DOCSLIB.ORG

An Original Model of the Independent Counsel Statute

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
An Original Model of the Independent Counsel Statute Michigan Law Review Volume 97 Issue 3 1998 An Original Model of the Independent Counsel Statute Ken Gormley Duquesne University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Legal History Commons, Legislation Commons, President/ Executive Department Commons, and the Supreme Court of the United States Commons Recommended Citation Ken Gormley, An Original Model of the Independent Counsel Statute, 97 MICH. L. REV. 601 (1998). Available at: https://repository.law.umich.edu/mlr/vol97/iss3/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. AN ORIGINAL MODEL OF THE INDEPENDENT COUNSEL STATUTE Ken Gormley * TABLE OF CONTENTS INTRODUCTION • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 602 I. HISTORY OF THE INDEPENDENT COUNSEL STATUTE • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . • • • • . • • • • • • 608 A. An Urgent Push fo r Legislation . .. .. .. .. 609 B. Th e Constitutional Quandaries . .. .. .. .. 613 1. Th e App ointments Clause . .. .. .. .. 613 2. Th e Removal Controversy .. ................ 614 3. Th e Separation of Powers Bugaboo . .. 615 C. A New Start: Permanent Sp ecial Prosecutors and Other Prop osals .. .. .. .. .. .. .. .. .. .. .. 617 D. Legislation Is Born: S. 555 .. .. .. .. .. .. .. .. .. 624 E. Th e Lessons of Legislative History . .. .. .. 626 II. THE FIRST TWENTY YEARS: ESTABLISHING THE LAW'S CONSTITUTIONALITY • . • • • • . • • • . • • • • . • • • • . • • • 633 III. REFORMING THE INDEPENDENT COUNSEL LAW • • . • 639 A. Refo rm the Method and Frequency of App ointing In dependent <;ounsels ..... :........ 641 1. Amend the Triggering Device . .. .. .. .. 644 2. Allow the Attorney General to Exercise More Power in Conducting the Preliminary Investigation . .. .. .. .. .. .. 646 3. Limit the Categories of Persons Covered by the Statute .. .. .. .. .. .... .. .. 649 4. Leave Other Investigations to Ad Ho c App ointments of Sp ecial Prosecutors . .. .. 653 * Professor of Law, Duquesne University. B.A. 1977, University of Pittsburgh; J.D. 1980, Harvard. Professor Gormley is author of .ARCHIBALD Cox, CONSCIENCE OF A NATION (1997), the biography of the first Watergate Special Prosecutor. - Ed. I would like to thank Professor Archibald Cox, Judge Lawrence Walsh, Professor Julie O'Sullivan, Professor Mark Kende, and Judge Robert J. Cindrich, who read drafts of this article and provided useful comments. I would also like to express my appreciation to Dean Nicholas P. Cafardi for his support, June Devinney for her excellent secretarial assistance, and Kate Sabatos for her expert research work. William Sherman and Kristin Wilhelm from the Michigan Law Review deserve much credit for guiding this Article to completion so pro­ fessionally. I would finally like to thank my wife, Laura Kozler Gormley, who endured an­ other long writing project just when she deserved a vacation in Tahiti. 601 602 Michigan Law Review [Vol. 97:601 B. Reform the Role and Regulate th e Power of In dependent Counsels .. .. .. .. .. .. .. .. 659 1. Th e In dependent Counsel's Ju risdictional Limits Must Be Strictly Controlled . .. .. 659 2. Control the Duraiion of In vestigations Th rough Periodic Review . .. .. .. .. 669 3. Require Th at Each In dependent Counsel Wo rk Full-Time . .. .. .. .. .. .. .. 671 4. Control Costs by Reducing th e Number of Cases Th at Tr igger the Statute.............. 674 5. Sharply Limit Final Reports . .. .. .. 675 C. Refo rm and Clarify the Duties of the Sp ecial Court.......................................... 678 1. Authorize the Sp ecial Court to Consult with the Attorney General in Selecting an In dependent Counsel . .. .. .. .. .. 684 2. Give the Court Exp ress Power to Carry Out Its Duties . .. .. .. .. .. .. .. 686 3. Give th e Court Power to Replace an In dependent Counsel Un der Certain Circumstances . .. .. .. .. .. .. .. .. 689 IV. CONCLUSION ....................................... 692 IN TRODUCTION On Friday, October 19, 1973, President Richard M. Nixon took a risky step to de-fang the Watergate investigation that had become a "viper in the bosom" of his Presidency.1 The U.S. Court of Appeals had just directed him to tum over tape-recordings subpoe­ naed by Watergate Special Prosecutor Archibald Cox; these tape­ recordings might prove or disprove White House involvement in the Watergate cover-up. Rather than challenge this ruling, the President conceived a new plan. The White House would prepare summaries of the nine tape-recordings in question, which would be verified by Senator John Stennis, a seventy-two-year-old Democrat from Mississippi, working alone with the assistance of a single White House lawyer. Cox would be entitled to the verified tran­ scripts, but nothing else. It was a generous offer, in the President's mind; there would be no further negotiations. The following day, October 20th, Cox held a dramatic press con­ ference, spelling out for the American public why he could not 1. RICHARD NIXON, RN: THE MEMOIRS OF RICHARD NIXON 929 (1978). December 1998] Th e Independent Counsel 603 agree to the Stennis proposal. President Nixon turned offhis televi­ sion set and summoned Attorney General Elliot Richardson to the Oval Office: Cox had to be fired - immediately. Richardson re­ fused the Presidential directive and resigned. Deputy Attorney General William Ruckelshaus attempted to resign and was "fired" by the President. Finally, Solicitor General Robert Bork carried out the President's order, terminating Cox. "In the shock of that moment," one commentator later recounted, "the American public got a taste of what it would be like to live in a country where their ruler is above the law."2 A firestorm of public protest erupted that led to the appointment of a new special prosecutor - Leon Jaworski - and the slow unraveling of the Nixon presidency.3 Nine days after the infamous "Saturday Night Massacre," Congress began hearings to consider legislation that would create a statutory special prosecutor. The purpose: allow the Watergate in­ vestigation to resume and prevent future crises such as Nixon's fir­ ing of Cox.4 A lineup of distinguished witnesses filed through the House and Senate to testify during those stormy days of October and November. Archibald Cox himself was one of the chief spokes­ men in favor of a statutorily-created special prosecutor. Before packing up his boxes and driving with his wife to their secluded farmhouse in Maine, the ousted Watergate Special Prosecutor told a subcommittee of the House Judiciary Committee that an investi­ gation by an outside, neutral prosecutor was almost essential if the 2. Simon Lazarus & Jane E. Larson, Th e Constitutionality of the Independent Counsel Statute, 25 AM. CRIM. L. REv. 187, 187 (1987). Lazarus participated in drafting, and lobbying in favor of, the final independent counsel statute as a White House advisor to President Jimmy Carter. Id. 3. For a more detailed examination of these events, see KEN GORMLEY, ARCHIBALD Cox: CONSCIENCE OF A NATION 318-58 (1997). The White House lawyer who was intended to assist Senator Stennis in verifying the tapes was J. Fred Buzhardt, a friend of Stennis. Id. at 332. 4. See Katy J. Harriger, Damned If She Does and Damned If She Doesn't: Th e Attorney General and the Independent Counsel Statute, 86 GEo. L.J. 2097, 2101-02 (1998). Cox had been appointed Special Prosecutor by Attorney General Elliot Richardson, as part of a pack­ age by which the Senate insisted upon the selection of a neutral prosecutor for the Watergate case, before it approved the President's choice (Richardson) to replace Attorney General Richard Kleindienst, who had resigned due to allegations of impropriety in handling the Watergate prosecution. Cox was governed by a hastily-made charter that was drafted by Richardson's office and refined by Cox and Richardson even before Cox accepted the posi­ tion. See GORMLEY, supra note 3, at 232-51. The charter was formalized pursuant to a regu­ lation adopted by the Attorney General. See 38 Fed. Reg. 14,688 (1973). For a copy of Cox's charter, designated "Duties and Responsibilities of the Special Prosecutor," see also Hear­ ings on H.J. Res. 784 and H. R. 10937 Before the Subcomm. on Criminal Justice of the House Comm. on the Ju diciary, 93d Cong. 110 (1973) [hereinafter 1973 Hearings Before the Sub­ comm. on Criminal Justice], and WATERGATE SPECIAL PROSECUTION FORCE REPORT app. I, at 250-51 (1975) [hereinafter WATERGATE REPORT]. 604 Michigan Law Review (Vo l. 97:601 country was to survive1future crises like Watergate.5 As Cox reiter­ ated in a second round of congressional testimony: "The pressures, the tensions of divided loyalty are too much for any man, and as honorable and conscientious as any individual might be, the public could never feel entirely easy about the vigor and thoroughness with which the investigation was pursued. Some outside person is absolutely essential: "6 Even as he testified, however, Cox was keenly aware that the concept of a special prosecutor divorced from the executive branch raised serious constitutional concerns, particularly relating to sepa­ ration of powers. But he felt strongly that an office could be crafted to surmount these constitutional
Load more

Recommended publications
  • The Evolution of Corruption: from "Honest Graft" to Conflicts of Interest
    T ONE The Evolution of Corruption: From "Honest Graft" to Conflicts of Interest Supposin' it's a new bridge they're going to build. I get tipped off and I buy as much property as I can that has to be taken for the approaches. I sell at my own price later on and drop some more money in the bank. Wouldn't you? It's just like lookin' ahead in Wall Street or in the coffee or cotton market It's honest graft and I'm lookin' for it every day of the year. George Washington Plunkitt, as quoted in William L. Riordon, Plunkitt ofTammany Hall To understand the evolution of the anticorruption project, it is necessary to begin with some observations about corruption itself. This chapter deals with four basic issues: the subjectivity of the definition of corruption, the increasing gap between expectations of official behavior and actual behav­ ior, the special politics of scandal and reform, and the difficulty of measur­ ing corruption. Defining Corruption Corruption is neither a single form of behavior nor an obvious species of conduct. 1 Corruption is the name we apply to some reciprocities by some people in some contexts at some times. The popular use of the term does not require that the conduct labeled corrupt be illegal; it is enough that the la­ beler thinks it is immoral or unethicaL Since people's views about moral and ethical conduct differ in important respects, corruption is often a contested ~. labeL Indeed, these days public servants are admonished not only to adhere to the skein of laws prohibiting a wide variety of conduct, but to avoid "the appearance of corruption." Such a warning recognizes that the term corrup­ tion refers to more than just positive law, but fails to recognize that appear­ ance of corruption is in the eyes of the beholder.
    [Show full text]
  • Watergate. Documents from the National Archives. INSTITUTION National Archives and Records Administration, Washington, DC
    DOCUMENT RESUME ED 395 848 SO 025 673 TITLE Watergate. Documents from the National Archives. INSTITUTION National Archives and Records Administration, Washington, DC. REPORT NO ISBN-0-8403-7401-1 PUB DATE [82] NOTE 49p.; Some print face may be difficult to read. AVAILABLE FROMKendall/Hunt Publishing Company, 2460 Kerper Boulevard, P.O. Box 539, Dubuque, IA 52004-0539. PUB TYPE Guides General (050) EDRS PRICE MF01/PCO2 Plus Postage. DESCRIPTORS Government Libraries; Instructional Materials; Library Collections; Material Culture; *Modern History; National Libraries; *Presidents of the Uniteu States; Realia; *United States History IDENTIFIERS National Archives DC; *Nixon (Richard M); *Watergate ABSTRACT The documents in this package focus on the three basic questions raised by Watergate:(1) Should President Nixon have been impeached?;(2) Should he have been prosecuted?; and (3) Should he have been pardoned? These documents do not begin to tell the whole story of Watergate, but they do suggest some of the issues involved. "Suggestions for Further Reading" will help readers sharpen their understanding of Watergate. The documents in this series include: (1) Richard M. Nixon's letter of resignation, August 9,1974;(2) House of Representatives Committee on the Judiciary Report on Impeachment of Richard M. Nixon, August 20, 1974;(3) Transcript excerpts from Hearings before the Committee on the Judiciary, House of Representatives, June 23, 1972;(4) Memorandum by Vernon Walters, Hearings Before the Committee on the Judiciary, House of Representatives, June 28, 1972;(5) Memorandum from Carl B. Feldbaum and Peter M. Kreindler to Leon Jaworski about factors to consider in prosecuting Nixon, August 9,1974;(6) "Washington Post" article about Watergate public opinion, August 26, 1974;(7) Memorandum from Philip A.
    [Show full text]
  • Martha L. Minow
    Martha L. Minow 1525 Massachusetts Avenue Griswold 407, Harvard Law School Cambridge, MA 02138 (617) 495-4276 [email protected] Current Academic Appointments: 300th Anniversary University Professor, Harvard University Harvard University Distinguished Service Professor Faculty, Harvard Graduate School of Education Faculty Associate, Carr Center for Human Rights, Harvard Kennedy School of Government Current Activities: Advantage Testing Foundation, Vice-Chair and Trustee American Academy of Arts and Sciences, Access to Justice Project American Bar Association Center for Innovation, Advisory Council American Law Institute, Member Berkman Klein Center for Internet and Society, Harvard University, Director Campaign Legal Center, Board of Trustees Carnegie Corporation, Board of Trustees Committee to Visit the Harvard Business School, Harvard University Board of Overseers Facing History and Ourselves, Board of Scholars Harvard Data Science Review, Associate Editor Initiative on Harvard and the Legacy of Slavery Law, Violence, and Meaning Series, Univ. of Michigan Press, Co-Editor MacArthur Foundation, Director MIT Media Lab, Advisory Council MIT Schwarzman College of Computing, Co-Chair, External Advisory Council National Academy of Sciences' Committee on Science, Technology, and Law Profiles in Courage Award Selection Committee, JFK Library, Chair Russell Sage Foundation, Trustee Skadden Fellowship Foundation, Selection Trustee Susan Crown Exchange Foundation, Trustee WGBH Board of Trustees, Trustee Education: Yale Law School, J.D. 1979 Articles and Book Review Editor, Yale Law Journal, 1978-1979 Editor, Yale Law Journal, 1977-1978 Harvard Graduate School of Education, Ed.M. 1976 University of Michigan, A.B. 1975 Phi Beta Kappa, Magna Cum Laude James B. Angell Scholar, Branstrom Prize New Trier East High School, Winnetka, Illinois, 1968-1972 Honors and Fellowships: Leo Baeck Medal, Nov.
    [Show full text]
  • The Watergate Story (Washingtonpost.Com)
    The Watergate Story (washingtonpost.com) Hello corderoric | Change Preferences | Sign Out TODAY'S NEWSPAPER Subscribe | PostPoints NEWS POLITICS OPINIONS BUSINESS LOCAL SPORTS ARTS & GOING OUT JOBS CARS REAL RENTALS CLASSIFIEDS LIVING GUIDE ESTATE SEARCH: washingtonpost.com Web | Search Archives washingtonpost.com > Politics> Special Reports 'Deep Throat' Mark Felt Dies at 95 The most famous anonymous source in American history died Dec. 18 at his home in Santa Rosa, Calif. "Whether ours shall continue to be a government of laws and not of men is now before Congress and ultimately the American people." A curious crime, two young The courts, the Congress and President Nixon refuses to After 30 years, one of reporters, and a secret source a special prosecutor probe release the tapes and fires the Washington's best-kept known as "Deep Throat" ... the burglars' connections to special prosecutor. A secrets is exposed. —Special Prosecutor Archibald Cox after his Washington would be the White House and decisive Supreme Court firing, Oct. 20, 1973 changed forever. discover a secret taping ruling is a victory for system. investigators. • Q&A Transcript: John Dean's new book "Pure Goldwater" (May 6, 2008) • Obituary: Nixon Aide DeVan L. Shumway, 77 (April 26, 2008) Wg:1 http://www.washingtonpost.com/wp-srv/politics/special/watergate/index.html#chapters[6/14/2009 6:06:08 PM] The Watergate Story (washingtonpost.com) • Does the News Matter To Anyone Anymore? (Jan. 20, 2008) • Why I Believe Bush Must Go (Jan. 6, 2008) Key Players | Timeline | Herblock
    [Show full text]
  • Specious Poisons?: Reputation, Gender, and Democratic Politics (Under the Direction of Susan Bickford.)
    SPECIOUS POISONS?: REPUTATION, GENDER, AND DEMOCRATIC POLITICS Erin N. Taylor A dissertation submitted to the faculty of the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of Political Science. Chapel Hill 2006 Approved by Advisor: Susan Bickford Reader: Michael Lienesch Reader: John McGowan Reader: Jeff Spinner-Halev Reader: Marco Steenbergen ABSTRACT ERIN N. TAYLOR: Specious Poisons?: Reputation, Gender, and Democratic Politics (Under the direction of Susan Bickford.) Suggesting that reputation and gossip have been largely ignored by contemporary political theorists, I argue that both reputation and the gossip that helps to constitute it are important aspects of our communal and political lives. I begin with the work of Jean-Jacques Rousseau as representative of a larger early modern discourse that identified the desire for reputation as one that is central to human beings. Arguing that this desire for reputation simultaneously poses great dangers and great power for political communities, Rousseau’s vision urges careful attention to political arrangements as a way of harnessing the positive effects of the desire for reputation. In my second chapter, I move to a focus on the relationship between reputation and gender, interrogating the necessity that women maintain spotless sexual reputations (a central feature to Rousseau’s political schema) in light of both Mary Wollstonecraft’s critique of Rousseau as well as my examination of the fate of Rousseau’s heroines. Turning to the work of Harriet Taylor and John Stuart Mill, I contend that their arguments about the stifling effects of reputational politics for individual liberty point to a nuanced understanding of the differential effects of reputation for individuals in various echelons of society.
    [Show full text]
  • The Impeachment of President Clinton: an Ugly Mix of Three Powerful Forces
    POPP_FMT.DOC 11/14/00 10:55 AM THE IMPEACHMENT OF PRESIDENT CLINTON: AN UGLY MIX OF THREE POWERFUL FORCES KAREN A. POPP* I INTRODUCTION President Clinton should not have been impeached by the House of Representatives and, once impeached, was properly acquitted by the Senate. Thus, it should come as no surprise that I agree with much of what Professor Susan Low Bloch has written in her article, A Report Card on the Impeachment: Judging the Institutions That Judged President Clinton.1 As Professor Bloch indicates, it is essential for us to assess how Congress arrived at the point of impeaching President Clinton, how the impeachment process itself worked, and what we can learn from it.2 Indeed, much has already been written and said on these topics, and these issues will no doubt continue to be debated and analyzed for years to come. So, how do I rate the impeachment process of President Clinton? I would give it a failing grade. Although the Senate reached the right result by acquitting the President, the fact that the Senate voted as it did is cold comfort. The impeachment process should have never gone that far. In effect, the second parachute finally opened, just before the impeachment process hit the ground. One nevertheless wonders, “Why did the first parachute fail?” As the events were unfolding, it appeared that the 1998-99 impeachment debacle resulted in large part from an ugly mix of three extremely powerful forces: an independent counsel who abused his virtually unlimited power; extreme congressional partisanship that was motivated by the desire to gain control of the government; and media outlets that continuously sought to profit from the sensationalism of it all and consistently flouted standards of professional journalism along the way.
    [Show full text]
  • The Impartiality Paradox
    The Impartiality Paradox Melissa E. Loewenstemt The constitutional principles that bind our free society instruct that the American people must "hold the judgeship in the highest esteem, that they re- gard it as the symbol of impartial, fair, and equal justice under law."'1 Accord- ingly, in contrast with the political branches, the Supreme Court's decisions "are legitimate only when [the Court] seeks to dissociate itself from individual 2 or group interests, and to judge by disinterested and more objective standards." As Justice Frankfurter said, "justice must satisfy the appearance of justice. 3 Almost instinctively, once a President appoints a judge to sit on the Su- preme Court,4 the public earmarks the Justice as an incarnation of impartiality, neutrality, and trustworthiness. Not surprisingly then, Presidents have looked to the Court for appointments to high profile and important committees of national concern. 5 It is among members of the judiciary that a President can find individuals certain to obtain the immediate respect of the American people, and often the world community. It is a judge's neutrality, fair-mindedness, and integrity that once again label him a person of impartiality and fairness, a per- son who seeks justice, and a President's first choice to serve the nation. The characteristics that led to a judge's initial appointment under our adversary sys- tem, and which lend themselves to appearances of propriety and justice in our courts, often carry over into extrajudicial activities as well. As Ralph K. Winter, Jr., then a professor at the Yale Law School, stated: [t]he appointment of a Justice of the Supreme Court to head a governmental com- mission or inquiry usually occurs because of the existence of a highly controversial issue which calls for some kind of official or authoritative resolution ....And the use of Supreme Court Justices, experience shows, is generally prompted by a presi- t Yale Law School, J.D.
    [Show full text]
  • A List of the Records That Petitioners Seek Is Attached to the Petition, Filed Concurrently Herewith
    UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN RE PETITION OF STANLEY KUTLER, ) AMERICAN HISTORICAL ASSOCIATION, ) AMERICAN SOCIETY FOR LEGAL HISTORY, ) Miscellaneous Action No. ORGANIZATION OF AMERICAN HISTORIANS, ) and SOCIETY OF AMERICAN ARCHIVISTS. ) ) MEMORANDUM IN SUPPORT OF PETITION FOR ORDER DIRECTING RELEASE OF TRANSCRIPT OF RICHARD M. NIXON’S GRAND JURY TESTIMONY OF JUNE 23-24, 1975, AND ASSOCIATED MATERIALS OF THE WATERGATE SPECIAL PROSECUTION FORCE Professor Stanley Kutler, the American Historical Association, the American Society for Legal History, the Organization of American Historians, and the Society of American Archivists petition this Court for an order directing the release of President Richard M. Nixon’s thirty-five-year- old grand jury testimony and associated materials of the Watergate Special Prosecution Force.1 On June 23-24, 1975, President Nixon testified before two members of a federal grand jury who had traveled from Washington, DC, to San Clemente, California. The testimony was then presented in Washington, DC, to the full grand jury that had been convened to investigate political espionage, illegal campaign contributions, and other wrongdoing falling under the umbrella term Watergate. Watergate was the defining event of Richard Nixon’s presidency. In the early 1970s, as the Vietnam War raged and the civil rights movement in the United States continued its momentum, the Watergate scandal ignited a crisis of confidence in government leadership and a constitutional crisis that tested the limits of executive power and the mettle of the democratic process. “Watergate” was 1A list of the records that petitioners seek is attached to the Petition, filed concurrently herewith.
    [Show full text]
  • John Mitchell and the Crimes of Watergate Reconsidered Gerald Caplan Pacific Cgem Orge School of Law
    University of the Pacific Scholarly Commons McGeorge School of Law Scholarly Articles McGeorge School of Law Faculty Scholarship 2010 The akM ing of the Attorney General: John Mitchell and the Crimes of Watergate Reconsidered Gerald Caplan Pacific cGeM orge School of Law Follow this and additional works at: https://scholarlycommons.pacific.edu/facultyarticles Part of the Legal Biography Commons, and the President/Executive Department Commons Recommended Citation 41 McGeorge L. Rev. 311 This Article is brought to you for free and open access by the McGeorge School of Law Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in McGeorge School of Law Scholarly Articles by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. Book Review Essay The Making of the Attorney General: John Mitchell and the Crimes of Watergate Reconsidered Gerald Caplan* I. INTRODUCTION Shortly after I resigned my position as General Counsel of the District of Columbia Metropolitan Police Department in 1971, I was startled to receive a two-page letter from Attorney General John Mitchell. I was not a Department of Justice employee, and Mitchell's acquaintance with me was largely second-hand. The contents were surprising. Mitchell generously lauded my rather modest role "in developing an effective and professional law enforcement program for the District of Columbia." Beyond this, he added, "Your thoughtful suggestions have been of considerable help to me and my colleagues at the Department of Justice." The salutation was, "Dear Jerry," and the signature, "John." I was elated. I framed the letter and hung it in my office.
    [Show full text]
  • Nixon V. Cox: Due Process of Executive Authority
    St. John's Law Review Volume 48 Number 3 Volume 48, March 1974, Number 3 Article 5 Nixon v. Cox: Due Process of Executive Authority Luis Kutner Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. NIXON V. COX: DUE PROCESS OF EXECUTIVE AUTHORITY Luis KUTNER* The President's power of removal was called sharply into question by PresidentNixon's dismissal of Watergate Special Prose- cutor Archibald Cox. Mr. Kutner examines the legal issues involved and concludes that the Cox discharge was legally justifiable, and that the imposition of any restraints on the power to appoint and remove Executive officers would be unwise. I think it absolutely necessary that the President should have the power of removing from office. i -James Madison' I. INTRODUCTION This paper will examine the constitutional questions with regard to the removal power of the Chief Executive, more specifically, those relating to the recent dismissal of Archibald Cox as Special Prosecutor in the Watergate inquiry. Unfortunately, it seems that the efforts of President Nixon in proposing his "Stennis compromise," in the hope of averting a pending constitutional confrontation over the matter of his subpoenaed tapes, led to developments that created a new constitu- tional crisis instead of swiftly resolving the tapes dispute.
    [Show full text]
  • Observations on the Rise of the Appellate Litigator
    Observations on the Rise of the Appellate Litigator Thomas G. Hungar and Nikesh Jindal* I. INTRODUCTION........................................................................511 II. THE EMERGENCE OF A PRIVATE APPELLATE BAR ...................512 III. The Reasons Behind the Development of a Private Appellate Bar..........................................................................517 A. Appellate Practices as a Response to Modern Law Firm Economics ..............................................................518 B. Increasing Sophistication Among Clients About the Need for High-Quality Appellate Representation ...........523 C. The Increasing Stakes of Civil Litigation........................525 D. A Changing Supreme Court ............................................527 IV. SKILLS OF AN EFFECTIVE APPELLATE LAWYER.......................529 V. CONCLUSION ...........................................................................536 I. INTRODUCTION Over the last few decades, there has been a noticeable increase in the visibility and prominence of appellate litigators in the private bar. Most of the attention has focused on Supreme Court advocacy, where certain private law firms and lawyers have developed reputations for specialized expertise and experience in 1 briefing and arguing cases before the Court, but the phenomenon extends to other federal and state court appeals as well. The practice of law as a whole is becoming increasingly specialized, and the trend in appellate litigation is no exception, although it appears to be a more recent occurrence than the growth of substantive speciali- * Thomas G. Hungar is a partner at Gibson, Dunn & Crutcher LLP and Co- Chair of the firm’s Appellate and Constitutional Law Practice Group. He previously served as Deputy Solicitor General of the United States. Nikesh Jindal is an associate at Gibson, Dunn & Crutcher LLP and a member of the firm’s Litigation Department and of the Administrative Law and Regulatory and White Collar Defense and Investigations Practice Groups.
    [Show full text]
  • Barr Will Not Be Independent of President Trump Or
    Attorney General Nominee William barr President Trump announced that he intends to nominate William Barr to be attorney general. Barr served as attorney general under President George H.W. Bush from 1991-1993. Since then, he has been a telecommunications executive and board member, as well as in private legal practice. BARR WILL NOT BE INDEPENDENT OF PRESIDENT TRUMP OR RESTRAIN Trump’s ATTACKS ON THE RULE OF LAW Threat TO THE MUELLER INVESTIGATION Barr authored a controversial memo attacking part of the Mueller investigation. In June 2018, Barr sent the Department of Justice a lengthy memo arguing that Mueller shouldn't be able to investigate Trump for obstruction of justice. The memo, which Barr reportedly shared with the White House as well, raises serious concerns that Barr thinks Trump should be above the law. Barr has already been asked to defend President Trump in the Mueller investigation. President Trump repeatedly criticized Attorney General Jeff Sessions for failing to rein in Special Counsel Robert Mueller, and clearly a priority for the president is appointing an individual to lead the Justice Department who will protect him from investigations. President Trump has reportedly asked Barr in the past whether he would serve as Trump’s personal defense attorney and has inquired whether Barr, like Sessions, would recuse himself from the Mueller investigation. Barr is already on record minimizing the seriousness of allegations surrounding Trump and Russia. In reference to a supposed Clinton uranium scandal that gained traction in right-wing conspiracy circles, it was reported that “Mr. Barr said he sees more basis for investigating the uranium deal than any supposed collusion between Mr.
    [Show full text]