SPECIAL PROSECUTOR

Special prosecutors, also known as independent counsel, are private attorneys appointed to investigate and, if need be, to prosecute government officials accused of criminal wrongdoing. In 1978 Congress enacted a law providing for the appointment of special prosecutors investigating executive branch officials as part of the Ethics in Government Act. The law was revised and reenacted in 1983 and 1987. It has come under heavy attack by some as violative of the separation of powers, but the Supreme Court sustained the law in Morrison v. Olson in 1988.

As currently codified in 28 U.S.C. ©© 591–599, the independent counsel statute provides that a majority of members of Congress of either party sitting on the judiciary committee of either house may request an independent counsel to investigate allegations against a wide array of executive branch officials. Once the members have requested a special prosecutor under the law, the attorney general must initiate a preliminary investigation into the allegations, and unless the attorney general can certify that "there are no reasonable grounds to believe that further investigation is warranted …" he or she must subsequently apply to a special panel of federal judges for appointment of a special prosecutor. The panel, rather than the attorney general, chooses the special prosecutor and determines the scope of the counsel's investigation. Once appointed, the counsel may be fired by the attorney general only for "good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties"—determinations that are all subject to review by the federal courts.

Defenders of the law cite the watergate scandal and argue that the law is necessary to curtail executive branch corruption in cases that the executive branch would rather not prosecute. Critics, however, claim that the statute violates the principle of equality because its provisions apply solely to the executive branch and not to Congress or the judiciary. They also charge that it places an unfair burden on those being investigated. The "no reasonable grounds" standard practically assures that the attorney general will appoint an independent counsel once requested by Congress; and unlike ordinary prosecutors, independent counsels command virtually unlimited financial resources and may extend their investigations for years.

Most important critics contend that the law undermines the separation of powers established by the Constitution. It does this most explicitly by appearing to violate the Constitution's appointments clause, which grants the President alone the power to nominate all executive branch officials except "inferior officers." More subtly, the law seems to shift the balance of power in political battles between the executive and legislative branches. According to the Constitution, the proper congressional remedy for executive branch wrongdoing is impeachment by the House and trial by the Senate. This process safeguards the executive branch from unwarranted attacks by the legislature because it requires Congress to lay its own prestige on the line whenever it prosecutes executive officials. Congress is less likely to impeach executive officials on purely partisan grounds because in so doing it risks losing public support. The independent counsel law, however, insulates Congress from these political costs. Because an independent counsel is ostensibly separate from Congress, it allows members of Congress to cloak partisan attacks behind a façade of impartiality. In short, critics allege, the independent-counsel law almost invites use as a political weapon.

The law's potential for abuse is well illustrated by the case of Theodore Olson, an attorney who served in the Office of Legal Counsel in the Reagan Justice Department. Olson provided legal advice to the administration during its dispute with Congress over the release of documents held by the Environmental Protection Agency (EPA). The administration invoked executive privilege and refused to hand over some of the documents requested by Congress; a rancorous political battle ensued. After it was over, Democratic staff members to the House Judiciary Committee produced a 3,000-page report critical of the Justice Department's role in advising the administration in the controversy. Republicans on the committee strenuously objected to the report as an exercise in partisanship, noting among other facts that no committee or subcommittee meetings were ever held to authorize the report. Nevertheless, House Democrats used the report as the basis for requesting an independent counsel investigation of Justice Department officials.

An independent counsel was subsequently appointed to determine whether Olson gave false and misleading testimony to Congress with regard to the executive privilege controversy. After a six-month investigation, independent counsel Alexia Morrison acknowledged that Olson's testimony "probably d[id] not constitute a prosecutable violation of any federal law." But instead of ending the investigation, Morrison sought permission to expand it. When both the attorney general and the judicial panel that appointed her rebuffed this request, Morrison nevertheless continued the inquiry. All told, Morrison investigated Olson for nearly three years, spending about a million dollars in the process—and forcing Olson to spend roughly the same amount of money defending himself. While still under investigation, Olson challenged the constitutionality of the independent counsel law, and in Morrison v. Olson, a federal appeals court struck down the statute, holding that it violated not only the appointments clause but also Article III of the Constitution and the principle of the separation of powers. The Supreme Court reversed by a vote of 7–1.

Writing for the majority, Chief Justice william h. rehnquist maintained that the independent counsel law does not violate the appointments clause because the independent counsel is an "inferior officer" under the clause and hence requires no presidential nomination. Neither does the law violate Article III of the Constitution by giving the judiciary executive powers because the power to appoint the independent counsel derives from the appointments clause rather than Article III. Finally, the law does not violate the separation of powers because (according to Rehnquist) it does not compel the attorney general to ask for an independent counsel and because the executive branch retains some power to remove an independent counsel from office. Moreover, the law "does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch."

The lone dissenter, Justice antonin scalia, scoffed at this last statement, accusing the majority of ignoring the political realities that clearly underlay the case. He further criticized the majority for its circumscribed reading of the separation of powers. According to Scalia, the question before the Court was simple and unambiguous. The Court had to determine whether the prosecutorial function is a purely executive power. If it is, then the independent counsel law had to be struck down unless it granted the executive branch complete control over the independent counsel. Because no one disputed the fact that the prosecutorial function had always been considered the sole prerogative of the executive branch, the independent counsel provisions as currently constituted were clearly unconstitutional in Scalia's view. "It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are." The fact that the statute gave the executive branch some authority over an independent counsel (extremely limited authority in Scalia's view) did nothing to alter the significance of the constitutional violation.

Morrison v. Olson seems to foreclose future court challenges to the independent counsel law. Nevertheless, the majority in Morrison did indicate that it would give a narrow reading to certain of the act's provisions. For example, Rehnquist granted greater leeway to the executive branch when he stated that the decision of the attorney general not to appoint an independent counsel is unreviewable by the courts, even though this is nowhere stated in the statute.

John G. West, Jr.
(1992)

(see also: Constitutional History, 1980–1990.)

Bibliography

Carter, Stephen L. 1988 The Independent Counsel Mess. Harvard Law Review 102:105–141.

Crovitz, Gordon 1988 The Criminalization of Politics. In Gordon S. Jones and John A. Marini, eds., The Imperial Congress. New York: Pharos Books.

Eastland, Terry 1989 Ethics, Politics and the Independent Counsel: Executive Power, Executive Vice, 1789–1989. Washington, D.C.: National Legal Center for the Public Interest.