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United States Court of Appeals, Supreme Court Judges, Ambassadors, Other Public District of Columbia Circuit 838 F.2d 476 Page 1 56 USLW 2420 (Cite as: 838 F.2d 476, 267 U.S.App.D.C. 178) and consent of Senate to appointment of not only United States Court of Appeals, Supreme Court judges, ambassadors, other public District of Columbia Circuit. ministers, and consuls, but also department heads and federal judges. U.S.C.A. Const. Art. 2, § 2, el. 2. In re SEALED CASE (Three Cases). 2I~ United States ~:;~35 Nos. 87-5261, 87-5264 and 87-5265. 393k35 Most Cited Cases Argued Sept. 16, 1987. Independent counsel appointed under provisions of Decided Jan. 22, 1988. Ethics in Government Act is a "principal officer," not As Amended Feb. 5, 1988. an "inferior officer," and must be appointed with Probable Jurisdiction Noted Feb. 22, 1988. advice and consent of Senate under Constitution’s appointments clause; accordingly, appointment by Act’s "Special Court" is constitutionally invalid. See 108 S.Ct. 1010. U.S.C.A. Const. Art. 2, § 2, cl. 2; 28 U.S.C.A. § § 49, 591- 598. Three former government officials brought suit challenging authority of independent counsel [31 Constitutional Law ~::z~58 appointed under provisions of Ethics in Government 92k58 Most Cited Cases Act to issue subpoenas compelling their testimony before grand jury. The United States District Court I31 Constitutional Law ~=::>72 for the District of Columbia, 665 F.Supp. 56, Aubrey 92k72 Most Cited Cases E. Robinson, Jr., Chief Judge, held the former officials in contempt for failing to answer the Executive Branch has exclusive authority and subpoenas, and they appealed. The Court of absolute discretion to decide whether to prosecute Appeals, Silberman, Circuit Judge, held that: (1) criminal case. U.S.C.A. Const. Art. 2, § 3. independent counsel appointed under Ethics in Government Act is a "principal official," not an "inferior official," and must be appointed with advice [41 United States ~:::~35 and consent of Senate under Constitution’s 393k35 Most Cited Cases appointments clause; (2) even if independent counsel is an "inferior official," Act would violate President’s Even if independent counsel appointed under constitutional duty to ensure that the laws are provisions of Ethics and Government Act is an faithfully executed; (3) the Act, viewed as a whole, "inferior officer," and not a "principal officer" who so deeply invades President’s executive prerogatives must be appointed with advice and consent of Senate and responsibilities and so jeopardizes individual under Constitution’s appointments clause, Act would liberty as to be unconstitutional; and (4) Act violate President’s duty to "take Care that the Laws unconstitutionally invests the "Special Court," an be faithfully executed" by providing for independent Article III court, with non- Article III powers. counsel’s appointment by "Special Court" rather than the President. 28 U.S.C.A. § § 49, 591- 598; Reversed. U.S.C.A. Const. Art. 2, § 3. Ruth Bader Ginsburg, Circuit Judge, filed a Constitutional Law ~::z~50 dissenting opinion. 92k50 Most Cited Cases Constitution’s appointments clause does not allow West Headnotes officer of one branch of federal Government to appoint an officer of another branch who is assigned ~ Judges ~:=~3 duty central to constitutional role of that other 227k3 Most Cited Cases branch. U.S.C.A. Const. Art. 2, § 2, cl. 2. I[L[ United States ~;==~35 I61 United States 393k35 Most Cited Cases 393k35 Most Cited Cases Constitution’s appointments clause requires advice Even if independent counsel appointed under Ethics Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 838 F.2d 476 Page 26 56 USLW 2420 (Cite as: 838 F.2d 476, 267 U.S.App.D.C. 178) FN43. Although it does not appear that most implicated, or, on a more mundane, but nevertheless decisions of the Special Court are directly important level, details about staffing and budgetary reviewable by the Supreme Court or any matters. other court, we assume that because section 596(a)(3) authorizes the independent The independent counsel is free to ignore counsel to bring a civil action, an appeal to Department of Justice policy if it is "not possible" to the Supreme Court would lie. follow it, and that judgment is for her alone to make. 28 U.S.C. § 594(~). The consequence of this scheme, (described in more detailin Part IV), is that This scheme is analytically indistinguishable from targets of an independent counsel may be subjected one whereby the Attorney General could remove the to investigations and prosecutions governed by rules independent counsel only by petitioning the Special different from those that apply to the investigation of Court for a termination order which the Special Court any other citizen and therefore it strikes at the very could grant or not following its own independent heart of the unitary executive doctrine, which has as a investigation of the facts and the law. The only primary purpose the "unitary and uniform difference between such a hypothetical statute and administration of the laws." MFers, 272 U.S. at 135, the Act is the timing of the Special Court’s "review," 47 S.Ct. at31. but the Special Court’s power to appoint an interim independent counsel while it reviews a dismissal As we further discuss in Part V, important decisions renders the matter of timing inconsequential. See 28 about the scope of the investigation and the very U.S.C. § 593. Hence, we think it likely that any identity of the targets are made not by the Attorney order by the Attomey General to an independent General, but by the Special Court. The absence of counsel, even if backed by a threat of removal, *503 Executive Branch supervisory authority is perhaps **205 would be ineffectual, unless the independent most troubling when an investigation veers toward counsel believed the Special Court would itself agree matters affecting international relations and the with the order. The result of this "double key" independent counsel adopts positions at odds with the system is therefore that the Attorney General is remainder of the Executive Branch. For example, in powerless to remove the independent counsel unless another investigation under the Ethics in Government he can win the consent of the Special Court. We Act that has previously been before this court, the have then almost a precise analogy to Myers, where, independent counsel attempted to subpoena the under the statute declared unconstitutional, the Canadian Ambassador in the face of strenuous President could not remove the postmaster without opposition by the Department of State on this delicate the concurrence of the Senate. diplomatic question. See United States v. Deaver, No. 87-096 (D.D.C. June 22, 1987) [Available on WESTLAW, 1987 WL 13365]. And in oral argument before this court regarding still another The "good cause" limitation on removal, coupled independent counsel investigation, we were advised with the Act’s extraordinary judicial review that in the event of a dispute between the independent provisions and the power of the Special Court to counsel and the President over foreign policy and its appoint an interim independent counsel and to implications for a prosecution, the independent reinstate a fired independent counsel compromise the counsel would ’in principle’ prevail over the President’s ability to oversee the execution of the law. President. Not content with eliminating the President’s implicit power to direct or influence the independent counsel, In sum, Congress has created an Executive Branch Congress went even further to render the President office to perform a core presidential function and as impotent to affect the independent counsel’s behavior. far as we can determine precluded the President from From the moment an independent counsel is exercising any influence over the performance of that appointed, the Act, which guarantees the independent office even when its performance might interfere counsel "independent authority" to carry out her with a range of other Executive Branch duties, 28 U.S.C. § 594(a), ensures that the Attorney responsibilities, including those national security General cannot influence any aspect of her duties directly and solemnly entrusted to the performance, including the scope and duration of the President for the protection of all Americans. investigation, the standards to be applied in making a decision to prosecute or not, the direction of the Co investigation when competing executive concerns are Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 838 F.2d 476 Page 29 56 USLW 2420 (Cite as: 838 F.2d 476, 267 U.S.App.D.C. 178) see how such an eventuality can, no matter what the President to alter the balance of power between structural techniques are employed, be other than a the Presidency on the one hand and Congress and the national nightmare. Judiciary on the other, Congress is entitled to respond. The dissent does not explain in what The Framers were not oblivious to the concerns that manner these abuses "threatened the balance among gave rise to this legislation. By providing Congress the three branches of government," Dissent at 527, with the impeachment power, and declining to extend but, in any event, we would have thought the the President’s pardon power to cases of denouement of the Watergate affair hardly suggests impeachment, the Constitution grants to Congress the the triumph of the Presidency over the other two power, if needed because of criminal behavior, to branches. Furthermore, to say, as does the dissent, discipline the President and all of his appointees. that the Act is constitutional since "no man can be a The impeachment clause and the limitation on the prosecutor or judge in his own case" and the Act President’s pardon power not only demonstrate that merely "maintain[s] the executive’s proper-- and the Framers did not ignore the problem of properly circumscribed--constitutional role," id.
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