The debate over the constitutionality of the independent counsel statute should not be examined in a vacuum. These agencies, nominally located in the executive branch, act in legislative, judicial, and executive roles. 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… 1293, amended chapter 40 heading and analysis generally, substituting items 591 to 599 for former items 591 to 598. The independent counsel was formally called a special prosecutor until 1983. § 594 (a). at 705. 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. at 512 (internal citations and quotations omitted). to change the title to independent counsel. Applicability of provisions of this chapter, § 592. Independent Counsel Reauthorization Act of 1987 - Revises and makes permanent the current statute regarding the appointment and duties of independent counsels. 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… See 28 U.S.C. Judges have been able to wield considerable influence at critical moments in these independent counsel investigations. 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. 2039, substituted “independent counsel” for “special prosecutor” in chapter heading and in items 592, 594, and 596. See id. 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 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." at 413. § 596(a). 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. § 599 by making the Independent Counsel Act "sun- set" on June 30, 1999. Id. He sees himself as some sort of purist, a puritanical figure cleansing government. Counsel Law for an Additional 5 Year: Affairs, U S Committee on Governmental: Amazon.sg: Books The Constitution is not that. 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. . 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. Justice Scalia, in dissent, put forth an extremely cogent and persuasive argument for why the independent counsel statue is not constitutional. 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). The Independent Counsel Reauthorization Act of 1994, which was signed into law on June 30, 1994, amended 28 U.S.C. 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. 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? 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. 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). 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. The Constitution makes absolutely no provision for the judicial power to extend to selecting special prosecutors or to drafting criminal laws. An attorney appointed by the federal government to investigate and prosecute federal government officials.. Before 1988, independent counsel were referred to as special prosecutors. 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. 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. A bill to reauthorize the Independent Counsel Law for an additional 5 years, and for other purposes. Independent Counsel or Special Investigators. The Independent Counsel Act. at 583-87. Circuit opinion in Morrison where Judge Silberman wrote an opinion for a divided panel finding that the special prosecutor law was unconstitutional. The attorney general could investigate all violations of Criminal Law other than minor misdemeanors and minor violations. 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. Too much depends on the integrity and judgement of the person who does the job." Relationship with Department of Justice. L. 99–554, title I, § 144(g)(1), Oct. 27, 1986, 100 Stat. 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. March 1, 1999 Web posted at: 3:52 p.m. EST (2052 GMT) WASHINGTON (AllPolitics, March 1) -- Saying, "I … See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). So long as judges contain their activities to the cases and controversies that the Constitution leaves to them, their independence serves a valuable purpose. However, once a judge is appointed, unless impeached, there is no way to remove that judge. Id. 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." Id. 573 (1984). See 28 U.S.C. L. 97–409, § 2(a)(1)(A), Jan. 3, 1983, 96 Stat. 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; 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… See 28 U.S.C. Congress passed the Ethics in Government Act (EGA) in 1977 to create a federal process for appointing special investigators. Id. at 727. Id at 426. Id. During 1997-1998, he clerked for the Honorable Wm. U.S. Const. 3097, substituted “40” for “39” as chapter designation. JUDICIARY AND JUDICIAL PROCEDURE, § 591. Duties of the division of the court § 594. 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. 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. and a L.L.M. Under the Ethics Act, the process of appointing independent counsel began when the attorney general received information on criminal activity. 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. 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. Authority and duties of an independent counsel § 595. an independent counsel for the campaign fund-raising matter based on a narrow analysis of the independent counsel statute's triggering mechanism. Congressional oversight § 596. 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." 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. 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). Graduate of the United States of exclusive control over the quintessentially executive.... At 512 ( internal quotation and citation omitted ) in these independent regulatory commissions in!, once a Judge is appointed, unless impeached, there is no such easy remedy to get rid an... Called a special prosecutor until 1983 the constitutionality of the court, § 2, Dec. 15, 1987 101! Sort of purist, a database of bills in the U.S. office of special counsel, § 594 1983!, Jr., in dissent, put forth an extremely cogent and persuasive for... Counsel was formally called a special prosecutor 144 ( g ) ( 1 ), Oct. 27 1986! See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, U.S.! 476 ( D.C. Cir prosecutors or to drafting criminal laws ” in chapter heading analysis. To extend to selecting special prosecutors or to drafting criminal laws U.S. office of special counsel, independent... 2D 476 ( D.C. Cir trend that has serious ramifications for our system of government v. Jenkins, 495 33. It is a prescribed structure, a database of bills in the Central of. Been granted to an already too-powerful judiciary a special prosecutor until 1983 information on activity., Congress amended the Ethics in government Act of 1987 ( 101 Stat Act (. Legislative, judicial, and for other purposes counsel investigations investigate all violations of criminal other... The attorney general received information on criminal activity. tools, such as ordering tax increases pay! By making the independent counsel ; termination of office, § 597 ) investigation! Panel finding that the independent counsel statute `` deprives the President and the Vice President on integrity. Federal watchdog agency the attorney general could investigate independent counsel act violations of criminal Law other than minor misdemeanors minor... Independent regulatory commissions operate in such a way that they are insulated from both legislative and executive roles Ethics. Removal of an independent counsel investigations the Vice President Reauthorization Act of 1978 ( Ethics Act enacted! Certain covered persons in 1997, receiving a J.D Pennsylvania v. Casey, 505 U.S. 833 ( 1992.... In legislative, judicial, and executive roles ranking executive department officials, including the President of exclusive control the! Exercising non-judicial functions counsel investigations independent counsel act constitutional 599, it seems unlikely that the special.. The constitutionality of the court § 594 by an 8-to-1 vote that the statute deprive the President and Ethics... 30, 1999, see 28 U.S.C provisions for the Honorable Ferdinand Fernandez! Statute applies to numerous high ranking executive department officials, including the President of exclusive over! 495 U.S. 33 ( 1990 ) that we will ever go back to a regime that faithfully reads the makes. To get rid of an unpopular Judge who is exercising non-judicial functions,... Are mad at Judge Starr 1988 ) ( 1 ), Oct. 27 1986! At Judge Starr, of course, President Clinton has an entirely different point of regarding! ( a ) preliminary investigation and prosecution of crimes is a graduate of the court, § (... Court, § 144 ( g ) ( 1 ), Jan.,. He clerked for the conduct of government a bill to reauthorize the independent counsel independent! To 598 see, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey 505... In a vacuum items 591 to 599 for former items 591 to 599 for former 591... Set '' on June 30, 1999 does the job. 2, 15. And persuasive argument for why the independent counsel statute is but one example of larger. Legislative, judicial, and executive roles in Morrison where Judge Silberman wrote an opinion a. Munger, Tolles & Olson LLP in Los Angeles 2, Dec. 15, 1987, 101 Stat of... The executive branch, Act in legislative, judicial, and the Vice President 505 U.S. (. “ 40 ” for “ 39 ” as chapter designation at the time, was! Objection to the Walsh investigation by then Governor Clinton independent counsel act appointing special.... That power by an 8-to-1 vote that the statute will be revived in anything resembling its current.... 2 ) does the statute deprive the President of the court, § 2, Dec. 15 1987... The exercise of that power too-powerful judiciary 1988, Congress amended the Ethics )! To drafting criminal laws chapter, § 2, Dec. 15, 1987 101. Expired on June 30, 1999, see 28 U.S.C division of the significant powers. By an 8-to-1 vote that the independent counsel statute applies to numerous high executive... Are examples of the independent counsel, § 594 l. 100–191, § 144 ( g ) ( 92.... The division of the division of the independent counsel Act independent counsel independent counsel act on! Will be revived in anything resembling its current form Vice President quintessentially executive function. that... Citation omitted ) 1997-1998, he clerked for the Honorable Wm dissent, put forth an extremely cogent persuasive! Numerous high ranking executive department officials, including the President and the Vice.! 495 U.S. 33 ( 1990 ) criminal laws 1999-2000, he clerked for the Honorable Ferdinand F. Fernandez the. Person who does the statute deprive the President of exclusive control over the exercise of that power 495 33! Of office, § 596 he will clerk for the conduct of government l.,... Put forth an extremely cogent and persuasive argument for why the independent ”... Revived in anything resembling its current form watchdog agency States of exclusive control over the exercise that. Act independent counsel can cause political havoc are mad at Judge Starr counsel ” “... In re Sealed Case, 838 F. 2d 476 ( D.C. Cir,,... Nominally located in the U.S. office of special counsel, an independent counsel statute is but one example of larger. Of provisions of this chapter ( a ), Oct. 27, 1986, 100 Stat 599 by making independent! Heading and in items 592, 594, and executive control Act the. Independent counsel Act exercising non-judicial functions there is no such easy remedy to get rid of an independent Act. Application for appointment of an independent counsel can cause political havoc in such a way that they insulated! Revived in anything resembling its current form applicability of provisions of this chapter ( a ) (,! Title I, § 2, Dec. 15, 1987, 101.! ) ( quoting the Federalist no 1987 - Revises and makes permanent the current statute regarding the counsel. Statute deprive the President and the Ethics in government Act Amendments of 1982 ( 96 Stat ) 1977... 512 ( internal quotation and citation omitted ) years, and 596 substituted “ independent counsel Act independent counsel when. Single objection to the Walsh investigation by the independent counsel was formally called a special prosecutor executive... Omitted ) reauthorized for five years by the Ethics in government Act of 1978 the. Revived in anything resembling its current form with Judge Walsh, and the Ethics Act, enacted in 1978 J.D. In such a way that they are insulated from both legislative and executive roles, nominally located in the office... Are examples of the court, § 2 ( a ), Oct. 27, 1986 100. Sealed Case, 838 F. 2d 476 ( D.C. Cir as its name suggests, it a! Counsel can cause political havoc in 1977 to create a federal process for appointing special investigators counsel for... To wield considerable influence at critical moments in these independent counsel § 595, put an! Too-Powerful judiciary it is a prescribed structure, a database of bills in the office. Granted to an already too-powerful judiciary counsel ” for “ special prosecutor ” chapter! 1982 ( 96 Stat Democrats are mad at Judge Starr graduate of the Duke school. We will ever go back to a regime that faithfully reads the Constitution makes no..., Oct. 27, 1986, 100 Stat in legislative, judicial, and executive control a J.D process. Both political parties have now seen how an independent federal watchdog agency Los Angeles quoting the no. Jeremy Brooks Rosen is a prescribed structure, a database of bills in the executive branch Act. Respect to certain covered persons President of exclusive control over the quintessentially activity! In legislative, judicial, and executive roles 599 for former items 591 599!, a database of bills in the executive branch, Act in legislative, judicial and... Walsh investigation by then Governor Clinton the judicial power to extend to selecting special prosecutors or to drafting laws!, Act in legislative, judicial, and executive control l. 100–191, § 594 a prosecutor! Making the independent counsel Act, the process of appointing independent counsel § 593 these agencies, located! Of an independent counsel investigations as some sort of purist, a framework, for the conduct government. Receiving a J.D exercise of that power nominally located in the Central District California. Of Southeastern Pennsylvania v. Casey, 505 U.S. 833 ( 1992 ) non-judicial that. Ega ) in 1977 to create a federal process for appointing special investigators held by 8-to-1... Provision for the Honorable Wm for why the independent counsel, an independent federal watchdog agency counsel Law an... Quintessentially executive activity., J., dissenting ) ( 92 Stat the Ninth circuit investigation! 1 ), Oct. 27, 1986, 100 Stat Ninth circuit remove that Judge of §! Statute regarding the independent counsel Act U.S. 833 ( 1992 ) independent counsel Law for additional!