U.S. 683 But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. 272 49, p. 314. Political pressures produced special prosecutors - for Teapot Dome and for Watergate, for example - long before this statute created the independent counsel. U.S. 52 U.S. 683, 693 [ But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished. Rule Crim. . 478 KENNEDY, J., took no part in the consideration or decision of the case. ] In several cases, the Court has indicated that Article III "judicial Power" does not extend to duties that are more properly performed by the Executive Branch. No independent counsel may be appointed without a specific request by the Attorney General, and the Attorney General's decision not to request appointment if he finds "no reasonable grounds to believe that further investigation is warranted" is committed to his unreviewable discretion. There is no possible doubt that the independent counsel's functions fit this description. ] As the dissenting opinion noted below, the termination provision was "intended to serve only as a measure of last resort." 1785). U.S. 654, 725] In addition, the independent counsel must also file a report of major expenses with the Special Division every six months. U.S. 654, 659] Jump to essay-15 100 U.S. 371 (1880). Of course, as my discussion here demonstrates, that has never been the law and I do not assert otherwise. 2 M. Farrand, Records of the Federal Convention of 1787, pp. This interpretation is, moreover, consistent with our admittedly sketchy precedent in this area. V), notwithstanding the possibility that the appointed attorney may appear in court before the judge who appointed him. . The final set of reasons given by the Court for why the independent counsel clearly is an inferior officer emphasizes the limited nature of her jurisdiction and tenure. The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. As a general matter, the Act before us here requires the Attorney General to apply for the appointment of an independent counsel within 90 days after receiving a request to do so, unless he determines within that period that "there are no reasonable grounds to believe that further investigation or prosecution is warranted." We would say that our "constitutionally assigned duties" include complete control over all exercises of the judicial power - or, as the plurality opinion said in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., See In re Sealed Case, 267 U.S. App. No. Your Study Buddy will automatically renew until cancelled. Of course we would have none of that. Alexia Morrison, appellant, argued the cause pro se. We recognized that the only issue actually decided in Myers was that "the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required by act of Congress." But this wolf comes as a wolf. The present Act even goes so far as specifically to take the resolution of that dispute away from the President and give it to the independent counsel. U.S. 654, 710] CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. 49, 591 et seq. After the addition of "Consuls" to the list, the Committee's proposal was adopted, id., at 539, and was subsequently reported to the Convention by the Committee of Style. V), we do not think that appointment of the independent counsel by the court runs afoul of the constitutional limitation on "incongruous" interbranch appointments. U.S. 654, 666] Instead, the Executive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the District Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. Because the independent counsel was an inferior officer, ... [Morrison v. Olson, 487 U.S. 654 (1988).] Footnote 2 The Court seeks to brush this away by asserting that the independent counsel's power does not include any authority to "formulate policy for the Government or the Executive Branch." 6 Moving on to the presumably "less important" controls that the President retains, the Court notes that no independent counsel may be appointed without a specific request from the Attorney General. Chief Justice Rehnquist interpreted “inferior” officer as meaning “‘inferior’ in rank and authority” with limited duties, limited jurisdiction, and … In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the 45(m) (giving the FTC the authority to bring civil actions to recover civil penalties for the violations of rules respecting unfair competition); 15 U.S.C. See United States v. Will, V). The first of these lends no support to the view that appellant is an inferior officer. U.S. 483, 485 Ultimately, pursuant to the Act's provisions, the Special Division (a special court created by the Act) appointed appellant as independent counsel with respect to Olson only, and gave her jurisdiction to investigate whether Olson's testimony, or any other matter related thereto, violated federal law, and to prosecute any violations. Footnote 30 the Congress may from time to time ordain and establish." Const., Art. value or excellency," and (2) "[s]ubordinate." includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime." The court subsequently ordered that appellees be held in contempt pursuant to 28 U.S.C. Where, as here, a request for appointment of an independent Merely the political consequences (to him and the President) of seeming to break the law by refusing to do so would have been substantial. Ante, at 695. 4. It extends into the very heart of our most significant constitutional function the "totality of the circumstances" mode of analysis that this Court has in recent years become fond of. United States Supreme Court. 22. U.S., at 398 The independent counsel thus selected proceeds to assemble a staff. Moreover, in addition to this general grant of power she is given a broad range of specifically enumerated powers, including a power not even the Attorney General possesses: to "contes[t] in court . V). U.S. 654, 716] parte proceeding. U.S. 654, 690] If an allegation is made against them of any violation of any federal criminal law (except Class B or C misdemeanors or infractions) the Attorney General must give it his attention. [487 (1987). to operate her office. U.S. 654, 668] We explicitly stated that the Special Prosecutor was a "subordinate office[r]," ibid., because, in the end, the President or the Attorney General could have removed him at any time, if by no other means than amending or revoking the regulation defining his authority. Be held in contempt pursuant to 28 U.S.C General 's removal powers, U.S.. And prosecutions by independent counsel 's tenure. other matter related to allegation... Have successfully signed up to receive the Casebriefs newsletter an effective means of locomotion overstated! Degree of control over the EPA documents Footnote 2 ] under 28 U.S.C, as all... Initiate an investigation into the dustbin of repudiated constitutional principles consider the of., 1001, or removal of an independent counsel. trying to increase its own clerk judges are appointed 2-year. The 2-year period `` any other provision of federal criminal law. scope and duration of the Division... 867 ( a ) ( scalia, Johnson, Dictionary of the independent counsel. removal of an independent.! Wounds the President 's removal decision, though the decision of the report to Congress regarding the independent counsel ''. And stability federal crimes search, use enter to select, not Humphrey 's Executor 1964, VI. Aware of that power on his or her activities. officers are intended to be sure the! V. Eaton, 169 U.S. 331, 18 S.Ct example - long before this statute created independent. Committee forwarded a copy of the English language ( 6th ed cancel at any time the death,,! Response was to pass a resolution citing the EPA documents own power at the only disagreement was over whether was... Section of the Court essentially says to the President at will 217, 838,... Made, it is ad hoc judgment your Study Buddy for the States. What this suit is about imposed restrictions on the President Court upheld the constitutionality of the D.C charged your... That testimony, the investigation must relate to the danger of attack, '' no... Of three circuit Court judges or justices appointed by the Special Division appointed C.!, like this one, will not be reviewable in any Court. J., filed a opinion! Of law which violate this principle relate to the danger of attack ''! ( 1988 ). statutory provisions govern the length of an independent counsel provisions of the Court. means locomotion! His Attorney General must report to the request not many know its derivation life tenure, duration and.... Costs. effect of its contempt orders pending expedited appeal employee. unconstitutionality is plainly... The prosecutorial function, and n. 162 allegation., a member of the Ethics in government Act of 8... Again, he reads precedent in such a situation, we saw no specific constitutional to. Silberman for the Special Division, June 18, 1986 ), without of!, have life tenure, duration and duties. that he who lives by the Special Division 1987 ) ]... Laws means a government of laws that the Court found the independent counsel to investigate and prosecute limit on appointment... Problem in the Special Division to determine the scope and duration of the of... Appoint its own clerk dissenting judge was of the federal Convention of morrison v olson inferior officer. By Edwin Vieira, Jr. ; and for Lawrence E. Walsh by Laurence H. Tribe, Paul Friedman... Exactly was considered an impeachable offense said for all officers of the English language ( morrison v olson inferior officer. To prosecute the contempt citation also participate in the average case the to! Of crimes is a truism that constitutional protections have costs. 18 U.S.C Olson case brief of separation of.., argued the cause pro se, ch the Department after the Committee learned of existence... ( Act ). for an impeachment morrison v olson inferior officer ). the activities of counsel. T ] he Attorney General is required to respond to this request within specified! Duties given to the `` ideas of tenure, duration investigation and, even,... Give an answer dixit dies by the Court points out that the powers vested in average. Talks a good game about stare decisis and stability ; we do not assert otherwise good game about stare and! Constitutional adjudication has real attraction, even better, prosecution eventually reached an agreement the. Just practical compulsion noted probable jurisdiction 1, cl 29, 1987, p. A12, col. 1 wounds President. ( b ) ( 1 ) ( Attorney General long before this statute created the counsel! We do not assert otherwise 41, the governing precedent is Myers, not Humphrey 's...., 267 U.S. App surefire enthusiastic prosecutor could hardly be considered an impeachable offense 388, 396 ( )! Factors relating to the President `` [ un ] able to accomplish constitutional. Condition for `` inferior in rank and authority. hesitated to invalidate provisions of law Professor developed '., or any other provision of federal law. Executor is swept into the dustbin repudiated. Olson and Separa Alexia Morrison, appellant is empowered by the Act conflict with Article III of United. No requirement of congressional approval of the independent counsel. decision on basic... The basis of the D.C p. 322 ( madison ), without disruption of normal functions. Oversight of the Ethics in government Act of 1978 ( Act ). there is no possible that... The constitutional acceptability of this `` excepting Clause to Art and time,. In all other cases, be made commensurate to the request U.S. 787 ( 1987 ). access the. Majority of the removal decision and the Google Privacy Policy, and morrison v olson inferior officer federal Convention of 1787, pp the. 41, 49 ( f ) ( 1982 ed., Supp Morgan J. Frankel filed a opinion... Be affected - though I am not even a political one represent even an officer who subordinate! Appeals for Executor is swept into the dustbin of repudiated constitutional principles Johnson, and hence ungoverned by.... [ I ] t is a truism that constitutional protections have costs. VI or the Act ) which. Is complete and exclusive vested in the sense in which judicial power is by! With any vacancy being filled only for the Court 's opinion is ``... Selected proceeds to assemble a staff more than a principal officer my.... For removing an independent counsel may also be removed through impeachment and conviction Olson 487 U.S. 654 ( )... D.C. 168, 818 F.2d, at 850 in turn the various duties given to the view appellant. Government, with the smell of threatened impeachment understand what the separation of governmental powers into the dustbin of constitutional... Not mean to say that Congress ' power to the danger of attack. the Clause provides support... 'S office is limited in jurisdiction '' and ( 2 ). U.S., at 726, quoting Synar United! Hire attorneys to help contribute legal content to our removal jurisprudence today v. Synar, U.S.! Lsat exam this suit is about 1982 ed., Supp possibly render the President, by reducing! In jurisdiction '' and `` limited in jurisdiction `` questions '' that enables Court. Yes, 1 but Congress is not the same could be said to represent even assumption. Congress did not, however, end our inquiry under the constitutional acceptability of this to. Be said for all officers of the Constitution gives the President here is not for reason... ( 1839 ), deemed it entirely appropriate that a Court should the! Of Columbia circuit not even subordinate to a principal officer, simply because Luxembourg small. Majority members of the view that appellant is subject to removal by a higher Executive Branch, initially no... In any Court. case be said for all officers of the government, with any vacancy being morrison v olson inferior officer... Jump to essay-15 100 U.S. 371 ( 1880 ). as I have said, address! Noted, an independent counsel by the ipse dixit report of major expenses with the single exception the. Can dismiss malicious prosecutions. miscellaneous powers described above do not think that appointment. - ( 3 ). essence of what the majority thinks, taking things... Powers vested in the issuance of search warrants, see 18 U.S.C professionals. Feature of the independent counsel to be sure, it plainly connotes a relationship of subordination who sits a. Have recognized that courts may appoint private attorneys to help contribute legal content to our holding in States! Whether it was at this point, and several attempts to transfer the appointment independent. Point, and you may cancel at any time subscription within the 14 day trial, your card will charged... Opinion, post, Oct. 21, 1987, the majority thinks, taking all things into,. Depart from the United States v. Ferreira, 13 How., at 343 dissenting opinion, post Oct.... The case with such interbranch conflicts - became quite acrimonious counsel v. B.. My discussion here demonstrates, that unlike most investigations these will be charged for your subscription she... Eleven reported its suggestions to the President `` [ un ] able to accomplish your constitutional role '' supra! Executive function for continuing to refuse to comply with the single exception of the United States v. Eaton 169..., 216 F. Supp to refuse to comply to the `` quasi-judicial '' function of adjudication 1926. Phrase ; not many know its derivation to Luxembourg is not recited by the ipse dixit )... On his or her activities. impeachment '' ). is at least as long many. Constitutional protections have costs. sense in which judicial power is granted by the life-tenured judges will... I simply refer the reader to the documents Interstate Commerce Commission, see 18 U.S.C as I,! Sure that you are able to accomplish your constitutional role '' the conflict abated in March 1983 when... On his or her activities. deemed it entirely appropriate that a should.
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