The Constitution is not that. This permission included special ethics laws that applied to Executive Branch officials, such as laws that make it illegal for an Executive Branch official to receive money from a person if the official has arranged for that person to be employed by the federa… at 516. Justice Scalia further noted that the independent counsel statute "deprives the President of exclusive control over the quintessentially executive activity." Justice Scalia's thesis was that since Article II of the Constitution provides that the executive power shall be vested in a President: [T]his does not mean some of the executive power, but all of the executive power. So say critics of the Independent Counsel Act, enacted in 1978. Independent Counsel Act Independent Counsel Act Introduction to Independent Counsel Act. However, the independent counsel statute is but one example of a larger trend that has serious ramifications for our system of government. What we must do is be certain that future encroachments on separation of powers are not tolerated, and that the worst examples are stopped. Congressional oversight § 596. Preliminary investigation and application for appointment of an independent counsel § 593. Id. The independent counsel, once appointed, enjoy vast powers including the power: (1) to conduct proceedings before grand juries and other investigations; (2) to participate in court proceedings and engage in any litigation, including civil and criminal matters, that such independent counsel considers necessary; (3) to appeal any decision of a court in any case or proceeding in which such independent counsel participates in an official capacity; (4) to review all documentary evidence available form any source; (5) to determine whether to contest the assertion of any testimonial privilege; (6) to receive appropriate national security clearances and, if necessary, to contest in any court any claim of privilege or attempt to withhold evidence on grounds of national security; (70) to make applications to any federal court for grant of immunity to any witness, consistent with applicable statutory requirements, or for warrants, subpoenas, or other court orders; (8) to inspect, obtain, or use the original or a copy of any tax return; (9) to initiate and conduct prosecutions in any court of competent jurisdiction, framing and signing indictments, filing information, and handling all aspects of any case, in the name of the United States; and (10) to consult with the United States Attorney for the district in which any violation of law with respect to which the independent counsel is appointed with alleged to have occurred. 1988). Independent Counsel Reauthorization Act of 1987 - Revises and makes permanent the current statute regarding the appointment and duties of independent counsels. Applicability of provisions of this chapter, § 592. The Constitution makes absolutely no provision for the judicial power to extend to selecting special prosecutors or to drafting criminal laws. Judge Silberman argued that it was important to keep the judiciary from intruding into areas committed to the other branches of government because it "preserves an independent and neutral judiciary relatively removed from the decisions and activities of the other two branches. It is but one example of a dangerous trend whereby functions of one branch have been taken away and given to another branch, or to an entity that does not fit within one of the three delineated branches found in the Constitution. Applicability of provisions of this chapter (a) Preliminary investigation with respect to certain covered persons. Relationship with Department of Justice. Judge Silberman wrote that "[i]ntimate involvement of an Article II court in the supervision and control of a prosecutorial office undermines the status of the judiciary as a neutral forum for the resolution of disputes between citizens and their governments." Today, of course, President Clinton has an entirely different point of view regarding the independent counsel position. Art. S. 24 (103rd). However, once a judge is appointed, unless impeached, there is no way to remove that judge. Independent Counsel Act History: Constitutionality of the ActIntroduction to Independent Counsel Act ConstitutionalityThe Walsh investigation led many people and political interest groups to criticize the independent counsel statute. Justice Scalia noted that "I dissent from today's decision because I can find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws." at 413. In 1998, the United States Supreme Court held by an 8-to-1 vote that the independent counsel statute was constitutional. A bill to reauthorize the Independent Counsel Law for an additional 5 years, and for other purposes. As a practical matter, it may be unlikely that we will ever go back to a regime that faithfully reads the Constitution. Note: The use of an independent counsel was codified in the Ethics in Government Act of 1978 and is designed to ensure an impartial investigation (as when the Attorney General would face a conflict of interest). It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) to exercise of purely executive power? Rather, as its name suggests, it is a prescribed structure, a framework, for the conduct of government. In Mistretta, the Supreme Court affirmed the constitutionality of the Sentencing Reform Act of 1984 which created the United States Sentencing Commission as an independent body in the judicial branch, with the power to legislate binding sentencing guidelines, which establish a range of sentences for all categories of federal offenses that must be imposed by courts. Justice Scalia noted that the independent counsel in Morrison clearly exercised executive power because "[s]he is vested with the full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice and the Attorney General. 51 (James Madison)). Authority and duties of an independent counsel § 595. Article III of the United States Constitution states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." § 599, it seems unlikely that the statute will be revived in anything resembling its current form. L. Rev. For instance, an attorney appointed by a governmental branch or agency to investigate on a misconduct committed within that branch or agency is an independent counsel. See 28 U.S.C. A defense lawyer for one of the targets of a federal independent counsel probe gave a harsh review of that independent counsel by noting that "[h]is young attorneys lead him by the nose everywhere. The attorney general could investigate all violations of Criminal Law other than minor misdemeanors and minor violations. Authority and duties of an independent counsel, § 596. Duties of the division of the court § 594. Judges have been able to wield considerable influence at critical moments in these independent counsel investigations. The Independent counsel Act allows for the judiciary to engage in executive powers of appointment, which, in the end, may be a much more troubling result. If individual citizens have complaints about the actions of the president or any member of Congress, there is a ready remedy to that disagreement, namely, voting them out of office. in History and Government from Cornell University in 1993. https://fedsoc.org/commentary/publications/the-independent-counsel-act-an-unconstitutional-delegation-of-power-of-judges, The Independent Counsel Act: An Unconstitutional Delegation of Power of Judges, Federalism & Separation of Powers Practice Group. Timeline Originally created by the Ethics in Government Act of 1978 and the Ethics in Government Act Amendments of 1982 (96 Stat. in International and Comparative Law. Mr. Rosen is a graduate of the Duke University School of Law in 1997, receiving a J.D. As the independent counsel statute expired on June 30, 1999, see 28 U.S.C. Such a core executive function, to determine the jurisdiction of a prosecutor, should not be left to the decision of three unelected and unaccountable members of the judiciary. Governmental investigation and prosecution of crimes is a quintessentially executive function." Judges have been able to wield considerable influence at critical moments in these independent counsel investigations. Too much depends on the integrity and judgement of the person who does the job." Reauthorized for five years by the Independent Counsel Reauthorization Act of 1987 (101 Stat. Title 28. An attorney for another of the targets of that probe, Robert Bennett, attacked the lengthy and expensive investigation by noting that "[t]he trouble with the independent counsel's office is that there are no checks and balances… They have an unlimited budget and unlimited time. Republicans were displeased with Judge Walsh, and the Democrats are mad at Judge Starr. § 594(c). These agencies are, arguable, unconstitutional for the same reasons that the Independent Counsel Act should be found to be unconstitutional as well, because they operate outside of the framework of checks and balances set up by the Constitution. With judges already asserting powers for themselves not contemplated by the Constitution, it becomes even more critical that we do not confer additional executive and legislative functions to judges. INDEPENDENT COUNSEL. Any records which were compiled by an independent counsel and, upon termination of the independent counsel’s office, were stored with the division of the court or elsewhere before the enactment of the Independent Counsel Reauthorization Act of 1987, shall also be transferred to the Archivist of the United States by the division of the court or the person in possession of such records. Removal of an independent counsel; termination of office § 597. Accordingly, Congress should let the independent counsel statute expire without an attempt to renew it, on the grounds that the Act unconstitutionally provides executive power to the judiciary. However, there is no such easy remedy to get rid of an unpopular judge who is exercising non-judicial functions. The independent counsel was formally called a special prosecutor until 1983. 2) This bill amends the federal judicial code to codify certain Department of Justice (DOJ) regulations that govern the appointment, oversight, and removal of a special counsel, including regulations: that authorize the Attorney General to appoint and select a special counsel; An independent counsel must conduct an impartial investigation and must provide an unbiased opinion about a lawsuit. White House Trade Advisor Peter Navarro has been under investigation by the U.S. Office of Special Counsel, an independent federal watchdog agency. These agencies, nominally located in the executive branch, act in legislative, judicial, and executive roles. The Attorney General is tasked with the responsibility of conducting a preliminary investigation to determine whether or not an appointment of an independent counsel is appropriate. III. In another eight-to-one decision by the Supreme Court, Mistretta v. United States, Justice Scalia again pointed out a glaring example of a breach of the separation of powers, this time were judges were given legislative power. Justice Scalia argued that the challenge to the independent counsel is a dispute "about power" and, more specifically, about "the allocation of power among Congress, the President and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish _ `so that a gradual concentration of the several powers in the same department' can effectively be resisted." Moreover, courts have created questionable "constitutional rights" that they have used as justification to strike down laws passed through the democratic legislative process. He sees himself as some sort of purist, a puritanical figure cleansing government. Id. § 594 (a). Id. § 599 by making the Independent Counsel Act "sun- set" on June 30, 1999. Id. Relationship with Department of Justice § 598. 1293, amended chapter 40 heading and analysis generally, substituting items 591 to 599 for former items 591 to 598. Id at 426. Independent Counsel or Special Investigators. An attorney appointed by the federal government to investigate and prosecute federal government officials.. Before 1988, independent counsel were referred to as special prosecutors. At the time, there was not a single objection to the Walsh investigation by then Governor Clinton. To accomplish these duties, the independent counsel may appoint, fix the compensation, and assign the duties of any employees that the independent counsel considers necessary. Independent Counsel Act, law that provided for the appointment of a prosecutor, called an independent counsel, to investigate alleged crimes by high-ranking officials in the executive and legislative branches of the United States government. Under the Ethics Act, the process of appointing independent counsel began when the attorney general received information on criminal activity. Justice Scalia argued that there has been a trend: . The judiciary is the only unelected and unaccountable branch of government, which means that it is even more important to limit the role that the judiciary should play in political life. Independent Legal Counsel means an attorney or firm of attorneys, selected in accordance with the provisions of Section 2(d) hereof, who shall not have otherwise performed services for the Company or Indemnitee within the last three years (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements). §§ 701 et seq.]) and a L.L.M. During 1999-2000, he will clerk for the Honorable Ferdinand F. Fernandez in the Ninth Circuit. Matthew Byrne, Jr., in the Central District of California. . See Douglas Frantz, "Bush policy toward Iraq emerging as possible Achilles' heel; Clinton-gore campaign seeks to transform President's foreign affairs strength into a vulnerability and undercut the benefit of the military victory in the Persian Gulf war," Los Angeles Times, October 13, 1992 at A5; Stephanie Saul, "Clinton camp praises probe; focus is on White House aides, " Newsday, December 19, 1992 at 11. U.S. Const. Circuit opinion in Morrison where Judge Silberman wrote an opinion for a divided panel finding that the special prosecutor law was unconstitutional. to treat the Constitution as though it were no more than a generalized prescription that the functions of the Branches should not be commingled too much -- how much is too much to be determined, case-by-case, by this Court. Id. at 575-77. some of these independent regulatory commissions operate in such a way that they are insulated from both legislative and executive control. Senators predict end to Independent Counsel Act. Special Counsel Independence and Integrity Act (Sec. Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting) (quoting The Federalist No. Id. This point was well made in the D.C. ``This is one issue on which the Republicans were right and we were wrong,'' said Sen. Robert Torricelli, D-N.J. ``The independent counsel statute is dead.'' The Independent counsel Act allows for the judiciary to engage in executive powers of appointment, which, in the end, may be a much more troubling result. Congress passed the Ethics in Government Act (EGA) in 1977 to create a federal process for appointing special investigators. Both Morrison and Mistretta are examples of the significant non-judicial powers that have been granted to an already too-powerful judiciary. Mr. Rosen received his B.A. Once the Attorney General determines that an independent counsel should be appointed, three federal judges actually appoint the independent counsel and define the scope of that independent counsel's prosecutorial jurisdiction. § 591 (b). The Act aimed to clean up American politics by creating a new ethics watchdog organization and by instituting new controls on high-ranking government officials, including financial disclosure requirements and lobbying restrictions. 1824 [2 U.S.C.A. See id. JUDICIARY AND JUDICIAL PROCEDURE, § 591. Prominent among these reforms were provisions for the appointment of an independent special prosecutor. That approach ignores the broader question that should be the issue (and historically 2039, substituted “independent counsel” for “special prosecutor” in chapter heading and in items 592, 594, and 596. See 28 U.S.C. Jun 30, 1994. § 592. The attorney general could investigate all violations of Criminal Law other than minor misdemeanors and minor violations. § 596(a). Federalism & Separation of Powers Practice Group Newsletter - Volume 3, Issue 1, Spring 1999. Finally, an independent counsel can only be removed form office, other than by impeachment and conviction, by the personal action of the Attorney General, and only for good cause, physical or mental disability, or any other such condition that substantially impairs the performance of such independent counsel's duties. 1986—Pub. 1987—Pub. SKTC subsequently appointed the Independent Panel to decide how it should proceed with the appeal. at 727. See id. This permission included special ethics laws that applied to Executive Branch officials, such as laws that make it illegal for an Executive Branch official to receive money from a person if the official has arranged for that person to be employed by the federa… Preliminary investigation and application for appointment of an independent counsel, § 593. Id. See Akhil Reed Amar, "Too Much Independence: If Special Prosecutors Are Running Amok, Blame Flaws in the Law," American Lawyer News Service, Oct. 15, 1998. an independent counsel for the campaign fund-raising matter based on a narrow analysis of the independent counsel statute's triggering mechanism. See 28 U.S.C. The panel, comprising law Professor Kevin Tan, Senior Counsel Kenneth Tan and Senior Counsel … to change the title to independent counsel. The independent counsel statute, officially the Ethics in Gov- ernment Act 3 (the “Act”), has served for twenty years as the answer to a more specific version of this question, a … That same independent counsel was also bitterly attacked by members of the same political party as his targets for purportedly engaging in a partisan investigation that resulted in partisan indictments. For many years, judges have been usurping traditional legislative tools, such as ordering tax increases to pay for court-mandated school improvements. See 28 U.S.C. § 593 (b). Covering a wide range of executive branch officials, the law obliged the Attorney General to recommend the appointment of a special prosecutor whenever he or she received s… * Jeremy Brooks Rosen is an Associate at Munger, Tolles & Olson LLP in Los Angeles. In fact, Governor Clinton demanded the appointment of new independent counsels to investigate whether the Bush administration had covered up its pre-war dealings with Iraq and to investigate the search of Clinton's State Department passport files. See Larry Bensky, "Burying Iran-Contra: President Bush's Christmas Eve pardons effectively finished off the special prosecutor," San Francisco Chronicle, January 17, 1993 at 7/Z1. In designing that structure, the Framers themselves considered how much commingling was, in the generality of things, acceptable, and set forth their conclusions in the document. In GovTrack.us, a database of bills in the U.S. Congress. The Independent Counsel Act. Duties of the division of the court, § 594. And sometimes they are meant to garner political support for a law by giving it a catchy name (as with the 'USA Patriot Act' or the 'Take Pride in America Act') or by invoking public outrage or sympathy (as with any number of laws named for victims of crimes). March 1, 1999 Web posted at: 3:52 p.m. EST (2052 GMT) WASHINGTON (AllPolitics, March 1) -- Saying, "I … The AG would run a preliminary investigation and if further probing was necessary, the AG would petition against a three judge panel to appoint an independent counsel. Sometimes they are a way of recognizing or honoring the sponsor or creator of a particular law (as with the 'Taft-Hartley Act'). See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). During 1997-1998, he clerked for the Honorable Wm. 3097, substituted “40” for “39” as chapter designation. Both political parties have now seen how an independent counsel can cause political havoc. § 591. at 512 (internal citations and quotations omitted). Enacted by a Democratic-led Congress, the Independent Counsel Act is up for renewal next year, its prospects dimmed by a change of heart among Democrats unhappy with Kenneth Starr's four-year investigation of President Clinton. So long as judges contain their activities to the cases and controversies that the Constitution leaves to them, their independence serves a valuable purpose. Justice Scalia concluded that "[t]he purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom." Removal of an independent counsel; termination of office, § 597. See 28 U.S.C. . In 1988, Congress amended the ethics in government act of 1978 (Ethics Act) (92 Stat. Thus, the independent counsel possesses tremendous power and authority, with very little check on his or her power or authority, aside from the panel of three judges that defines his or her jurisdiction. Under the Ethics Act, the process of appointing independent counsel began when the attorney general received information on criminal activity. 488 U.S. 361 (1989). L. 100–191, § 2, Dec. 15, 1987, 101 Stat. In general, it is important to have an insulated and life-tenured judiciary precisely because, as a society, we want judges to make decisions based upon the law and not based on the popular prejudices of the times. 573 (1984). His office is an outrage." at 705. Over a the past hundred years, there has been a steady erosion of the strict separation of powers between the three delineated branches of government. The independent counsel statute applies to numerous high ranking executive department officials, including the President and the Vice President. Counsel Law for an Additional 5 Year: Affairs, U S Committee on Governmental: Amazon.sg: Books L. 99–554, title I, § 144(g)(1), Oct. 27, 1986, 100 Stat. See id. Justice Scalia, in dissent, put forth an extremely cogent and persuasive argument for why the independent counsel statue is not constitutional. at 706 (internal quotation and citation omitted). L. 97–409, § 2(a)(1)(A), Jan. 3, 1983, 96 Stat. See Missouri v. Jenkins, 495 U.S. 33 (1990). These statements could have easily been pulled form recent headlines, but instead they all refer to the independent counsel investigation of Lawrence Walsh, including his indictment of former Defense Secretary Caspar Weinberger, only a few days before the 1992 presidential election. Id. (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? The Independent Counsel Reauthorization Act of 1994, which was signed into law on June 30, 1994, amended 28 U.S.C. See In re Sealed Case, 838 F. 2d 476 (D.C. Cir. at 574-81. Discharging tasks other than the deciding of cases and controversies would involve the judges too intimately in the process of policy and thereby weaken confidence in the disinterestedness of their judicatory functions." The creation of a vast "fourth branch" of government encompassing the myriad of "independent" administrative agencies that now exist in Washington illustrates that we have left the original text of the Constitution well behind us. The recent debate in Congress and in the White House centered on the alleged unfairness of the most recent investigation, and of some prior investigations. at 583-87. The debate over the constitutionality of the independent counsel statute should not be examined in a vacuum. See, e.g., Peter Strauss, "The Place of Agencies in Government: Separation of Powers and the Fourth Branch," 84 Colum. 34 Views Program ID: 152795-1 Category: Public Affairs Event Format: Speech Location: Washington, District of Columbia, United States First Aired: Independent counsel, formerlyspecial prosecutor, Official appointed by the court at the request of the U.S. attorney general to investigate and prosecute criminal violations by high government officials, members of Congress, or directors of a presidential election campaign after an investigation by the attorney general finds evidence that a crime may have been committed. The Independent Counsel Act TITLE 28, U.S.C., Section 591. While it is true that the independent prosecutor deprives the president of his ability to exercise all of his executive powers, the flip side is perhaps more interesting. This sentiment has obviously begun to resonate with government officials; the act, which had been renewed by congress every five years since it was created, will expire, for lack of presidential or congressional support, at midnight on June 30, 1999. See 28 U.S.C. For instance, it was a panel of judges that made the decision to expand Kenneth Starr's investigation of Whitewater into the investigation centered around Monica Lewinsky. Even the most nominally independent agencies are still subject to political pressure from the two elected branches, at least through the appointment power and the fact that they all have fixed terms. But, as judges begin to play a role in prosecution, or in writing the laws that they then enforce, or in any number of other non-judicial activities, we run the risk of being subject to the power of the judiciary, with no ability to check that power. 1983—Pub. Chapter, § 144 ( g ) ( a ), Oct.,. 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