of the statute.Instead, the Court points out that the President, through hisAttorney General, has at least some control. That concessionis alone enough to invalidate the statute, but I cannot refrainfrom pointing out that the Court greatly exaggerates the extent ofthat "some" Presidential control. "Most importan[t]" among thesecontrols, the Court asserts, is the Attorney General's "power toremove the counsel for 'good cause.' " Ante, at 696. This issomewhat like referring to shackles as an effective means oflocomotion. As we recognized in Humphrey's Executor v. UnitedStates, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611(1935)—indeed, what Humphrey's Executor was allabout—limiting removal power to "good cause" is an impedimentto, not an effective grant of, Presidential control. We said thatlimitation was necessary with respect to members of the FederalTrade Commission, which we found to be "an agency of thelegislative and judicial


Page 707


departments," and "wholly disconnected from the executivedepartment," id., at 630, 55 S.Ct., at 875, because "it isquite evident that one who holds his office only during thepleasure of another, cannot be depended upon to maintain anattitude of independence against the latter's will." Id., at629, 55 S.Ct., at 874. What we in Humphrey's Executor foundto be a means of eliminating Presidential control, the Court todayconsiders the "most importan[t]" means of assuring Presidentialcontrol. Congress, of course, operated under no such illusion whenit enacted this statute, describing the "good cause" limitation as"protecting the independent counsel's ability to act independentlyof the President's direct control" since it permits removal onlyfor "misconduct." H.R.Conf.Rep. 100-452, p. 37 (1987).


          Movingon to the presumably "less important" controls that the Presidentretains, the Court notes that no independent counsel may beappointed without a specific request from the Attorney General. AsI have discussed above, the condition that renders such a requestmandatory (inability to find "no reasonable grounds to believe"that further investigation is warranted) is so insubstantial thatthe Attorney General's discretion is severely confined. And oncethe referral is made, it is for the Special Division to determinethe scope and duration of the investigation. See 28 U.S.C. §593(b) (1982 ed., Supp. V). And in any event, the limited powerover referral is irrelevant to the question whether, onceappointed, the independent counsel exercises executive powerfree from the President's control. Finally, the Court points outthat the Act directs the independent counsel to abide by generalJustice Department policy, except when not "possible." See 28U.S.C. § 594(f) (1982 ed., Supp. V). The exception alone showsthis to be an empty promise. Even without that, however, one wouldbe hard put to come up with many investigative or prosecutorial"policies" (other than those imposed by the Constitution or byCongress through law) that are absolute. Almost all investigativeand prosecutorial deci-


Page 708


sions including the ultimate decision whether, after a technicalviolation of the law has been found, prosecution is warrantedinvolve the balancing of innumerable legal and practicalconsiderations. Indeed, even political considerations (in thenonpartisan sense) must be considered, as exemplified by the recentdecision of an independent counsel to subpoena the formerAmbassador of Canada, producing considerable tension in ourrelations with that country. See N.Y. Times, May 29, 1987, p. A12,col. 1. Another pre-eminently political decision is whether gettinga conviction in a particular case is worth the disclosure ofnational security information that would be necessary. The JusticeDepartment and our intelligence agencies are often in disagreementon this point, and the Justice Department does not always win. Thepresent Act even goes so far as specifically to take the resolutionof that dispute away from the President and give it to theindependent counsel. 28 U.S.C. § 594(a)(6). In sum, thebalancing of various legal, practical, and politicalconsiderations, none of which is absolute, is the very essence ofprosecutorial discretion. To take this away is to remove the coreof the prosecutorial function, and not merely "some" Presidentialcontrol.


          As Ihave said, however, it is ultimately irrelevant how much thestatute reduces Presidential control. The case is over when theCourt acknowledges, as it must, that "[i]t is undeniable that theAct reduces the amount of control or supervision that the AttorneyGeneral and, through him, the President exercises over theinvestigation and prosecution of a certain class of allegedcriminal activity." Ante, at 675. It effects a revolution inour constitutional jurisprudence for the Court, once it hasdetermined that (1) purely executive functions are at issue here,and (2) those functions have been given to a person whose actionsare not fully within the supervision and control of the President,nonetheless to proceed further to sit in judgment of whether "thePresident's need to control the exercise of [the independentcounsel's]


Page 709


discretion is so central to the functioning of theExecutive Branch" as to require complete control, ante, at693 (emphasis added), whether the conferral of his powers uponsomeone else "sufficiently deprives the President of controlover the independent counsel to interfere impermissibly with [his]constitutional obligation to ensure the faithful execution of thelaws," ante, at 693 (emphasis added), and whether "the Actgive[s] the Executive Branch sufficient control over theindependent counsel to ensure that the President is able to performhis constitutionally assigned duties," ante, at 696(emphasis added). It is not for us to determine, and we have neverpresumed to determine, how much of the purely executive powers ofgovernment must be within the full control of the President. TheConstitution prescribes that they all are.


          Theutter incompatibility of the Court's approach with ourconstitutional traditions can be made more clear, perhaps, byapplying it to the powers of the other two branches. Is itconceivable that if Congress passed a statute depriving itself ofless than full and entire control over some insignificant area oflegislation, we would inquire whether the matter was "socentral to the functioning of the Legislative Branch" as reallyto require complete control, or whether the statute gives Congress"sufficient control over the surrogate legislator to ensurethat Congress is able to perform its constitutionally assignedduties"? Of course we would have none of that. Once we determinedthat a purely legislative power was at issue we would require it tobe exercised, wholly and entirely, by Congress. Or to bring thepoint closer to home, consider a statute giving to non-Article IIIjudges just a tiny bit of purely judicial power in a relativelyinsignificant field, with substantial control, though not totalcontrol, in the courts—perhaps "clear error" review, whichwould be a fair judicial equivalent of the Attorney General's "forcause" removal power here. Is there any doubt that we would notpause to inquire whether the matter was "so central tothe


Page 710


functioning of the Judicial Branch" as really to requirecomplete control, or whether we retained "sufficient controlover the matters to be decided that we are able to perform ourconstitutionally assigned duties"? We would say that our"constitutionally assigned duties" include complete controlover all exercises of the judicial power—or, as the pluralityopinion said in Northern Pipeline Construction Co. v. MarathonPipe Line Co., 458 U.S. 50, 58-59, 102 S.Ct. 2858, 2865, 73L.Ed.2d 598 (1982): "The inexorable command of [Article III] isclear and definite: The judicial power of the United States must beexercised by courts having the attributes prescribed in Art. III."We should say here that the President's constitutionally assignedduties include complete control over investigation andprosecution of violations of the law, and that the inexorablecommand of Article II is clear and definite: the executive powermust be vested in the President of the United States.


          Isit unthinkable that the President should have such exclusive power,even when alleged crimes by him or his close associates are atissue? No more so than that Congress should have the exclusivepower of legislation, even when what is at issue is its ownexemption from the burdens of certain laws. See Civil Rights Act of1964, Title VII, 42 U.S.C. § 2000e et seq. (prohibiting"employers," not defined to include the United States, fromdiscriminating on the basis of race, color, religion, sex, ornational origin). No more so than that this Court should have theexclusive power to pronounce the final decision on justiciablecases and controversies, even those pertaining to theconstitutionality of a statute reducing the salaries of theJustices. See United States v. Will, 449 U.S. 200, 211-217,101 S.Ct. 471, 478-482, 66 L.Ed.2d 392 (1980). A system of separateand coordinate powers necessarily involves an acceptance ofexclusive power that can theoretically be abused. As we reiteratethis very day, "[i]t is a truism that constitutional protectionshave costs." Coy v. Iowa, 487 U.S. 1012, 1020, 108 S.Ct.2798, ----, 101 L.Ed.2d 857 (1988). While the separation of powersmay prevent us from righting every wrong, it does so in order toensure that we do not lose lib-


Page 711


erty. The checks against any branch's abuse of its exclusivepowers are twofold: First, retaliation by one of the other branch'suse of its exclusive powers: Congress, for example, canimpeach the executive who willfully fails to enforce the laws; theexecutive can decline to prosecute under unconstitutional statutes,cf. United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90L.Ed. 1252 (1946); and the courts can dismiss maliciousprosecutions. Second, and ultimately, there is the political checkthat the people will replace those in the political branches (thebranches more "dangerous to the political rights of theConstitution," Federalist No. 78, p. 465) who are guilty of abuse.Political pressures produced special prosecutors—for TeapotDome and for Watergate, for example—long before this statutecreated the independent counsel. See Act of Feb. 8, 1924, ch. 16,43 Stat. 5-6; 38 Fed.Reg. 30738 (1973).


          TheCourt has, nonetheless, replaced the clear constitutionalprescription that the executive power belongs to the President witha "balancing test." What are the standards to determine how thebalance is to be struck, that is, how much removal of Presidentialpower is too much? Many countries of the world get along with anexecutive that is much weaker than ours—in fact, entirelydependent upon the continued support of the legislature. Once wedepart from the text of the Constitution, just where short of thatdo we stop? The most amazing feature of the Court's opinion is thatit does not even purport to give an answer. It simplyannounces, with no analysis, that the ability to control thedecision whether to investigate and prosecute the President'sclosest advisers, and indeed the President himself, is not "socentral to the functioning of the Executive Branch" as to beconstitutionally required to be within the President's control.Apparently that is so because we say it is so. Having abandoned asthe basis for our decision-making the text of Article II that "theexecutive Power" must be vested in the President, the Court doesnot even attempt to craft a substitute criterion—a"justiciable standard," see, e.g., Baker v. Carr,


Page 712


369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962);Coleman v. Miller, 307 U.S. 433, 454-455, 59 S.Ct. 972, 982,83 L.Ed. 1385 (1939), however remote from theConstitution—that today governs, and in the future willgovern, the decision of such questions. Evidently, the governingstandard is to be what might be called the unfettered wisdom of amajority of this Court, revealed to an obedient people on acase-by-case basis. This is not only not the government of lawsthat the Constitution established; it is not a government of lawsat all.


          Inmy view, moreover, even as an ad hoc, standardless judgment theCourt's conclusion must be wrong. Before this statute was passed,the President, in taking action disagreeable to the Congress, or anexecutive officer giving advice to the President or testifyingbefore Congress concerning one of those many matters on which thetwo branches are from time to time at odds, could be assured thathis acts and motives would be adjudged insofar as the decisionwhether to conduct a criminal investigation and to prosecute isconcerned—in the Executive Branch, that is, in a forumattuned to the interests and the policies of the Presidency. Thatwas one of the natural advantages the Constitution gave to thePresidency, just as it gave Members of Congress (and their staffs)the advantage of not being prosecutable for anything said or donein their legislative capacities. See U.S. Const., Art. I, § 6,cl. 1; Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614,33 L.Ed.2d 583 (1972). It is the very object of this legislation toeliminate that assurance of a sympathetic forum. Unless it canhonestly be said that there are "no reasonable grounds to believe"that further investigation is warranted, further investigation mustensue; and the conduct of the investigation, and determination ofwhether to prosecute, will be given to a person neither selected bynor subject to the control of the President—who will in turnassemble a staff by finding out, presumably, who is willing to putaside whatever else they are doing, for an indeterminate period oftime, in order to investigate and prosecute the President or aparticular named individual in his administration. The prospect isfrightening (as I will dis-


Page 713


cuss at some greater length at the conclusion of this opinion)even outside the context of a bitter, interbranch politicaldispute. Perhaps the boldness of the President himself will not beaffected—though I am not even sure of that. (How much easierit is for Congress, instead of accepting the political damageattendant to the commencement of impeachment proceedings againstthe President on trivial grounds—or, for that matter, howeasy it is for one of the President's political foes outside ofCongress simply to trigger a debilitating criminal investigation ofthe Chief Executive under this law.) But as for the President'shigh-level assistants, who typically have no political base ofsupport, it is as utterly unrealistic to think that they will notbe intimidated by this prospect, and that their advice to him andtheir advocacy of his interests before a hostile Congress will notbe affected, as it would be to think that the Members of Congressand their staffs would be unaffected by replacing the Speech orDebate Clause with a similar provision. It deeply wounds thePresident, by substantially reducing the President's ability toprotect himself and his staff. That is the whole object of the law,of course, and I cannot imagine why the Court believes it does notsucceed.


          Besidesweakening the Presidency by reducing the zeal of his staff, it mustalso be obvious that the institution of the independent counselenfeebles him more directly in his constant confrontations withCongress, by eroding his public support. Nothing is so politicallyeffective as the ability to charge that one's opponent and hisassociates are not merely wrongheaded, naive, ineffective, but, inall probability, "crooks." And nothing so effectively gives anappearance of validity to such charges as a Justice Departmentinvestigation and, even better, prosecution. The present statuteprovides ample means for that sort of attack, assuring that massiveand lengthy investigations will occur, not merely when the JusticeDepartment in the application of its usual standards believes theyare called for, but whenever it


Page 714


cannot be said that there are "no reasonable grounds to believe"they are called for. The statute's highly visible proceduresassure, moreover, that unlike most investigations these will bewidely known and prominently displayed. Thus, in the 10 years sincethe institution of the independent counsel was established by law,there have been nine highly publicized investigations, a source ofconstant political damage to two administrations. That they couldnot remotely be described as merely the application of "normal"investigatory and prosecutory standards is demonstrated by, inaddition to the language of the statute ("no reasonable grounds tobelieve"), the following facts: Congress appropriates approximately$50 million annually for general legal activities, salaries, andexpenses of the Criminal Division of the Department of Justice. See1989 Budget Request of the Department of Justice, Hearings before aSubcommittee of the House Committee on Appropriations, 100th Cong.,2d Sess., pt. 6, pp. 284-285 (1988) (DOJ Budget Request). Thismoney is used to support "[f]ederal appellate activity,""[o]rganized crime prosecution," "[p]ublic integrity" and "[f]raud"matters, "[n]arcotic & dangerous drug prosecution," "[i]nternalsecurity," "[g]eneral litigation and legal advice," "specialinvestigations," "[p]rosecution support," "[o]rganized crime drugenforcement," and "[m]anagement & administration." Id.,at 284. By comparison, between May 1986 and August 1987, fourindependent counsel (not all of whom were operating for that entireperiod of time) spent almost $5 million (1/10th of the amountannually appropriated to the entire Criminal Division), spendingalmost $1 million in the month of August 1987 alone. See WashingtonPost, Oct. 21, 1987, p. A21, col. 5. For fiscal year 1989, theDepartment of Justice has requested $52 million for the entireCriminal Division, DOJ Budget Request 285, and $7 million tosupport the activities of independent counsel, id., at25.


          Insum, this statute does deprive the President of substantial controlover the prosecutory functions performed by the


Page 715


independent counsel, and it does substantially affect thebalance of powers. That the Court could possibly conclude otherwisedemonstrates both the wisdom of our former constitutional system,in which the degree of reduced control and political impairmentwere irrelevant, since all purely executive power had to bein the President; and the folly of the new system of standardlessjudicial allocation of powers we adopt today.


          As Iindicated earlier, the basic separation-of-powers principles I havediscussed are what give life and content to our jurisprudenceconcerning the President's power to appoint and remove officers.The same result of unconstitutionality is therefore plainlyindicated by our case law in these areas.


          ArticleII, § 2, cl. 2, of the Constitution provides as follows:


          "[ThePresident] shall nominate, and by and with the Advice and Consentof the the Senate, shall appoint Ambassadors, other publicMinisters and Consuls, Judges of the supreme Court, and all otherOfficers of the United States, whose Appointments are not hereinotherwise provided for, and which shall be established by Law: butthe Congress may by Law vest the Appointment of such inferiorOfficers, as they think proper, in the President alone, in theCourts of Law, or in the Heads of Departments."


          Becauseappellant (who all parties and the Court agree is an officer of theUnited States, ante, at 671, n. 12) was not appointed by thePresident with the advice and consent of the Senate, but rather bythe Special Division of the United States Court of Appeals, herappointment is constitutional only if (1) she is an "inferior"officer within the meaning of the above Clause, and (2) Congressmay vest her appointment in a court of law.


          Asto the first of these inquiries, the Court does not attempt to"decide exactly" what establishes the line between


Page 716


principal and "inferior" officers, but is confident that,whatever the line may be, appellant "clearly falls on the 'inferiorofficer' side" of it. Ante, at 671. The Court gives threereasons: First, she "is subject to removal by a higherExecutive Branch official," namely, the Attorney General. Ibid.Second, she is "empowered by the Act to perform only certain,limited duties." Ante, at Ibid. Third, heroffice is "limited in jurisdiction" and "limited in tenure."Ante, at 672.


          Thefirst of these lends no support to the view that appellant is aninferior officer. Appellant is removable only for "good cause" orphysical or mental incapacity. 28 U.S.C. § 596(a)(1) (1982ed., Supp. V). By contrast, most (if not all) principalofficers in the Executive Branch may be removed by the Presidentat will. I fail to see how the fact that appellant is moredifficult to remove than most principal officers helps to establishthat she is an inferior officer. And I do not see how it couldpossibly make any difference to her superior or inferior statusthat the President's limited power to remove her must be exercisedthrough the Attorney General. If she were removable at will by theAttorney General, then she would be subordinate to him and thusproperly designated as inferior; but the Court essentially admitsthat she is not subordinate. See ante, at 671. If it werecommon usage to refer to someone as "inferior" who is subject toremoval for cause by another, then one would say that the Presidentis "inferior" to Congress.


          Thesecond reason offered by the Court—that appellant performsonly certain, limited duties—may be relevant to whether sheis an inferior officer, but it mischaracterizes the extent of herpowers. As the Court states: "Admittedly, the Act delegates toappellant [the] 'full power and independent authority toexercise all investigative and prosecutorial functions and powersof the Department of Justice.'" Ibid., quoting 28 U.S.C.§ 594(a) (1982 ed., Supp. V) (emphasis


Page 717


added).[2] Moreover, in addition to this general grantof power she is given a broad range of specifically enumeratedpowers, including a power not even the Attorney General possesses:to "contes[t] in court . . . any claim of privilege or attempt towithhold evidence on grounds of national security." §594(a)(6).[3] Once all of this is "admitted," it seems


Page 718


to me impossible to maintain that appellant's authority is so"limited" as to render her an inferior officer. The Court seeks tobrush this away by asserting that the independent counsel's powerdoes not include any authority to "formulate policy for theGovernment or the Executive Branch." Ante, at 671. But thesame could be said for all officers of the Government, with thesingle exception of the President. All of them only formulatepolicy within their respective spheres of responsibility—asdoes the independent counsel, who must comply with the policies ofthe Department of Justice only to the extent possible. §594(f).


          Thefinal set of reasons given by the Court for why the independentcounsel clearly is an inferior officer emphasizes the limitednature of her jurisdiction and tenure. Taking the latter first, Ifind nothing unusually limited about the independent counsel'stenure. To the contrary, unlike most high-ranking Executive Branchofficials, she continues to serve until she (or the SpecialDivision) decides that her work is substantially completed. See§§ 596(b)(1), (b)(2). This particular independentprosecutor has already served more than two years, which is atleast as long as many Cabinet officials. As to the scope of herjurisdiction, there can be no doubt that is small (though far fromunimportant). But within it she exercises more than the full powerof the Attorney General. The Ambassador to Luxembourg is notanything less than a principal officer, simply because Luxembourgis small. And the federal judge who sits in a small district is notfor that reason "inferior in rank and authority." If the merefragmentation of executive responsibilities into small compartmentssuffices to render the heads of each of those compartments inferiorofficers, then Congress could deprive the President of the right toappoint his chief law enforcement officer by dividing up theAttorney General's responsibilities among a number of "lesser"functionaries.


Page 719


          Morefundamentally, however, it is not clear from the Court's opinionwhy the factors it discusses—even if applied correctly to thefacts of this case—are determinative of the question ofinferior officer status. The apparent source of these factors is astatement in United States v. Germaine, 99 U.S. (9 Otto)508, 511 25 L.Ed. 482 (1879) (discussing United States v.Hartwell, 6 Wall. 385, 393, 18 L.Ed. 830 (1868)), that "theterm [officer] embraces the ideas of tenure, duration, emolument,and duties." See ante, at 672. Besides the fact that thiswas dictum, it was dictum in a case where the distinguishingcharacteristics of inferior officers versus superior officers werein no way relevant, but rather only the distinguishingcharacteristics of an "officer of the United States" (to which thecriminal statute at issue applied) as opposed to a mereemployee. Rather than erect a theory of who is an inferiorofficer on the foundation of such an irrelevancy, I think itpreferable to look to the text of the Constitution and the divisionof power that it establishes. These demonstrate, I think, that theindependent counsel is not an inferior officer because she is notsubordinate to any officer in the Executive Branch (indeed,not even to the President). Dictionaries in use at the time of theConstitutional Convention gave the word "inferiour" two meaningswhich it still bears today: (1) "[l]ower in place, . . . station, .. . rank of life, . . . value or excellency," and (2)"[s]ubordinate." S. Johnson, Dictionary of the English Language(6th ed. 1785). In a document dealing with the structure (theconstitution) of a government, one would naturally expect the wordto bear the latter meaning—indeed, in such a context it wouldbe unpardonably careless to use the word unless arelationship of subordination was intended. If what was meant wasmerely "lower in station or rank," one would use instead a termsuch as "lesser officers." At the only other point in theConstitution at which the word "inferior" appears, it plainlyconnotes a relationship of subordination. Article III vests thejudicial power of the United States in "one supreme Court, and insuch inferior Courts as


Page 720


the Congress may from time to time ordain and establish." U.S.Const., Art. III, § 1 (emphasis added). In Federalist No. 81,Hamilton pauses to describe the "inferior" courts authorized byArticle III as inferior in the sense that they are "subordinate" tothe Supreme Court. See id., 6 Wall. at 485, n., 490, n.


          That"inferior" means "subordinate" is also consistent with what littlewe know about the evolution of the Appointments Clause. Asoriginally reported to the Committee on Style, the AppointmentsClause provided no "exception" from the standard manner ofappointment (President with the advice and consent of the Senate)for inferior officers. 2 M. Farrand, Records of the FederalConvention of 1787, pp. 498-499, 599 (rev. ed. 1966). On September15, 1787, the last day of the Convention before the proposedConstitution was signed, in the midst of a host of minor changesthat were being considered, Gouverneur Morris moved to add theexceptions clause. Id., at 627. No great debate ensued; theonly disagreement was over whether it was necessary at all.Id., at 627-628. Nobody thought that it was a fundamentalchange, excluding from the President's appointment power and theSenate's confirmation power a category of officers who mightfunction on their own, outside the supervision of those appointedin the more cumbersome fashion. And it is significant that in thevery brief discussion Madison mentions (as in apparent contrast tothe "inferior officers" covered by the provision) "SuperiorOfficers." Id., at 637. Of course one is not a "superiorofficer" without some supervisory responsibility, just as, Isuggest, one is not an "inferior officer" within the meaning of theprovision under discussion unless one is subject to supervision bya "superior officer." It is perfectly obvious, therefore, both fromthe relative brevity of the discussion this addition received, andfrom the content of that discussion, that it was intended merely tomake clear (what Madison thought already was clear, see id.,at 627) that those officers appointed by the President withSenate


Page 721


approval could on their own appoint their subordinates, whowould, of course, by chain of command still be under the directcontrol of the President.


          Thisinterpretation is, moreover, consistent with our admittedly sketchyprecedent in this area. For example, in United States v.Eaton, 169 U.S. 331, 18 S.Ct. 374, 42 L.Ed. 767 (1898), we heldthat the appointment by an Executive Branch official other than thePresident of a "vice-consul," charged with the duty of temporarilyperforming the function of the consul, did not violate theAppointments Clause. In doing so, we repeatedly referred to the"vice-consul" as a "subordinate" officer. Id., at 343, 18S.Ct., at 879. See also United States v. Germaine, supra, 9Otto at 511 (comparing "inferior" commissioners and bureau officersto heads of department, describing the former as "mere . . .subordinates") (dicta); United States v. Hartwell, supra, 6Wall. at 394 (describing clerk appointed by Assistant Treasurerwith approval of Secretary of the Treasury as a "subordinateoffice[r]") (dicta). More recently, in United States v.Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), wenoted that the Attorney General's appointment of the WatergateSpecial Prosecutor was made pursuant to the Attorney General's"power to appoint subordinate officers to assist him in thedischarge of his duties." Id., at 694, 94 S.Ct., at 3100(emphasis added). The Court's citation of Nixon as supportfor its view that the independent counsel is an inferior officer issimply not supported by a reading of the case. We explicitly statedthat the Special Prosecutor was a "subordinate office[r],"ibid., because, in the end, the President or the AttorneyGeneral could have removed him at any time, if by no other meansthan amending or revoking the regulation defining his authority.Id., at 696, 94 S.Ct., at 3101. Nor are any of the othercases cited by the Court in support of its view inconsistent withthe natural reading that an inferior officer must at least besubordinate to another officer of the United States. In Ex parteSiebold, 100 U.S. (10 Otto) 371, 25 L.Ed. 717 (1880), we upheldthe appointment by a court of federal "Judges of Election," whowere charged with various duties involving the oversee-


Page 722


ing of local congressional elections. Contrary to the Court'sassertion, see ante, at 673, we did not specifically findthat these officials were inferior officers for purposes of theAppointments Clause, probably because no one had contended thatthey were principal officers. Nor can the case be said to representeven an assumption on our part that they were inferior withoutbeing subordinate. The power of assisting in the judging ofelections that they were exercising was assuredly not a purelyexecutive power, and if we entertained any assumption it wasprobably that they, like the marshals who assisted them, seeSiebold, 100 U.S. (10 Otto), at 380, were subordinate to thecourts, see id., 10 Otto at 397. Similarly, in Go-BartImporting Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75L.Ed. 374 (1931), where we held that United States commissionerswere inferior officers, we made plain that they were subordinate tothe district courts which appointed them: "The commissioner actednot as a court, or as a judge of any court, but as a mere officerof the district court in proceedings of which that court hadauthority to take control at any time." Id., at 354, 51S.Ct., at 157.


          Tobe sure, it is not a sufficient condition for "inferior"officer status that one be subordinate to a principal officer. Evenan officer who is subordinate to a department head can be aprincipal officer. That is clear from the brief exchange followingGouverneur Morris' suggestion of the addition of the exceptionsclause for inferior officers. Madison responded:


          "Itdoes not go far enough if it be necessary at all—SuperiorOfficers below Heads of Departments ought in some cases to havethe appointment of the lesser offices." 2 M. Farrand, Records ofthe Federal Convention, of 1787, p. 627 (rev. ed. 1966) (emphasisadded).


          Butit is surely a necessary condition for inferior officerstatus that the officer be subordinate to another officer.


          Theindependent counsel is not even subordinate to the President. TheCourt essentially admits as much, noting that "appellant may not be'subordinate' to the Attorney Gen-


Page 723


eral (and the President) insofar as she possesses a degree ofindependent discretion to exercise the powers delegated to herunder the Act." Ante, at 671. In fact, there is no doubtabout it. As noted earlier, the Act specifically grants her the"full power and independent authority to exerciseall investigative and prosecutorial functions of theDepartment of Justice," 28 U.S.C. § 594(a) (1982 ed., Supp.V), and makes her removable only for "good cause," a limitationspecifically intended to ensure that she be independent of,not subordinate to, the President and the Attorney General.See H.R.Conf.Rep. No. 100-452, p. 37 (1987).


          Becauseappellant is not subordinate to another officer, she is not an"inferior" officer and her appointment other than by the Presidentwith the advice and consent of the Senate is unconstitutional.


          Iwill not discuss at any length why the restrictions upon theremoval of the independent counsel also violate our establishedprecedent dealing with that specific subject. For most of it, Isimply refer the reader to the scholarly opinion of Judge Silbermanfor the Court of Appeals below. See In re Sealed Case, 267U.S.App.D.C. 178, 838 F.2d 476 (1988). I cannot avoid commenting,however, about the essence of what the Court has done to ourremoval jurisprudence today.


          Thereis, of course, no provision in the Constitution stating who mayremove executive officers, except the provisions for removal byimpeachment. Before the present decision it was established,however, (1) that the President's power to remove principalofficers who exercise purely executive powers could not berestricted, see Myers v. United States, 272 U.S. 52, 127, 47S.Ct. 21, 28-29, 71 L.Ed. 160 (1926), and (2) that his power toremove inferior officers who exercise purely executive powers, andwhose appointment Congress had removed from the usual procedure ofPresidential appointment with Senate consent, could be restricted,at least where the appointment had been made by


Page 724


an officer of the Executive Branch, see ibid.; United Statesv. Perkins, 116 U.S. 483, 485, 6 S.Ct. 449, 450, 29 L.Ed. 700(1886).[4]


          TheCourt could have resolved the removal power issue in this case bysimply relying upon its erroneous conclusion that the independentcounsel was an inferior officer, and then extending our holdingthat the removal of inferior officers appointed by the Executivecan be restricted, to a new holding that even the removal ofinferior officers appointed by the courts can be restricted. Thatwould in my view be a considerable and unjustified extension,giving the Executive full discretion in neither theselection nor the removal of a purely executive officer. Thecourse the Court has chosen, however, is even worse.


          Sinceour 1935 decision in Humphrey's Executor v. United States,295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611—which wasconsidered by many at the time the product of an activist, anti-NewDeal Court bent on reducing the power of President FranklinRoosevelt—it has been established that the line ofpermissible restriction upon removal of principal officers lies atthe point at which the powers exercised by those officers are nolonger purely executive. Thus, removal restrictions have beengenerally regarded as lawful for so-called "independentregulatory


Page 725


agencies," such as the Federal Trade Commission, seeibid.; 15 U.S.C. § 41, the Interstate CommerceCommission, see 49 U.S.C. § 10301(c) (1982 ed., Supp. IV), andthe Consumer Product Safety Commission, see 15 U.S.C. §2053(a), which engage substantially in what has been called the"quasi-legislative activity" of rulemaking, and for members ofArticle I courts, such as the Court of Military Appeals, see 10U.S.C. § 867(a)(2), who engage in the "quasi-judicial"function of adjudication. It has often been observed, correctly inmy view, that the line between "purely executive" functions and"quasi-legislative" or "quasi-judicial" functions is not a clearone or even a rational one. See ante, at 689-690; Bowsherv. Synar, 478 U.S. 714, 761, n. 3, 106 S.Ct. 3181, 3206, n. 3(1986) (WHITE, J., dissenting); FTC v. Ruberoid Co., 343U.S. 470, 487-488, 72 S.Ct. 800, 810, 96 L.Ed. 1081 (1952)(Jackson, J., dissenting). But at least it permitted theidentification of certain officers, and certain agencies, whosefunctions were entirely within the control of the President.Congress had to be aware of that restriction in its legislation.Today, however, Humphrey's Executor is swept into thedustbin of repudiated constitutional principles. "[O]ur presentconsidered view," the Court says, "is that the determination ofwhether the Constitution allows Congress to impose a 'goodcause'-type restriction on the President's power to remove anofficial cannot be made to turn on whether or not that official isclassified as 'purely executive.' " Ante, at 689. WhatHumphrey's Executor (and presumably Myers ) reallymeans, we are now told, is not that there are any "rigid categoriesof those officials who may or may not be removed at will by thePresident," but simply that Congress cannot "interefere with thePresident's exercise of the 'executive power' and hisconstitutionally appointed duty to 'take care that the laws befaithfully executed,' " ante, at 689-690.


          Onecan hardly grieve for the shoddy treatment given today toHumphrey's Executor, which, after all, accorded the sameindignity (with much less justification) to Chief Justice


Page 726


Taft's opinion 10 years earlier in Myers v. UnitedStates, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160(1926)—gutting, in six quick pages devoid of textual orhistorical precedent for the novel principle it set forth, acarefully researched and reasoned 70-page opinion. It is in factcomforting to witness the reality that he who lives by the ipsedixit dies by the ipse dixit. But one must grieve forthe Constitution. Humphrey's Executor at least had thedecency formally to observe the constitutional principle that thePresident had to be the repository of all executive power,see 295 U.S., at 627-628, 55 S.Ct., at 874, which, as Myerscarefully explained, necessarily means that he must be able todischarge those who do not perform executive functions according tohis liking. As we noted in Bowsher, once an officer isappointed " 'it is only the authority that can remove him, and notthe authority that appointed him, that he must fear and, in theperformance of his functions, obey.' " 478 U.S., at 726, 106 S.Ct.,at 3188, quoting Synar v. United States, 626 F.Supp. 1374,1401 (DC 1986) (Scalia, Johnson, and Gasch, JJ.). By contrast, "ourpresent considered view" is simply that any executiveofficer's removal can be restricted, so long as the Presidentremains "able to accomplish his constitutional role." Ante,at 690. There are now no lines. If the removal of a prosecutor, thevirtual embodiment of the power to "take care that the laws befaithfully executed," can be restricted, what officer's removalcannot? This is an open invitation for Congress to experiment. Whatabout a special Assistant Secretary of State, with responsibilityfor one very narrow area of foreign policy, who would not only haveto be confirmed by the Senate but could also be removed onlypursuant to certain carefully designed restrictions? Could thispossibly render the President "[un]able to accomplish hisconstitutional role"? Or a special Assistant Secretary of Defensefor Procurement? The possibilities are endless, and the Court doesnot understand what the separation of powers, what "[a]mbition . .. counteract[ing] ambition," Federalist No. 51, p. 322 (Madison),is all about, if it does not expect Congress to try them. As far asI can discern from the Court's opinion, it is now


Page 727


open season upon the President's removal power for all executiveofficers, with not even the superficially principled restriction ofHumphrey's Executor as cover. The Court essentially says tothe President: "Trust us. We will make sure that you are able toaccomplish your constitutional role." I think the Constitutiongives the President—and the people—more protection thanthat.


          Thepurpose of the separation and equilibration of powers in general,and of the unitary Executive in particular, was not merely toassure effective government but to preserve individual freedom.Those who hold or have held offices covered by the Ethics inGovernment Act are entitled to that protection as much as the restof us, and I conclude my discussion by considering the effect ofthe Act upon the fairness of the process they receive.


          Onlysomeone who has worked in the field of law enforcement can fullyappreciate the vast power and the immense discretion that areplaced in the hands of a prosecutor with respect to the objects ofhis investigation. Justice Robert Jackson, when he was AttorneyGeneral under President Franklin Roosevelt, described it in amemorable speech to United States Attorneys, as follows:


                    "Thereis a most important reason why the prosecutor should have, asnearly as possible, a detached and impartial view of all groups inhis community. Law enforcement is not automatic. It isn't blind.One of the greatest difficulties of the position of prosecutor isthat he must pick his cases, because no prosecutor can eveninvestigate all of the cases in which he receives complaints. Ifthe Department of Justice were to make even a pretense of reachingevery probable violation of federal law, ten times its presentstaff will be inadequate. We know that no local police force canstrictly enforce the traffic laws, or it would arrest half thedriving population on


Page 728


          anygiven morning. What every prosecutor is practically required to dois to select the cases for prosecution and to select those in whichthe offense is the most flagrant, the public harm the greatest, andthe proof the most certain.


                    "Ifthe prosecutor is obliged to choose his case, it follows that hecan choose his defendants. Therein is the most dangerous power ofthe prosecutor: that he will pick people that he thinks he shouldget, rather than cases that need to be prosecuted. With the lawbooks filled with a great assortment of crimes, a prosecutor standsa fair chance of finding at least a technical violation of some acton the part of almost anyone. In such a case, it is not a questionof discovering the commission of a crime and then looking for theman who has committed it, it is a question of picking the man andthen searching the law books, or putting investigators to work, topin some offense on him. It is in this realm—in which theprosecutor picks some person whom he dislikes or desires toembarrass, or selects some group of unpopular persons and thenlooks for an offense, that the greatest danger of abuse ofprosecuting power lies. It is here that law enforcement becomespersonal, and the real crime becomes that of being unpopular withthe predominant or governing group, being attached to the wrongpolitical views, or being personally obnoxious to or in the way ofthe prosecutor himself." R. Jackson, The Federal Prosecutor,Address Delivered at the Second Annual Conference of United StatesAttorneys, April 1, 1940.


          Underour system of government, the primary check against prosecutorialabuse is a political one. The prosecutors who exercise this awesomediscretion are selected and can be removed by a President, whom thepeople have trusted enough to elect. Moreover, when crimes are notinvestigated and prosecuted fairly, nonselectively, with a rea-


Page 729


sonable sense of proportion, the President pays the cost inpolitical damage to his administration. If federal prosecutors"pick people that [they] thin[k] [they] should get, rather thancases that need to be prosecuted," if they amass many moreresources against a particular prominent individual, or against aparticular class of political protesters, or against members of aparticular political party, than the gravity of the allegedoffenses or the record of successful prosecutions seems to warrant,the unfairness will come home to roost in the Oval Office. I leaveit to the reader to recall the examples of this in recent years.That result, of course, was precisely what the Founders had in mindwhen they provided that all executive powers would be exercised bya single Chief Executive. As Hamilton put it, "[t]heingredients which constitute safety in the republican sense are adue dependence on the people, and a due responsibility." FederalistNo. 70, p. 424. The President is directly dependent on the people,and since there is only one President, he isresponsible. The people know whom to blame, whereas "one of theweightiest objections to a plurality in the executive . . . is thatit tends to conceal faults and destroy responsibility." Id.,at 427.


          Thatis the system of justice the rest of us are entitled to, but whatof that select class consisting of present or former high-levelExecutive Branch officials? If an allegation is made against themof any violation of any federal criminal law (except Class B or Cmisdemeanors or infractions) the Attorney General must give it hisattention. That in itself is not objectionable. But if, after a90-day investigation without the benefit of normal investigatorytools, the Attorney General is unable to say that there are "noreasonable grounds to believe" that further investigation iswarranted, a process is set in motion that is not in thefull control of persons "dependent on the people," and whose flawscannot be blamed on the President. An independent counsel isselected, and the scope of his or her authority prescribed, bya


Page 730


panel of judges. What if they are politically partisan, asjudges have been known to be, and select a prosecutor antagonisticto the administration, or even to the particular individual who hasbeen selected for this special treatment? There is no remedy forthat, not even a political one. Judges, after all, have lifetenure, and appointing a surefire enthusiastic prosecutor couldhardly be considered an impeachable offense. So if there isanything wrong with the selection, there is effectively no one toblame. The independent counsel thus selected proceeds to assemble astaff. As I observed earlier, in the nature of things this has tobe done by finding lawyers who are willing to lay aside theircurrent careers for an indeterminate amount of time, to take on ajob that has no prospect of permanence and little prospect forpromotion. One thing is certain, however: it involves investigatingand perhaps prosecuting a particular individual. Can one imagine aless equitable manner of fulfilling the executive responsibility toinvestigate and prosecute? What would be the reaction if, in anarea not covered by this statute, the Justice Department posted apublic notice inviting applicants to assist in an investigation andpossible prosecution of a certain prominent person? Does this notinvite what Justice Jackson described as "picking the man and thensearching the law books, or putting investigators to work, to pinsome offense on him"? To be sure, the investigation must relate tothe area of criminal offense specified by the life-tenured judges.But that has often been (and nothing prevents it from being) verybroad—and should the independent counsel or his or her staffcome up with something beyond that scope, nothing prevents him orher from asking the judges to expand his or her authority or, ifthat does not work, referring it to the Attorney General, whereuponthe whole process would recommence and, if there was "reasonablebasis to believe" that further investigation was warranted, thatnew offense would be referred to the Special Division, which wouldin all likelihood assign it to the same


Page 731


independent counsel. It seems to me not conducive to fairness.But even if it were entirely evident that unfairness was in factthe result—the judges hostile to the administration, theindependent counsel an old foe of the President, the staff refugeesfrom the recently defeated administration—there would beno one accountable to the public to whom the blame could beassigned.


          I donot mean to suggest that anything of this sort (other than theinevitable self-selection of the prosecutory staff) occurred in thepresent case. I know and have the highest regard for the judges onthe Special Division, and the independent counsel herself is awoman of accomplishment, impartiality, and integrity. But thefairness of a process must be adjudged on the basis of what itpermits to happen, not what it produced in a particular case. It istrue, of course, that a similar list of horribles could beattributed to an ordinary Justice Department prosecution—avindictive prosecutor, an antagonistic staff, etc. But thedifference is the difference that the Founders envisioned when theyestablished a single Chief Executive accountable to the people: theblame can be assigned to someone who can be punished.


          Theabove described possibilities of irresponsible conduct must, as Isay, be considered in judging the constitutional acceptability ofthis process. But they will rarely occur, and in the average casethe threat to fairness is quite different. As described in thebrief filed on behalf of three ex-Attorneys General from each ofthe last three administrations:


          "Theproblem is less spectacular but much more worrisome. It is that theinstitutional environment of the IndependentCounsel—specifically, her isolation from the Executive Branchand the internal checks and balances it supplies—is designedto heighten, not to check, all of the occupational hazards of thededicated prosecutor; the danger of too narrow a focus, of the lossof perspective, of preoccupation with the pursuit of one allegedsuspect to the exclusion of other interests." Brief for Edward


Page 732


          H.Levi, Griffin B. Bell, and William French Smith as AmiciCuriae 11.


          Itis, in other words, an additional advantage of the unitaryExecutive that it can achieve a more uniform application of thelaw. Perhaps that is not always achieved, but the mechanism toachieve it is there. The mini-Executive that is the independentcounsel, however, operating in an area where so little is law andso much is discretion, is intentionally cut off from the unifyinginfluence of the Justice Department, and from the perspective thatmultiple responsibilities provide. What would normally be regardedas a technical violation (there are no rules defining such things),may in his or her small world assume the proportions of anindictable offense. What would normally be regarded as aninvestigation that has reached the level of pursuing such picayunematters that it should be concluded, may to him or her be aninvestigation that ought to go on for another year. How frighteningit must be to have your own independent counsel and staffappointed, with nothing else to do but to investigate you untilinvestigation is no longer worthwhile—with whether it isworthwhile not depending upon what such judgments usually hinge on,competing responsibilities. And to have that counsel and staffdecide, with no basis for comparison, whether what you have done isbad enough, willful enough, and provable enough, to warrant anindictment. How admirable the constitutional system that providesthe means to avoid such a distortion. And how unfortunate thejudicial decision that has permitted it.

* * *

          Thenotion that every violation of law should be prosecuted,including—indeed, especially—every violation bythose in high places, is an attractive one, and it would be riskyto argue in an election campaign that that is not an absolutelyoverriding value. Fiat justitia, ruat coelum. Let justice bedone, though the heavens may fall. The reality is, however, that itis not an absolutely overriding value, and it


Page 733


was with the hope that we would be able to acknowledge and applysuch realities that the Constitution spared us, by life tenure, thenecessity of election campaigns. I cannot imagine that there arenot many thoughtful men and women in Congress who realize that thebenefits of this legislation are far outweighed by its harmfuleffect upon our system of government, and even upon the nature ofjustice received by those men and women who agree to serve in theExecutive Branch. But it is difficult to vote not to enact, andeven more difficult to vote to repeal, a statute called,appropriately enough, the Ethics in Government Act. If Congress iscontrolled by the party other than the one to which the Presidentbelongs, it has little incentive to repeal it; if it is controlledby the same party, it dare not. By its shortsighted action today, Ifear the Court has permanently encumbered the Republic with aninstitution that will do it great harm.


          Worsethan what it has done, however, is the manner in which it has doneit. A government of laws means a government of rules. Today'sdecision on the basic issue of fragmentation of executive power isungoverned by rule, and hence ungoverned by law. It extends intothe very heart of our most significant constitutional function the"totality of the circumstances" mode of analysis that this Courthas in recent years become fond of. Taking all things into account,we conclude that the power taken away from the President here isnot really too much. The next time executive power isassigned to someone other than the President we may conclude,taking all things into account, that it is too much. Thatopinion, like this one, will not be confined by any rule. We willdescribe, as we have today (though I hope more accurately) theeffects of the provision in question, and will authoritativelyannounce: "The President's need to control the exercise of the[subject officer's] discretion is so central to thefunctioning of the Executive Branch as to require completecontrol." This is not analysis; it is ad hoc judgment. And it failsto explain why it is not true that—as the text of


Page 734


the Constitution seems to require, as the Founders seemed toexpect, and as our past cases have uniformly assumed—allpurely executive power must be under the control of thePresident.


          Thead hoc approach to constitutional adjudication has real attraction,even apart from its work-saving potential. It is guaranteed toproduce a result, in every case, that will make a majority of theCourt happy with the law. The law is, by definition, precisely whatthe majority thinks, taking all things into account, itought to be. I prefer to rely upon the judgment of the wisemen who constructed our system, and of the people who approved it,and of two centuries of history that have shown it to be sound.Like it or not, that judgment says, quite plainly, that "[t]heexecutive Power shall be vested in a President of the UnitedStates."


[1] The Act was first enacted by Congress in1978, Pub.L. 95-521, 92 Stat. 1867, and has been twice reenacted,with amendments. See Pub.L. 97-409, 96 Stat. 2039; Pub.L. 100-191,101 Stat. 1293. The current version of the statute states that,with certain exceptions, it shall "cease to be effective five yearsafter the date of the enactment of the Independent CounselReauthorization Act of 1987." 28 U.S.C. § 599 (1982 ed., Supp.V).


[2] Under 28 U.S.C. § 591(a) (1982 ed., Supp. V),the statute applies to violations of "any Federal criminal lawother than a violation classified as a Class B or C misdemeanor oran infraction." See also § 591(c) ("any Federal criminal lawother than a violation classified as a Class B or C misdemeanor oran infraction"). Section 591(b) sets forth the individuals who maybe the target of an investigation by the Attorney General,including the President and Vice President, Cabinet levelofficials, certain high-ranking officials in the Executive Officeof the President and the Justice Department, the Director andDeputy Director of Central Intelligence, the Commissioner ofInternal Revenue, and certain officials involved in the President'snational political campaign. Pursuant to § 591(c), theAttorney General may also conduct a preliminary investigation ofpersons not named in § 591(b) if an investigation by theAttorney General or other Department of Justice official "mayresult in a personal, financial, or political conflict ofinterest."


[3] The Special Division is a division of the UnitedStates Court of Appeals for the District of Columbia Circuit. 28U.S.C. § 49 (1982 ed., Supp. V). The court consists of threecircuit court judges or justices appointed by the Chief Justice ofthe United States. One of the judges must be a judge of the UnitedStates Court of Appeals for the District of Columbia Circuit, andno two of the judges may be named to the Special Division from aparticular court. The judges are appointed for 2-year terms, withany vacancy being filled only for the remainder of the 2-yearperiod. Ibid.


[4] The Act also requires the Attorney General toapply for the appointment of an independent counsel if 90 dayselapse from the receipt of the information triggering thepreliminary investigation without a determination by the AttorneyGeneral that there are no reasonable grounds to believe thatfurther investigation or prosecution is warranted. §592(c)(1). Pursuant to § 592(f), the Attorney General'sdecision to apply to the Special Division for the appointment of anindependent counsel is not reviewable "in any court."


[5] Upon request of the Attorney General, in lieu ofappointing an independent counsel the Special Division may "expandthe prosecutorial jurisdiction of an independent counsel." §593(c). Section 593 also authorizes the Special Division to fillvacancies arising because of the death, resignation, or removal ofan independent counsel. § 593(e). The court, in addition, isempowered to grant limited extensions of time for the AttorneyGeneral's preliminary investigation, § 592(a)(3), and to awardattorney's fees to unindicted individuals who were the subject ofan investigation by an independent counsel, § 593(f) (asamended by Pub.L. 101-191, 101 Stat. 1293).


[6] The Attorney General, however, retains "directionor control as to those matters that specifically require theAttorney General's personal action under section 2516 of title 18."§ 594(a).


[7] The 1987 amendments to the Act specify that theDepartment of Justice "shall pay all costs relating to theestablishment and operation of any office of independent counsel."The Attorney General must report to Congress regarding the amountexpended on investigations and prosecutions by independent counsel.§ 594(d)(2). In addition, the independent counsel must alsofile a report of major expenses with the Special Division every sixmonths. § 594(h)(1)(A).


[8] Under the Act as originally enacted, anindependent counsel who was removed could obtain judicial review ofthe Attorney General's decision in a civil action commenced beforethe Special Division. If the removal was "based on error of law orfact," the court could order "reinstatement or other appropriaterelief." 28 U.S.C. § 596(a)(3).


[9] Sections 596(b)(1)(B) and 596(b)(2) also requirethat the independent counsel have filed a final report with theSpecial Division in compliance with § 594(h)(1)(B).


[10] Comprehensive Environmental Response,Compensation, and Liability Act of 1980, Pub.L. 96-510, 94 Stat.2767, 42 U.S.C. § 9601 et seq.


[11] The Attorney General concluded that appelleesSchmults and Dinkins lacked the requisite "criminal intent" toobstruct the Committee's investigation. See Report of AttorneyGeneral Pursuant to 28 U.S.C. § 592(c)(1) RegardingAllegations Against Department of Justice Officials in UnitedStates House Judiciary Committee Report 22, 45 (Apr. 10, 1986),filed in No. 86-1 (CADC) (Attorney General Report).


[12] It is clear that appellant is an "officer" of theUnited States, not an "employee." See Buckley, 424 U.S., at126, and n. 162, 96 S.Ct., at 685, and n. 162.


[13] Indeed, in light of judicial experience withprosecutors in criminal cases, it could be said that courts areespecially well qualified to appoint prosecutors. This is not acase in which judges are given power to appoint an officer in anarea in which they have no special knowledge or expertise, as in,for example, a statute authorizing the courts to appoint officialsin the Department of Agriculture or the Federal Energy RegulatoryCommission.


[14] We note also the longstanding judicial practiceof appointing defense attorneys for individuals who are unable toafford representation, see 18 U.S.C. § 3006A(b) (1982 ed.,Supp. V), notwithstanding the possibility that the appointedattorney may appear in court before the judge who appointedhim.


[15] In several cases, the Court has indicated thatArticle III "judicial Power" does not extend to duties that aremore properly performed by the Executive Branch. Hayburn'sCase, for example, involved a statute empowering federal andstate courts to set pensions for disabled veterans of theRevolutionary War. See Act of Mar. 23, 1792, ch. 11, 1 Stat. 243.The Act "undertook to devolve upon the Circuit Court of the UnitedStates the duty of examining proofs, of determining what amount ofthe monthly pay would be equivalent to the disability ascertained,and to certify the same to the Secretary of War." Muskrat,219 U.S., at 352, 31 S.Ct., at 252. The court's decision was to bereported to the Secretary of War, who had the discretion to eitheradopt or reject the court's findings. Ibid. This Court didnot reach the constitutional issue in Hayburn's Case, butthe opinions of several Circuit Courts were reported in the marginsof the Court's decision in that case, and have since been taken toreflect a proper understanding of the role of the Judiciary underthe Constitution. See, e.g., Ferreira, 13 How., at50-51.


In Ferreira, Congress passed a statute authorizing afederal court in Florida to hear and adjudicate claims for lossesfor which the United States was to be held responsible under the1819 treaty with Spain that ceded Florida to the United States.Id., at 45. As in Hayburn's Case, the results of thecourt proceeding were to be reported to an executive official, theSecretary of the Treasury, who would make the final determinationwhether to pay the claims. 13 How., at 47. The Court recognizedthat the powers conferred on the judge by the statute were"judicial in their nature," in that they involved "judgment anddiscretion." Id., at 48. Nonetheless, they were not"judicial . . . in the sense in which judicial power is granted bythe Constitution to the courts of the United States." Ibid.Because the District Court's decision in Ferreira was not anexercise of Article III judicial power, the Court ruled that it hadno jurisdiction to hear the appeal. Id., at 51-52.


[16] We do not think that judicial exercise of thepower to appoint, per se, is in any way inconsistent as afunctional matter with the courts' exercise of their Article IIIpowers. We note that courts have long participated in theappointment of court officials such as United States commissionersor magistrates, see Go-Bart Importing Co. v. United States,282 U.S. 344, 51 S.Ct. 153, 75 L.Ed.2d 374 (1931); 28 U.S.C. §631(a), without disruption of normal judicial functions. Andcertainly the Court in Ex parte Hennen, 13 Pet. 230, 10L.Ed. 138 (1839), deemed it entirely appropriate that a courtshould have the authority to appoint its own clerk.


[17] Our conclusion that the power to define thecounsel's jurisdiction is incidental to the power to appoint alsoapplies to the Division's authority to expand the jurisdiction ofthe counsel upon request of the Attorney General under §593(c)(2).


[18]> In our view, this provision does not empower thecourt to expand the original scope of the counsel's jurisdiction;that may be done only upon request of the Attorney General pursuantto § 593(c)(2). At most, § 594(e) authorizes the courtsimply to refer matters that are "relate[d] to the independentcounsel's prosecutorial jurisdiction" as already defined.


[19] The Special Division must determine whether theAttorney General has shown "good cause" for his or her request foran extension of the time limit on his or her preliminaryinvestigation, § 592(a)(3); the court must decide whether andto what extent it should release to the public the counsel's finalreport or the Attorney General's removal report, §§596(a)(2), (b)(2); and the court may consider the propriety of arequest for attorney's fees, § 593(f).


[20] By way of comparison, we also note that federalcourts and judges have long performed a variety of functions that,like the functions involved here, do not necessarily or directlyinvolve adversarial proceedings within a trial or appellate court.For example, federal courts have traditionally supervised grandjuries and assisted in their "investigative function" by, ifnecessary, compelling the testimony of witnesses. See Brown v.United States, 359 U.S. 41, 49, 79 S.Ct. 539, 545-546, 3L.Ed.2d 609 (1959). Federal courts also participate in the issuanceof search warrants, see Fed. Rule Crim. Proc. 41, and reviewapplications for wiretaps, see 18 U.S.C. §§ 2516, 2518(1982 ed. and Supp. IV), both of which may require a court toconsider the nature and scope of criminal investigations on thebasis of evidence or affidavits submitted in an ex parteproceeding. In Young v. United States ex rel. Vuitton et FilsS.A., 481 U.S. 787, 793-802, 107 S.Ct. 2124, 2130-2135, 95L.Ed.2d 740 (1987), we recognized that federal courts possessinherent authority to initiate contempt proceedings fordisobedience to their orders, and this authority necessarilyincludes the ability to appoint a private attorney to prosecute thecontempt.


[21] As the dissenting opinion noted below, thetermination provision was "intended to serve only as a measure oflast resort." See In re Sealed Case, 267 U.S.App.D.C. 178,224, n. 13, 838 F.2d 476, 522, n. 13 (1988). The Senate Report onthe provision states:


"This paragraph provides for the unlikely situation where aspecial prosecutor may try to remain as special prosecutor afterhis responsibilities under this chapter are completed. . . . Thedrastic remedy of terminating the office of special prosecutorwithout the consent of the special prosecutor should obviously beexecuted with caution." S.Rep. No. 95-170, p. 75 (1977).


[22] We see no impropriety in the Special Division'sactions with regard to its response to appellant's request forreferral of additional matters in this case. See In reOlson, 260 U.S.App.D.C. 168, 818 F.2d 34 (Special Division1987). The Division has statutory authority to respond toappellant's request pursuant to § 594(e), and it was onlyproper that it first consider whether it could exercise itsstatutory authority without running afoul of the Constitution. Asto the Division's alleged "reinterpretation" of its original grantof jurisdiction, the power to "reinterpret" or clarify the originalgrant may be seen as incidental to the court's referral power.After all, in order to decide whether to refer a matter to thecounsel, the court must be able to determine whether the matterfalls within the scope of the original grant. See n. 18,supra. We express no view on the merits of the Division'sinterpretation of the original grant or of its ruling in regard toits power to refer matters that the Attorney General has previouslyrefused to refer.


[23] As noted, an independent counsel may also beremoved through impeachment and conviction. In addition, theAttorney General may remove a counsel for "physical disability,mental incapacity, or any other condition that substantiallyimpairs the performance" of his or her duties. §596(a)(1).


[24] The Court expressly disapproved of any statementsin Myers that "are out of harmony" with the views expressedin Humphrey's Executor. 295 U.S., at 626, 55 S.Ct., at 873.We recognized that the only issue actually decided in Myerswas that "the President had power to remove a postmaster of thefirst class, without the advice and consent of the Senate asrequired by act of Congress." 295 U.S., at 626, 55 S.Ct., at873.


[25] See id., at 627-628, 55 S.Ct., at 873-874.We described the FTC as "an administrative body created by Congressto carry into effect legislative policies embodied in the statutein accordance with the legislative standard therein prescribed, andto perform other specified duties as a legislative or as a judicialaid." Such an agency was not "an arm or an eye of the executive,"and the commissioners were intended to perform their duties"without executive leave and . . . free from executive control."Id., at 628, 55 S.Ct., at 874. As we put it at the time, thepowers of the FTC were not "purely" executive, but were"quasi-legislative or quasi-judicial." Ibid.


[26] This same argument was raised by the SolicitorGeneral in Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181,92 L.Ed.2d 583 (1986), although as Justice WHITE noted in dissentin that case, the argument was clearly not accepted by the Court atthat time. Id., at 738-739, and nn. 1-3, 106 S.Ct., at3206-3207, and nn. 1-3.


[27] Indeed, this Court has never held that theConstitution prevents Congress from imposing limitations on thePresident's power to remove all executive officials simplybecause they wield "executive" power. Myers itself expresslydistinguished cases in which Congress had chosen to vest theappointment of "inferior" executive officials in the head of adepartment. See 272 U.S., at 161-163, 164, 47 S.Ct., at 40-41, 41.In such a situation, we saw no specific constitutional impedimentto congressionally imposed restrictions on the President's removalpowers. See also United States v. Perkins, 116 U.S. 483,485, 6 S.Ct. 449, 450, 29 L.Ed. 700 (1886) (" 'The constitutionalauthority in Congress to thus vest the appointment [of inferiorofficers in the heads of departments] implies authority to limit,restrict, and regulate the removal by such laws as Congress mayenact in relation to the officers so appointed' ") (quoting theCourt of Claims' decision in the case).


[28] The difficulty of defining such categories of"executive" or "quasi-legislative" officials is illustrated by acomparison of our decisions in cases such as Humphrey'sExecutor, Buckley v. Valeo, 424 U.S. 1, 140-141, 96 S.Ct. 612,692-693, 46 L.Ed.2d 659 (1976), and Bowsher, supra, 478U.S., at 732-734, 106 S.Ct., at 3191-3192. In Buckley, weindicated that the functions of the Federal Election Commission are"administrative," and "more legislative and judicial in nature,"and are "of kinds usually performed by independent regulatoryagencies or by some department in the Executive Branch under thedirection of an Act of Congress." 424 U.S., at 140-141, 96 S.Ct.,at 692-693. In Bowsher, we found that the functions of theComptroller General were "executive" in nature, in that he wasrequired to "exercise judgment concerning facts that affect theapplication of the Act," and he must "interpret the provisions ofthe Act to determine precisely what budgetary calculations arerequired." 478 U.S., at 733, 106 S.Ct., at 3191. Compare this withthe description of the FTC's powers in Humphrey's Executor,which we stated "occupie[d] no place in the executive department":"The [FTC] is an administrative body created by Congress to carryinto effect legislative policies embodied in the statute inaccordance with the legislative standard therein prescribed, and toperform other specified duties as a legislative or as a judicialaid." 295 U.S., at 628, 55 S.Ct., at 874. As Justice WHITE noted inhis dissent in Bowsher, it is hard to dispute that thepowers of the FTC at the time of Humphrey's Executor wouldat the present time be considered "executive," at least to somedegree. See 478 U.S., at 761, n. 3, 106 S.Ct., at 3206, n. 3.


[29] The dissent says that the language of Article IIvesting the executive power of the United States in the Presidentrequires that every officer of the United States exercising anypart of that power must serve at the pleasure of the President andbe removable by him at will. Post, at 705. This rigiddemarcation—a demarcation incapable of being altered by lawin the slightest degree, and applicable to tens of thousands ofholders of offices neither known nor foreseen by theFramers—depends upon an extrapolation from generalconstitutional language which we think is more than the text willbear. It is also contrary to our holding in United States v.Perkins, supra, decided more than a century ago.


[30] The terms also may be used to describe thecircumstances in which Congress might be more inclined to find thata degree of independence from the Executive, such as that affordedby a "good cause" removal standard, is necessary to the properfunctioning of the agency or official. It is not difficult toimagine situations in which Congress might desire that an officialperforming "quasi-judicial" functions, for example, would be freeof executive or political control.


[31] We note by way of comparison that various federalagencies whose officers are covered by "good cause" removalrestrictions exercise civil enforcement powers that are analogousto the prosecutorial powers wielded by an independent counsel. See,e.g., 15 U.S.C. § 45(m) (giving the FTC the authorityto bring civil actions to recover civil penalties for theviolations of rules respecting unfair competition); 15 U.S.C.§§ 2061, 2071, 2076(b)(7)(A) (giving the Consumer ProductSafety Commission the authority to obtain injunctions and apply forseizure of hazardous products).


[32] Indeed, during the hearings on the 1982amendments to the Act, a Justice Department official testified thatthe "good cause" standard contained in the amendments "would makethe special prosecutor no more independent than officers of themany so-called independent agencies in the executive branch."Ethics in Government Act Amendments of 1982, Hearing before theSubcommittee on Oversight of Government Management of the SenateCommittee on Governmental Affairs, 97th Cong., 2d Sess., 7 (1981)(Associate Attorney General Giuliani).


[33] We see no constitutional problem in the fact thatthe Act provides for judicial review of the removal decision.§ 596(a)(3). The purpose of such review is to ensure that anindependent counsel is removed only in accordance with the will ofCongress as expressed in the Act. The possibility of judicialreview does not inject the Judicial Branch into the removaldecision, nor does it, by itself, put any additional burden on thePresident's exercise of executive authority. Indeed, we note thatthe legislative history of the most recent amendment to the Actindicates that the scope of review to be exercised by the courtsunder § 596(a)(3) is to be "the standards established byexisting case law on the removal of [other] officials" who aresubject to "good cause" removal. H.R.Conf.Rep. No. 100-452, p. 37(1987).


[34] With these provisions, the degree of controlexercised by the Executive Branch over an independent counsel isclearly diminished in relation to that exercised over otherprosecutors, such as the United States Attorneys, who are appointedby the President and subject to termination at will.


[1] I agree with the Court on this point, but notbecause of the section of the statute that it cites, § 592(f).What that provides is that "[t]he Attorney General's determination. . . to apply to the division of the court for the appointmentof an independent counsel shall not be reviewable in anycourt." Quite obviously, the determination to apply is not thesame as the determination not to apply. In other contexts, we havesternly avoided "construing" a statute to mean what it plainly doesnot say, merely in order to avoid constitutional problems. SeeCommodity Futures Trading Comm'n v. Schor, 478 U.S. 833,841, 106 S.Ct. 3245, 3251, 92 L.Ed.2d 675 (1986). In my view,however, the Attorney General's decision not to refer would in anyevent be nonreviewable as the exercise of prosecutorial discretion.See Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84L.Ed.2d 714 (1985).


[2] The Court omits the further provision that theindependent counsel exercises within her sphere the "full power" of"the Attorney General, [with one minor exception relating towiretap authorizations] and any other officer or employee of theDepartment of Justice[.]" § 594(a). This is, of course, quitedifficult to square with the Court's assertion that appellant is "'inferior' in rank and authority" to the Attorney General.Ante, at 671.


[3] The independent counsel's specifically enumeratedpowers include the following:


"(1) conducting proceedings before grand juries and otherinvestigations;


"(2) participating in court proceedings and engaging in anylitigation, including civil and criminal matters, that [the]independent counsel deems necessary;


"(3) appealing any decision of a court in any case or proceedingin which [the] independent counsel participates in an officialcapacity;


"(4) reviewing all documentary evidence available from anysource;


"(5) determining whether to contest the assertion of anytestimonial privilege;


"(6) receiving appropriate national security clearances and, ifnecessary contesting in court . . . any claim of privilege orattempt to withhold evidence on grounds of national security;


"(7) making applications to any Federal court for a grant ofimmunity to any witness . . . or for warrants, subpoenas, or othercourt orders, and for purposes of sections 6003, 6004, and 6005 oftitle 18, exercising the authority vested in a United Statesattorney or the Attorney General;


"(8) inspecting, obtaining, or using the original or a copy ofany tax return . . .;


"(9) initiating and conducting prosecutions in any court ofcompetent jurisdiction, framing and signing indictments, filinginformations, and handling all aspects of any case filed in thename of the United States; and


"(10) consulting with the United States Attorney for thedistrict in which the violation was alleged to have occurred."§§ 594(a)(1)-(10).


In addition, the statute empowers the independent counsel tohire a staff of a size as large as she "deems necessary," §594(c), and to enlist and receive "where necessary to perform [her]duties" the assistance, personnel and resources of the Departmentof Justice, § 594(d).


[4] The Court misunderstands my opinion to say that"every officer of the United States exercising any part of [theexecutive] power must serve at the pleasure of the President and beremovable by him at will." Ante, at 690, n. 29. Of course,as my discussion here demonstrates, that has never been the law andI do not assert otherwise. What I do assert—and whatthe Constitution seems plainly to prescribe—is that thePresident must have control over all exercises of the executivepower. See supra, at 705. That requires that he have plenarypower to remove principal officers such as the independent counsel,but it does not require that he have plenary power to removeinferior officers. Since the latter are, as I have described,subordinate to, i.e., subject to the supervision of,principal officers who (being removable at will) have thePresident's complete confidence, it is enough—at least ifthey have been appointed by the President or by a principalofficer—that they be removable for cause, which wouldinclude, of course, the failure to accept supervision. Thus,Perkins is in no way inconsistent with my views.


Annotated Case Information

March 31, 2017

"Alexia Morrison, Independent Counsel v. Theodore B. Olson"

Alexia Morrison, Independent Counsel v. Theodore B. Olson

Author Stats

Griswold Reading Groups

Harvard Law School

Leitura Garamond Futura Verdana Proxima Nova Dagny Web
small medium large extra-large