_____________________

Ken Gormley

97 Mich. L. Rev. 601

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. The U.S. Court of Appeals had just directed him to turn over tape-recordings subpoenaed 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 transcripts, 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 conference, spelling out for the American public why he could not agree to the Stennis proposal. President Nixon turned off his television set and summoned Attorney General Elliot Richardson to the Oval Office: Cox had to be fired-- immediately. Richardson refused 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." 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.

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 investigation to resume and prevent future crises such as Nixon's firing of Cox. 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 spokesmen 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 investigation by an outside, neutral prosecutor was almost essential if the country was to survive future crises like Watergate. As Cox reiterated 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."

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 separation of powers. But he felt strongly that an office could be crafted to surmount these constitutional obstacles. "[I]t is a doubt which I have satisfied myself that I would be willing to run," he told the Representatives, "if I were in the position of the members of the committee." Five years later, in 1978, the Ethics in Government Act was adopted by Congress after much haggling. It was signed into law on October 26, 1978, by an ebullient President Jimmy Carter. Recent events in Washington have spawned an increasingly public debate as to the effectiveness, constitutionality, and sanity of that nobly conceived Watergate-era statute. With the expansions in 1998 of the Whitewater investigation by independent counsel Kenneth Starr, moving into the Monica Lewinsky affair and other matters only remotely connected to his original charter, the public questions about the independent counsel law have become intense and vocal. Twenty years after its adoption, the statute teeters on the verge of collapse.

I. History of the Independent Counsel Statute

…Immediately after Cox's firing in the fall of 1973, thirty-five different bills were introduced in the House and Senate with at least 165 sponsors. Most of the focus was upon quick legislation that would authorize the appointment of a new Watergate Special Prosecutor to replace Cox, and ensure that this new appointee was protected from another "massacre" by the executive branch. Yet congressional leaders also had an eye on long- term corrective measures. Their broader goal was to institutionalize the position of special prosecutor in order to deal with future crises in unborn administrations.

A. An Urgent Push for Legislation

…The cast of legal scholars and political leaders who supplied testimony for and against the proposed legislation was quite remarkable. Besides Cox himself, Senators Adlai E. Stevenson III (D. Ill.) and Robert Taft, Jr. (R. Ohio), Acting Attorney General Robert H. Bork, Harvard Law Professor Paul Freund, Chicago Law Professor Philip B. Kurland, former Attorney General Elliot Richardson, and a spectrum of other luminaries paraded through the Capital to offer guidance. Professor Freund, a preeminent constitutional scholar, sought to allay the immediate concerns of the Senate Judiciary Committee that any plan divorcing the special prosecutor from the executive branch would be flatly unconstitutional. Freund mollified the Senators by reporting that forty-nine deans of American law schools and the American Bar Association had endorsed the Bayh bill or similar legislation. "I think that if you are really interested in the independence of the prosecutor," Freund told the Senators, "you have to forgo executive control." Professor Kurland of the University of Chicago Law School submitted written comments supporting the law, as did Harvard Law Professors Philip B. Heymann and Stephen Breyer, both of whom had worked on Cox's Watergate Special Prosecution force…

B. The Constitutional Quandaries

Three constitutional issues dominated the debate during those early hearings on the special prosecutor law. These were the same three issues that would occupy Congress and scholars for the next two decades.

1. The Appointments Clause

First, there was a question whether Congress had the power to place authority to select a special prosecutor in the judicial branch, without violating the Appointments Clause of Article II, Section 2 of the Constitution. The 1839 decision of Ex parte Hennen stated that "the appointing power . . . was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged," which permitted the inference that the appointment of a special prosecutor could be delegated only to the executive branch. Yet, a later decision seemed to abandon this rigid interpretation. The Court in Ex parte Siebold had stated that although certain election supervisors were executive creatures, Congress could authorize the judiciary to appoint them. Even though it might be "usual and proper to vest the appointment of inferior officers in that department . . . to which the duties of such officers appertain," the Court concluded, there was "no absolute requirement to this effect in the Constitution." This decision provided a credible basis for the argument that the judiciary could appoint special prosecutors. Yet the precedent remained murky.

2. The Removal Controversy

The second perplexing question was whether the removal provision of the legislation--that would locate power to remove the special prosecutor in the judiciary--encroached upon the President's domain. The Constitution nowhere explicitly stated whether Congress, the President, or both possessed the power to remove federal officers once they were appointed. When it came to certain subordinate employees who clearly served at the will of the President, an early case suggested that the President was vested with power to "remove an officer when in his discretion he regards it for the public good." When it came to a hodgepodge of other federal officials, however, the precedent was blurred. Myers v. United States suggested that the Chief Executive's removal power was broad. Humphrey's Executor v. United States, decided a decade later, abandoned that stance and suggested that the President could be prevented statutorily from removing certain officials in the executive branch, so long as they were not "purely executive officers." United States v. Wiener reinforced Humphrey's "functional" approach. The latter two cases thus provided a certain amount of comfort for those supporting special prosecutor legislation in the wake of Watergate. At the same time, congressional leaders were acutely aware that the proposed special prosecutor would be assigned prosecutorial functions that looked and smelled uniquely executive. Thus, even the most generous removal cases-- Humphrey's Executor and Wiener--provided only shaky guideposts.

3. The Separation of Powers Bugaboo

The third question that nagged the draftsmen of the special prosecutor law subsumed the other two. Did the proposed legislation run broadside into the doctrine of separation of powers? The separation of powers doctrine warned that no branch of government should aggrandize itself by usurping the powers directly or implicitly assigned to another branch. Dean Cramton of Cornell Law School neatly summed up the principle during one House hearing: "Each of the three branches of Government has a central core of functions upon which the other branches may not unduly encroach," Cramton explained. "[T]he basic tasks of one branch cannot be removed from it and placed in either another branch or an independent agency." Because the Constitution mandated that the President "shall take Care that the Laws be faithfully executed," did it not follow that one of the "core functions" of the executive branch was criminal prosecution? If that was the case, did it not further follow that any effort to encroach upon this "core function" of the executive branch by passing it off to an unelected special prosecutor was constitutionally impermissible? The appointment, removal, and separation of powers issues thus divided experts from the start, leading to lengthy (and unsatisfying) hearings as Congress struggled to fit a square peg into an oblong hole…

Hearings on S.24 Before the Senate Comm.on Governmental Affairs

103rd Cong., 1st Sess. (S. Hrg. 103-437) at 11-12

In 1975, after his firing triggered the Constitutional crisis that led to the first version of this Act, Watergate special prosecutor Archibald Cox testified that an independent counsel was needed in certain limited cases and he said, `The pressure, the 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.' Now, nearly two decades later, I could not state it any better.

It is neither fair nor valid to criticize the Act for what politics has wrought, nor to expect the Act to solve all our crises. The Iran-Contra investigation, far from providing support for doing away with the Act, proves its necessity. I believe that this investigation could not have been conducted under the supervision of the Attorney General and concluded with any public confidence in its thoroughness or impartiality.

The reason that I support the concept of an independent counsel with statutory independence is that there is an inherent conflict whenever senior Executive Branch officials are to be investigated by the Department and its appointed head, the Attorney General. The Attorney General serves at the pleasure of the President. Recognition of this conflict does not belittle or demean the impressive professionalism of the Department's career prosecutors, and permit me to say again, I have been so impressed with the lawyers in the Department of Justice at every level. They are non-political, they are splendid lawyers, and they have enjoyed the opportunity to work with your staff on this legislation.

It is absolutely essential for the public to have confidence in the system and you cannot do that when there is conflict or an appearance of conflict in the person who is, in effect, the chief prosecutor. There is an inherent conflict here, and I think that that is why this Act is so important.

It is worth noting that only a few matters that have been investigated by independent counsels over the last decade resulted in convictions. Far more covered individuals accused of wrongdoing have been cleared at the close of an independent counsel's investigation. This role of declining to prosecute a Government official is, I suggest, as important a part as any process in the prosecution. The credibility and public confidence engendered by the fact that an independent and impartial outsider has examined the evidence and concluded that prosecution is not warranted serves to clear a public official's name in a way that no Justice Department investigation ever could.

It is telling that on occasion covered individuals, including former Attorney General Edwin Meese, have called for an appointment of an independent counsel to investigate the allegations against them. I doubt the public would have accepted with confidence the decision not to prosecute had each of those individuals been cleared not by an impartial outside prosecutor but by the Attorney General and his Justice Department.

The Independent Counsel Act was designed to avoid even the appearance of impropriety in the consideration of allegations of misconduct by high-level Executive Branch officials and to prevent, as I have said, the actual or perceived conflicts of interest. The Act thus served as a vehicle to further the public's perception of fairness and thoroughness in such matters, and to avert even the most subtle influences that may appear in an investigation of highly-placed Executive officials."

487 U.S. 654 (1988)

REHNQUIST, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. SCALIA, J., filed a dissenting opinion. KENNEDY, J., took no part in the consideration or decision of the case.

This case presents us with a challenge to the independent counsel provisions of the Ethics in Government Act of 1978, 28 U.S.C. 49, 591 et seq. We hold today that these provisions of the Act do not violate the Appointments Clause of the Constitution, Art. II, 2, cl. 2, or the limitations of Article III, nor do they impermissibly interfere with the President's authority under Article II in violation of the constitutional principle of separation of powers.

I

Briefly stated, Title VI of the Ethics in Government Act, 28 U.S.C. 591-599, allows for the appointment of an "independent counsel" to investigate and, if appropriate, prosecute certain high-ranking Government officials for violations of federal criminal laws. The Act requires the Attorney General, upon receipt of information that he determines is "sufficient to constitute grounds to investigate whether any person [covered by the Act] may have violated any Federal criminal law," to conduct a preliminary investigation of the matter. When the Attorney General has completed this investigation, or 90 days has elapsed, he is required to report to a special court created by the Act "for the purpose of appointing independent counsels." If the Attorney General determines that "there are no reasonable grounds to believe that further investigation is warranted," then he must notify the Special Division of this result. In such a case, "the division of the court shall have no power to appoint an independent counsel." 592(b)(1). If, however, the Attorney General has determined that there are "reasonable grounds to believe that further investigation or prosecution is warranted," then he "shall apply to the division of the court for the appointment of an independent counsel." The Attorney General's application to the court "shall contain sufficient information to assist the [court] in selecting an independent counsel and in defining that independent counsel's prosecutorial jurisdiction." 592(d). Upon receiving this application, the Special Division "shall appoint an appropriate independent counsel and shall define that independent counsel's prosecutorial jurisdiction." 593(b).

With respect to all matters within the independent counsel's jurisdiction, the Act grants the counsel "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice." 594(a). The functions of the independent counsel include conducting grand jury proceedings and other investigations, participating in civil and criminal court proceedings and litigation, and appealing any decision in any case in which the counsel participates in an official capacity. 594(a)(1)-(3). Under 594(a)(9), the counsel's powers include "initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States." The counsel may appoint employees, 594(c), may request and obtain assistance from the Department of Justice, 594(d), and may accept referral of matters from the Attorney General if the matter falls within the counsel's jurisdiction as defined by the Special Division, 594(e). The Act also states that an independent counsel "shall, except where not possible, comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws." 594(f). In addition, whenever a matter has been referred to an independent counsel under the Act, the Attorney General and the Justice Department are required to suspend all investigations and proceedings regarding the matter. 597(a). An independent counsel has "full authority to dismiss matters within [his or her] prosecutorial jurisdiction without conducting an investigation or at any subsequent time before prosecution, if to do so would be consistent" with Department of Justice policy. 594(g).

Two statutory provisions govern the length of an independent counsel's tenure in office. The first defines the procedure for removing an independent counsel. Section 596(a)(1) provides:

If an independent counsel is removed pursuant to this section, the Attorney General is required to submit a report to both the Special Division and the Judiciary Committees of the Senate and the House "specifying the facts found and the ultimate grounds for such removal." 596(a)(2). Under the current version of the Act, an independent counsel can obtain judicial review of the Attorney General's action by filing a civil action in the United States District Court for the District of Columbia. Members of the Special Division "may not hear or determine any such civil action or any appeal of a decision in any such civil action." The reviewing court is authorized to grant reinstatement or "other appropriate relief." 596(a)(3).F8

The other provision governing the tenure of the independent counsel defines the procedures for "terminating" the counsel's office. Under 596(b)(1), the office of an independent counsel terminates when he or she notifies the Attorney General that he or she has completed or substantially completed any investigations or prosecutions undertaken pursuant to the Act. In addition, the Special Division, acting either on its own or on the suggestion of the Attorney General, may terminate the office of an independent counsel at any time if it finds that "the investigation of all matters within the prosecutorial jurisdiction of such independent counsel . . . have been completed or so substantially completed that it would be appropriate for the Department of Justice to complete such investigations and prosecutions." 596(b)(2).F9

Finally, the Act provides for congressional oversight of the activities of independent counsel. An independent counsel may from time to time send Congress statements or reports on his or her activities. 595(a)(2). The "appropriate committees of the Congress" are given oversight jurisdiction in regard to the official conduct of an independent counsel, and the counsel is required by the Act to cooperate with Congress in the exercise of this jurisdiction. 595(a)(1). The counsel is required to inform the House of Representatives of "substantial and credible information which [the counsel] receives . . . that may constitute grounds for an impeachment." 595(c). In addition, the Act gives certain congressional committee members the power to "request in writing that the Attorney General apply for the appointment of an independent counsel." 592(g)(1). The Attorney General is required to respond to this request within a specified time but is not required to accede to the request. 592(g)(2)…

III

The Appointments Clause of Article II reads as follows:

The parties do not dispute that "[t]he Constitution for purposes of appointment . . . divides all its officers into two classes." United States v. Germaine, 99 U.S. 508, 509 (1879). As we stated in Buckley v. Valeo, 424 U.S. 1, 132 (1976): "Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary." The initial question is, accordingly, whether appellant is an "inferior" or a "principal" officer. If she is the latter, as the Court of Appeals concluded, then the Act is in violation of the Appointments Clause.

The line between "inferior" and "principal" officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. See, e. g., 2 J. Story, Commentaries on the Constitution 1536, pp. 397-398 (3d ed. 1858) ("In the practical course of the government there does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the constitution, whose appointment does not necessarily require the concurrence of the senate"). We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view appellant clearly falls on the "inferior officer" side of that line. Several factors lead to this conclusion.

First, appellant is subject to removal by a higher Executive Branch official. Although appellant may not be "subordinate" to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act, the fact that she can be removed by the Attorney General indicates that she is to some degree "inferior" in rank and authority. Second, appellant is empowered by the Act to perform only certain, limited duties. An independent counsel's role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. Admittedly, the Act delegates to appellant "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice," 594(a), but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary to operate her office. The Act specifically provides that in policy matters appellant is to comply to the extent possible with the policies of the Department. 594(f).

Third, appellant's office is limited in jurisdiction. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General. Finally, appellant's office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is "temporary" in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake. In our view, these factors relating to the "ideas of tenure, duration . . . and duties" of the independent counsel, Germaine, supra, at 511, are sufficient to establish that appellant is an "inferior" officer in the constitutional sense...

This does not, however, end our inquiry under the Appointments Clause. Appellees argue that even if appellant is an "inferior" officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch. They contend that the Clause does not contemplate congressional authorization of "interbranch appointments," in which an officer of one branch is appointed by officers of another branch. The relevant language of the Appointments Clause is worth repeating. It reads: ". . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments." On its face, the language of this "excepting clause" admits of no limitation on interbranch appointments. Indeed, the inclusion of "as they think proper" seems clearly to give Congress significant discretion to determine whether it is "proper" to vest the appointment of, for example, executive officials in the "courts of Law." …

We do not mean to say that Congress' power to provide for interbranch appointments of "inferior officers" is unlimited. In addition to separation-of-powers concerns, which would arise if such provisions for appointment had the potential to impair the constitutional functions assigned to one of the branches, Siebold itself suggested that Congress' decision to vest the appointment power in the courts would be improper if there was some "incongruity" between the functions normally performed by the courts and the performance of their duty to appoint. 100 U.S., at 398 ("[T]he duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void"). In this case, however, we do not think it impermissible for Congress to vest the power to appoint independent counsel in a specially created federal court. We thus disagree with the Court of Appeals' conclusion that there is an inherent incongruity about a court having the power to appoint prosecutorial officers.… In the light of the Act's provision making the judges of the Special Division ineligible to participate in any matters relating to an independent counsel they have appointed, 28 U.S.C. 49(f), we do not think that appointment of the independent counsel by the court runs afoul of the constitutional limitation on "incongruous" interbranch appointments.

IV

Appellees next contend that the powers vested in the Special Division by the Act conflict with Article III of the Constitution. We have long recognized that by the express provision of Article III, the judicial power of the United States is limited to "Cases" and "Controversies." See Muskrat v. United States, 219 U.S. 346, 356 (1911). As a general rule, we have broadly stated that "executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution." Buckley, 424 U.S., at 123. The purpose of this limitation is to help ensure the independence of the Judicial Branch and to prevent the Judiciary from encroaching into areas reserved for the other branches. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980). With this in mind, we address in turn the various duties given to the Special Division by the Act.

Most importantly, the Act vests in the Special Division the power to choose who will serve as independent counsel and the power to define his or her jurisdiction. 593(b). Clearly, once it is accepted that the Appointments Clause gives Congress the power to vest the appointment of officials such as the independent counsel in the "courts of Law," there can be no Article III objection to the Special Division's exercise of that power, as the power itself derives from the Appointments Clause, a source of authority for judicial action that is independent of Article III. Appellees contend, however, that the Division's Appointments Clause powers do not encompass the power to define the independent counsel's jurisdiction. We disagree…

We are more doubtful about the Special Division's power to terminate the office of the independent counsel pursuant to 596(b)(2). … . As we see it, "termination" may occur only when the duties of the counsel are truly "completed" or "so substantially completed" that there remains no need for any continuing action by the independent counsel. It is basically a device for removing from the public payroll an independent counsel who has served his or her purpose, but is unwilling to acknowledge the fact. So construed, the Special Division's power to terminate does not pose a sufficient threat of judicial intrusion into matters that are more properly within the Executive's authority to require that the Act be invalidated as inconsistent with Article III.

Nor do we believe, as appellees contend, that the Special Division's exercise of the various powers specifically granted to it under the Act poses any threat to the "impartial and independent federal adjudication of claims within the judicial power of the United States." Commodity Futures Trading Comm'n v. Schor, supra, at 850. We reach this conclusion for two reasons. First, the Act as it currently stands gives the Special Division itself no power to review any of the actions of the independent counsel or any of the actions of the Attorney General with regard to the counsel. Accordingly, there is no risk of partisan or biased adjudication of claims regarding the independent counsel by that court. Second, the Act prevents members of the Special Division from participating in "any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regardless of whether such independent counsel is still serving in that office." 28 U.S.C. 49(f) (emphasis added); see also 596(a)(3) (preventing members of the Special Division from participating in review of the Attorney General's decision to remove an independent counsel). We think both the special court and its judges are sufficiently isolated by these statutory provisions from the review of the activities of the independent counsel so as to avoid any taint of the independence of the Judiciary such as would render the Act invalid under Article III…

V

We now turn to consider whether the Act is invalid under the constitutional principle of separation of powers. Two related issues must be addressed: The first is whether the provision of the Act restricting the Attorney General's power to remove the independent counsel to only those instances in which he can show "good cause," taken by itself, impermissibly interferes with the President's exercise of his constitutionally appointed functions. The second is whether, taken as a whole, the Act violates the separation of powers by reducing the President's ability to control the prosecutorial powers wielded by the independent counsel.

A

…Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch; an independent counsel may be removed from office, "only by the personal action of the Attorney General, and only for good cause." 596(a)(1). There is no requirement of congressional approval of the Attorney General's removal decision, though the decision is subject to judicial review. 596(a)(3). In our view, the removal provisions of the Act make this case more analogous to Humphrey's Executor v. United States, 295 U.S. 602 (1935), and Wiener v. United States, 357 U.S. 349 (1958), than to Myers or Bowsher….

B

The final question to be addressed is whether the Act, taken as a whole, violates the principle of separation of powers by unduly interfering with the role of the Executive Branch. Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. See, e. g., Bowsher v. Synar, 478 U.S., at 725. As we stated in Buckley v. Valeo, 424 U.S. 1 (1976), the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as "a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Id., at 122. We have not hesitated to invalidate provisions of law which violate this principle. See id., at 123. On the other hand, we have never held that the Constitution requires that the three branches of Government "operate with absolute independence." United States v. Nixon, 418 U.S., at 707; see also Nixon v. Administrator of General Services, 433 U.S. 425, 442 (1977) (citing James Madison in The Federalist No. 47, and Joseph Story in 1 Commentaries on the Constitution 525 (M. Bigelow, 5th ed. 1905)). In the often-quoted words of Justice Jackson:

We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. Cf. Commodity Futures Trading Comm'n v. Schor, 478 U.S., at 856. Unlike some of our previous cases, most recently Bowsher v. Synar, this case simply does not pose a "dange[r] of congressional usurpation of Executive Branch functions." see also INS v. Chadha, 462 US 919 (1983). Indeed, with the exception of the power of impeachment - which applies to all officers of the United States - Congress retained for itself no powers of control or supervision over an independent counsel. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit. 592(g). Other than that, Congress' role under the Act is limited to receiving reports or other information and oversight of the independent counsel's activities, 595(a), functions that we have recognized generally as being incidental to the legislative function of Congress. See McGrain v. Daugherty, 273 US 135 (1927).

Similarly, we do not think that the Act works any judicial usurpation of properly executive functions. As should be apparent from our discussion of the Appointments Clause above, the power to appoint inferior officers such as independent counsel is not in itself an "executive" function in the constitutional sense, at least when Congress has exercised its power to vest the appointment of an inferior office in the "courts of Law." We note nonetheless that under the Act the Special Division has no power to appoint an independent counsel sua sponte; it may only do so upon the specific request of the Attorney General, and the courts are specifically prevented from reviewing the Attorney General's decision not to seek appointment, 592(f). In addition, once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel. As we pointed out in our discussion of the Special Division in relation to Article III, the various powers delegated by the statute to the Division are not supervisory or administrative, nor are they functions that the Constitution requires be performed by officials within the Executive Branch. The Act does give a federal court the power to review the Attorney General's decision to remove an independent counsel, but in our view this is a function that is well within the traditional power of the Judiciary.

Finally, we do not think that the Act "impermissibly undermine[s]" the powers of the Executive Branch, Schor, supra, at 856, or "disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions," Nixon v. Administrator of General Services, supra, at 443. It is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity. The Attorney General is not allowed to appoint the individual of his choice; he does not determine the counsel's jurisdiction; and his power to remove a counsel is limited. Nonetheless, the Act does give the Attorney General several means of supervising or controlling the prosecutorial powers that may be wielded by an independent counsel. Most importantly, the Attorney General retains the power to remove the counsel for "good cause," a power that we have already concluded provides the Executive with substantial ability to ensure that the laws are "faithfully executed" by an independent counsel. 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. The Act thus gives the Executive a degree of control over the power to initiate an investigation by the independent counsel. In addition, the jurisdiction of the independent counsel is defined with reference to the facts submitted by the Attorney General, and once a counsel is appointed, the Act requires that the counsel abide by Justice Department policy unless it is not "possible" to do so. Notwithstanding the fact that the counsel is to some degree "independent" and free from executive supervision to a greater extent than other federal prosecutors, in our view these features of the Act give the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.

VI

In sum, we conclude today that it does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division; that the powers exercised by the Special Division under the Act do not violate Article III; and that the Act does not violate the separation-of-powers principle by impermissibly interfering with the functions of the Executive Branch. The decision of the Court of Appeals is therefore

JUSTICE SCALIA, dissenting.

It is the proud boast of our democracy that we have "a government of laws and not of men." Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads as follows:

The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 301 (C. Rossiter ed. 1961). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.

The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, 1, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Article III, 1, provides 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." And the provision at issue here, Art. II, 1, cl. 1, provides that "[t]he executive Power shall be vested in a President of the United States of America." ..

That is what this suit is about. Power. 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," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf…

II

If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. The Court devotes most of its attention to such relatively technical details as the Appointments Clause and the removal power, addressing briefly and only at the end of its opinion the separation of powers. As my prologue suggests, I think that has it backwards. Our opinions are full of the recognition that it is the principle of separation of powers, and the inseparable corollary that each department's "defense must . . . be made commensurate to the danger of attack," Federalist No. 51, p. 322 (J. Madison), which gives comprehensible content to the Appointments Clause, and determines the appropriate scope of the removal power. Thus, while I will subsequently discuss why our appointments and removal jurisprudence does not support today's holding, I begin with a consideration of the fountainhead of that jurisprudence, the separation and equilibration of powers…

To repeat, Article II, 1, cl. 1, of the Constitution provides:

As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. 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) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.

The Court concedes that "[t]here is no real dispute that the functions performed by the independent counsel are `executive'," though it qualifies that concession by adding "in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch." Ante, at 691. The qualifier adds nothing but atmosphere. In what other sense can one identify "the executive Power" that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere - if conducted by government at all - been conducted never by the legislature, never by the courts, and always by the executive. There is no possible doubt that the independent counsel's functions fit this description. She 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." 28 U.S.C. 594(a) (emphasis added). Governmental investigation and prosecution of crimes is a quintessentially executive function. See Heckler v. Chaney, 470 U.S. 821, 832 (1985); Buckley v. Valeo, 424 U.S. 1, 138 (1976); United States v. Nixon, 418 US 683 (1974).

As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that "some" Presidential control. "Most importan[t]" among these controls, the Court asserts, is the Attorney General's "power to remove the counsel for `good cause.'" Ante, at 696. This is somewhat like referring to shackles as an effective means of locomotion. As we recognized in Humphrey's Executor v. United States, 295 U.S. 602 (1935) - indeed, what Humphrey's Executor was all about - limiting removal power to "good cause" is an impediment to, not an effective grant of, Presidential control. We said that limitation was necessary with respect to members of the Federal Trade Commission, which we found to be "an agency of the legislative and judicial departments," and "wholly disconnected from the executive department," id., at 630, because "it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will." Id., at 629. What we in Humphrey's Executor found to be a means of eliminating Presidential control, the Court today considers the "most importan[t]" means of assuring Presidential control. Congress, of course, operated under no such illusion when it enacted this statute, describing the "good cause" limitation as "protecting the independent counsel's ability to act independently of the President's direct control" since it permits removal only for "misconduct." H. R. Conf. Rep. 100-452, p. 37 (1987).

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. As I have discussed above, the condition that renders such a request mandatory (inability to find "no reasonable grounds to believe" that further investigation is warranted) is so insubstantial that the Attorney General's discretion is severely confined. And once the referral is made, it is for the Special Division to determine the scope and duration of the investigation. See 28 U.S.C. 593(b). And in any event, the limited power over referral is irrelevant to the question whether, once appointed, the independent counsel exercises executive power free from the President's control. Finally, the Court points out that the Act directs the independent counsel to abide by general Justice Department policy, except when not "possible." See 28 U.S.C. 594(f). The exception alone shows this to be an empty promise. Even without that, however, one would be hard put to come up with many investigative or prosecutorial "policies" (other than those imposed by the Constitution or by Congress through law) that are absolute. Almost all investigative and prosecutorial decisions - including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted - involve the balancing of innumerable legal and practical considerations. Indeed, even political considerations (in the nonpartisan sense) must be considered, as exemplified by the recent decision of an independent counsel to subpoena the former Ambassador of Canada, producing considerable tension in our relations with that country. See N. Y. Times, May 29, 1987, p. A12, col. 1. Another pre-eminently political decision is whether getting a conviction in a particular case is worth the disclosure of national security information that would be necessary. The Justice Department and our intelligence agencies are often in disagreement on this point, and the Justice Department does not always win. 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. 28 U.S.C. 594(a)(6). In sum, the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion. To take this away is to remove the core of the prosecutorial function, and not merely "some" Presidential control.

As I have said, however, it is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that "[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity." Ante, at 695. It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether "the President's need to control the exercise of [the independent counsel's] discretion is so central to the functioning of the Executive Branch" as to require complete control, ante, at 691 (emphasis added), whether the conferral of his powers upon someone else "sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws," ante, at 693 (emphasis added), and whether "the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties," ante, at 696. 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…

We should say here that the President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States.

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. See Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000e et seq. (prohibiting "employers," not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national origin). No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. See United States v. Will, 449 U.S. 200, 211-217 (1980). A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." Coy v. Iowa, post, at 1020. While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty. The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes, cf. United States v. Lovett, 328 U.S. 303 (1946); and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors - for Teapot Dome and for Watergate, for example - long before this statute created the independent counsel. See Act of Feb. 8, 1924, ch. 16, 43 Stat. 5-6 (1973)…

Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, "crooks." And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution. The present statute provides ample means for that sort of attack, assuring that massive and lengthy investigations will occur, not merely when the Justice Department in the application of its usual standards believes they are called for, but whenever it cannot be said that there are "no reasonable grounds to believe" they are called for. The statute's highly visible procedures assure, moreover, that unlike most investigations these will be widely known and prominently displayed. Thus, in the 10 years since the institution of the independent counsel was established by law, there have been nine highly publicized investigations, a source of constant political damage to two administrations. That they could not remotely be described as merely the application of "normal" investigatory and prosecutory standards is demonstrated by, in addition to the language of the statute ("no reasonable grounds to believe"), the following facts: Congress appropriates approximately $50 million annually for general legal activities, salaries, and expenses of the Criminal Division of the Department of Justice. See 1989 Budget Request of the Department of Justice, Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., pt. 6, pp. 284-285 (1988) (DOJ Budget Request). This money is used to support "[f]ederal appellate activity," "[o]rganized crime prosecution," "[p]ublic integrity" and "[f]raud" matters, "[n]arcotic & dangerous drug prosecution," "[i]nternal security," "[g]eneral litigation and legal advice," "special investigations," "[p]rosecution support," "[o]rganized crime drug enforcement," and "[m]anagement & administration." Id., at 284. By comparison, between May 1986 and August 1987, four independent counsel (not all of whom were operating for that entire period of time) spent almost $5 million (one-tenth of the amount annually appropriated to the entire Criminal Division), spending almost $1 million in the month of August 1987 alone. See Washington Post, Oct. 21, 1987, p. A21, col. 5. For fiscal year 1989, the Department of Justice has requested $52 million for the entire Criminal Division, DOJ Budget Request 285, and $7 million to support the activities of independent counsel, id.

In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the independent counsel, and it does substantially affect the balance of powers. That the Court could possibly conclude otherwise demonstrates both the wisdom of our former constitutional system, in which the degree of reduced control and political impairment were irrelevant, since all purely executive power had to be in the President; and the folly of the new system of standardless judicial allocation of powers we adopt today.

III

As I indicated earlier, the basic separation-of-powers principles I have discussed are what give life and content to our jurisprudence concerning the President's power to appoint and remove officers. The same result of unconstitutionality is therefore plainly indicated by our case law in these areas.

Article II, 2, cl. 2, of the Constitution provides as follows:

Because appellant (who all parties and the Court agree is an officer of the United States, ante, at 671, n. 12) was not appointed by the President with the advice and consent of the Senate, but rather by the Special Division of the United States Court of Appeals, her appointment is constitutional only if (1) she is an "inferior" officer within the meaning of the above Clause, and (2) Congress may vest her appointment in a court of law.

As to the first of these inquiries, the Court does not attempt to "decide exactly" what establishes the line between principal and "inferior" officers, but is confident that, whatever the line may be, appellant "clearly falls on the `inferior officer' side" of it. Ante, at 671. The Court gives three reasons: First, she "is subject to removal by a higher Executive Branch official," namely, the Attorney General. Ibid. Second, she is "empowered by the Act to perform only certain, limited duties." Ibid. Third, her office is "limited in jurisdiction" and "limited in tenure." Ante.

The first of these lends no support to the view that appellant is an inferior officer. Appellant is removable only for "good cause" or physical or mental incapacity. 28 U.S.C. 596(a)(1). By contrast, most (if not all) principal officers in the Executive Branch may be removed by the President at will. I fail to see how the fact that appellant is more difficult to remove than most principal officers helps to establish that she is an inferior officer. And I do not see how it could possibly make any difference to her superior or inferior status that the President's limited power to remove her must be exercised through the Attorney General. If she were removable at will by the Attorney General, then she would be subordinate to him and thus properly designated as inferior; but the Court essentially admits that she is not subordinate. See ante, at 671. If it were common usage to refer to someone as "inferior" who is subject to removal for cause by another, then one would say that the President is "inferior" to Congress.

The second reason offered by the Court - that appellant performs only certain, limited duties - may be relevant to whether she is an inferior officer, but it mischaracterizes the extent of her powers. As the Court states: "Admittedly, the Act delegates to appellant [the] `full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.'" Ibid., quoting 28 U.S.C. 594(a). 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 . . . any claim of privilege or attempt to withhold evidence on grounds of national security." 594(a)(6). Once all of this is "admitted," it seems to me impossible to maintain that appellant's authority is so "limited" as to render her an inferior officer. 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." Ante, at 671. But the same could be said for all officers of the Government, with the single exception of the President. All of them only formulate policy within their respective spheres of responsibility - as does the independent counsel, who must comply with the policies of the Department of Justice only to the extent possible. 594(f).

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. Taking the latter first, I find nothing unusually limited about the independent counsel's tenure. To the contrary, unlike most high ranking Executive Branch officials, she continues to serve until she (or the Special Division) decides that her work is substantially completed. See 596(b)(1), (b)(2). This particular independent prosecutor has already served more than two years, which is at least as long as many Cabinet officials. As to the scope of her jurisdiction, there can be no doubt that is small (though far from unimportant). But within it she exercises more than the full power of the Attorney General. The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxembourg is small. And the federal judge who sits in a small district is not for that reason "inferior in rank and authority." If the mere fragmentation of executive responsibilities into small compartments suffices to render the heads of each of those compartments inferior officers, then Congress could deprive the President of the right to appoint his chief law enforcement officer by dividing up the Attorney General's responsibilities among a number of "lesser" functionaries….

The independent counsel is not even subordinate to the President. The Court essentially admits as much, noting that "appellant may not be `subordinate' to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act." Ante, at 671. In fact, there is no doubt about it. As noted earlier, the Act specifically grants her the "full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice," 28 U.S.C. 594(a), and makes her removable only for "good cause," a limitation specifically intended to ensure that she be independent of, not subordinate to, the President and the Attorney General.

Because appellant is not subordinate to another officer, she is not an "inferior" officer and her appointment other than by the President with the advice and consent of the Senate is unconstitutional….

V

The 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. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive.

Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation. Justice Robert Jackson, when he was Attorney General under President Franklin Roosevelt, described it in a memorable speech to United States Attorneys, as follows:

Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration. If federal prosecutors "pick people that [they] thin[k] [they] should get, rather than cases that need to be prosecuted," if they amass many more resources against a particular prominent individual, or against a particular class of political protesters, or against members of a particular political party, than the gravity of the alleged offenses or the record of successful prosecutions seems to warrant, the unfairness will come home to roost in the Oval Office. I leave it to the reader to recall the examples of this in recent years. That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, "[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility." Federalist No. 70, p. 424. The President is directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame, whereas "one of the weightiest objections to a plurality in the executive . . . is that it tends to conceal faults and destroy responsibility." Id., at 427.

That is the system of justice the rest of us are entitled to, but what of that select class consisting of present or former high-level Executive Branch officials? 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. That in itself is not objectionable. But if, after a 90-day investigation without the benefit of normal investigatory tools, the Attorney General is unable to say that there are "no reasonable grounds to believe" that further investigation is warranted, a process is set in motion that is not in the full control of persons "dependent on the people," and whose flaws cannot be blamed on the President. An independent counsel is selected, and the scope of his or her authority prescribed, by a panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"? To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad - and should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the judges to expand his or her authority or, if that does not work, referring it to the Attorney General, whereupon the whole process would recommence and, if there was "reasonable basis to believe" that further investigation was warranted, that new offense would be referred to the Special Division, which would in all likelihood assign it to the same independent counsel. It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result - the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration - there would be no one accountable to the public to whom the blame could be assigned.

I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution - a vindictive prosecutor, an antagonistic staff, etc. 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…

The notion that every violation of law should be prosecuted, including - indeed, especially - every violation by those in high places, is an attractive one, and it would be risky to argue in an election campaign that that is not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value, and it was with the hope that we would be able to acknowledge and apply such realities that the Constitution spared us, by life tenure, the necessity of election campaigns. I cannot imagine that there are not many thoughtful men and women in Congress who realize that the benefits of this legislation are far outweighed by its harmful effect upon our system of government, and even upon the nature of justice received by those men and women who agree to serve in the Executive Branch. But it is difficult to vote not to enact, and even more difficult to vote to repeal, a statute called, appropriately enough, the Ethics in Government Act. If Congress is controlled by the party other than the one to which the President belongs, it has little incentive to repeal it; if it is controlled by the same party, it dare not. By its shortsighted action today, I fear the Court has permanently encumbered the Republic with an institution that will do it great harm.

Russell M. Soloway

17 Rev. Litig. 611 (Summer 1998)

V. Recent Events Do Not Support the Court's Holding in Morrison

Since 1988, when the Court decided Morrison, there has been a shifting of power on the federal level. By the end of this century, the Democrats will have controlled the Executive Branch for the last eight years of the century. Since 1994, the Republicans have been in control of Congress. Interestingly, the shift has led to the Republicans, who prior to the Clinton Administration were vehemently against the Act, now supporting and enjoying the political benefits of it. Similarly, the Democrats, who once were staunch proponents of the statute, now better understand its failings and are advocating either its amendment or its repeal. Due to the recent increase of alleged executive "scandals" that have been, or are being, subjected to the IC process, it is now helpful to reexamine Morrison and see whether these recent events support the Court's reasoning. As discussed in more detail previously, the Court reasoned that the Act was constitutional based upon the understanding that the IC is an inferior officer and that the Executive retains sufficient controls over the IC process and office. In light of these recent events, is the majority's reasoning still valid?

A. The Limited Jurisdiction Argument Fails

In Morrison, the Court held that the IC is an inferior officer in part because of the office's limited jurisdiction. Chief Justice Rehnquist relied on the limited jurisdictional grant from the Special Division for this analysis. For several reasons, recent events show that far from being limited, the IC's jurisdiction has become expansive and continues to grow. Both the IC and the courts have loosely interpreted broad initial grants of jurisdiction. Additionally, in a politically charged atmosphere, it has proven unrealistic for the Attorney General to deny a request for expansion of jurisdiction of the IC. The investigations led by IC Kenneth Starr and the investigation of former Agriculture Secretary Mike Espy by IC Donald Smaltz, provide ample evidence of the problems with classifying the ever expanding jurisdiction of an IC as limited for the purpose of determining inferior status. In United States v. Tucker, the Eighth Circuit held that the expansion of the IC's jurisdiction is not reviewable by the courts. The IC, Kenneth Starr, was appointed to investigate "whether any individuals or entities have committed a violation of any federal criminal law . . . relating in any way to James B. McDougal's, President William Jefferson Clinton's, or Mrs. Hillary Rodham Clinton's relationships with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, or Capital Management Services, Inc." Later in his investigation, Starr sought referral jurisdiction over a Texas bankruptcy case. Attorney General Janet Reno granted Starr's request to expand his jurisdiction under 28 U.S.C. § 594(e). Because of this new Texas investigation, Starr was able to obtain indictments against Arkansas Governor Jim Guy Tucker, Tucker's attorney, and one of his business partners. They subsequently moved to quash the indictments on the grounds that the referral jurisdiction was not in Starr's original grant. The district court, citing Morrison, held that the referral under 28 U.S.C. § 594(e) had "no relation whatsoever" to the original grant of jurisdiction and dismissed the indictments. The Eighth Circuit, citing several sources for the proposition that the Attorney General's actions are non-reviewable, reversed and remanded. This decision essentially eviscerated the Morrison "demonstrably related" test by eliminating the requirement that the expansion of jurisdiction be related to the IC's original grant. Instead, it created an expansive jurisdiction for the IC, through referral jurisdiction and a broad reading of the original grant. "Considering the open-ended phrasing of § 594(e) and the expansive jurisdiction originally granted the [Office of the Independent Counsel], we believe that the association between original jurisdiction and the jurisdiction sought via referral need not be as intimate as the appellees suggest." The standard appellees "suggested" as a guide to the Eighth Circuit was the Supreme Court's "demonstrably related" test. The overbroad reading of an expanding jurisdictional grant creates the disturbing situation of a prosecutor with no bounds: The Tucker decision is unprecedented because it permits an IC to prosecute ordinary citizens for crimes that are not factually related to the reason for the IC's appointment--that is, to the alleged illegal activity of a high- ranking executive branch official. As such, it is contrary to both statutory authority and public policy. The fact that ICs can now turn their considerable attention on ordinary citizens evokes frightening thoughts of a prosecutor without any checks on his power over us all. The trend of upholding the IC's widening jurisdiction continued when the Special Division, citing Tucker with approval, granted IC Donald Smaltz jurisdiction over what it considered a "related" case, despite the Attorney General's objections. One former Associate Independent Counsel analyzed the Special Division's extension of jurisdiction: It is difficult to determine from the Special Division's discussion the precise procedural or factual connection between the matters originally conferred upon Mr. Smaltz and the matters sought to be investigated. It appears from the discussion, however, that neither the "precise factual matters" at issue nor the persons whose conduct is sought to be investigated were named in the original order. The implication this reader drew from the order is that the additional allegations concerned persons who worked closely with Secretary Espy at Agriculture and may have engaged in similar patterns of alleged misbehavior. Notably, however, there is no statement in the order that these persons are alleged to have conspired or acted in concert with Secretary Espy. There is also no explicit response to the [Department of Justice's] apparent argument that this referral is not necessary to advance the investigation of the principal matter referred. Nor does the order suggest that the persons at issue are "covered persons" within the meaning of the statute. Since the 1996 Espy case, the expansion of IC jurisdiction has accelerated. The ICs who are investigating former Secretaries Espy and Cisneros have both been accused of going well beyond the scope of their initial jurisdictional grants by investigating many "bit" players and spending an inordinate amount of time and money on petty charges in order to bolster the indictments. During IC Starr's four-year ongoing investigation, his jurisdiction has expanded from the initial charge to investigate a real estate deal in Arkansas to include the banking scandal in Texas (mentioned in the Tucker case), the suicide of White House lawyer Vincent Foster, the firing of White House travel office staff, and the possible mishandling of FBI personnel files. During the final drafting of this Note, IC Starr's investigational jurisdiction has expanded exponentially. President Clinton has been accused by Congressional Republicans of having an affair with a White House Intern, Monica Lewinsky. IC Starr has begun the investigation as to whether the President, or his advisor Vernon Jordan, obstructed justice by lying, or instructing Lewinsky to lie, about the alleged affair during a private civil sexual harassment suit brought against Clinton. Starr defends his expanding jurisdiction by pointing out that he has always applied to the Attorney General and the Special Division for any such grants. But in this latest expansion of jurisdiction, Starr began investigating the Lewinsky affair before applying for an extension from the Attorney General and the Special Division. Without the expanded jurisdiction, Starr began building a full-scale criminal case against Lewinsky in order to pressure her to reveal details of any relationship she may have had with Clinton. This has led to many criticisms of Starr. Many accuse him of investigating the man, rather than the crime. One former assistant U.S. Attorney commented on Starr's jurisdictional expansion tactics: "I think [Starr] pulled a fast one. He conducted an investigation he did not have the authority to conduct, then used that evidence to get the authority to conduct it." Former IC Walsh expressed the view that Starr has not only overstepped his jurisdiction, but also his proper function as an IC, by investigating claims that arise out of a private civil action and allegations of the President's private life. The IC's office has even recently been labeled by some as the "fourth branch of government." The results of this expansion of jurisdiction are disastrous. The Court's claim that the IC's "limited" jurisdiction is significant in his "inferior" status no longer appears reasonable. Rather, when viewed with the lack of checks on his power, it seems to create a "superior" status that even cabinet level officers cannot attain. Instead of being limited to possible crimes of "covered persons," the IC can now claim almost "unlimited jurisdiction and power to prosecute anyone whose path may have crossed that of the named subject of the investigation." Additionally, even those who are included as "covered persons" must now be wary of every action, no matter how private, being examined for any infraction, no matter how minor. One scholar noted that if the expansion of IC jurisdiction continues, "subjects of IC investigations can count upon the IC having the mandate, as well as the means and the incentive, to delve into private areas far afield from the original inquiry."

B. The Limited Tenure and Funding Arguments Fail

The Morrison Court's reasoning that the IC's limited tenure renders him an inferior officer has also been weakened by recent events. Since the Morrison holding, the tenures of the ICs have been anything but limited. IC Lawrence Walsh spent over seven years investigating the Iran-Contra affair. As of January 1998, several of the Clinton Administration investigations have been ongoing for over four years. The ICs are able to keep such lengthy investigations alive because of a virtually limitless budget. All told, the Iran-Contra affair averaged over $2.5 million per defendant, a ludicrous sum when compared to the U.S. Attorney's office average of $10,000 per defendant. The total sum of approximately $40 million was spent on the investigation of the Iran- Contra scandal. By March 1997, over $24 million already had been spent investigating the Clinton Administration. The sum topped $30 million by January 1998. These investigations have resulted in less than 25 total indictments. When compared to several of the largest U.S. Attorney's offices, with annual budgets of $39 million and filing approximately 8,000 criminal and civil cases per year, costs for the IC--in both time and money-- seem extreme. What does all this money go towards? An IC may employ as many prosecutors, investigators, and support personnel, and use as many other resources, as he or she wishes. An IC is the only prosecutor in the country who is by statute entitled to call upon all the vast resources of the federal government without providing any justification, without assuming responsibility for funding shortfalls, and without worrying about competing demands upon available resources. With an army of prosecutors at the IC's command and an unlimited tenure, it seems a charade to classify the IC as "inferior." When Terrence O'Donnell, a lawyer for the D.C. firm of Williams & Connolly, testified before the House Judiciary Committee, he explained that with the vast resources at his disposal, the IC has a natural incentive to justify that expense with some results, disregarding prosecutorial discretion in the process. This trend has continued.

A recent observation was made of Starr's investigation of the Lewinsky matter: "[I]f you can keep yourself in business for five years, you can find something to go after . . . ." The cynical might add that it is in the IC's best interest to prolong the investigation. As long as it continues, the IC will collect a good salary, and through the notoriety and prestige of his position, will steadily advance toward any future aspirations. Because of the IC's potentially infinite onslaught, the Court's argument that the IC is an inferior officer due to his limited tenure seems to be quite a stretch.

C. The Executive's Remaining Controls Over the IC Fail

As a final rationalization for the IC's inferior status, the Court pointed to the remaining constraints on the IC that the Attorney General retains under the Act--that of discretion whether to request the IC and that of "good cause" termination. Both constraints are lacking as true controls over the IC office. As discussed earlier, the "good cause" termination power amounts to little more than a toothless grant. Because of its political ramifications, it will most likely never be used by the Attorney General. Furthermore, the Attorney General's discretion to request an IC in the first place has recently been under attack.

During her tenure, Attorney General Reno has readily agreed to request the Special Division to appoint an IC to investigate various matters in the Clinton Administration. In fact, she is one of the first Attorney Generals to publicly support the Act. Yet, when she exercised her discretion under the Act and found no need for an IC investigation into alleged Democratic fundraising abuses--which were already under investigation by both the Department of Justice and Congress--Reno was publicly lambasted as kowtowing to the President. The pressures brought to bear on the Attorney General by the Congress, the press, and consequently, the public, make her discretionary decision difficult and the request for the IC almost impossible to refuse, regardless of the request's merits. When she is able to exercise her discretion, the political price of doing so is extreme and daunting. Attorney General Reno was publicly berated at many Congressional press conferences, and several Congressmen threatened her with either impeachment or contempt proceedings, all due to her exercise of discretion not to appoint an IC for the campaign finance investigations. Because of this, the Attorney General's discretionary approval has all but become a rubber stamp, except in the most extreme situations. Thus, as with the other reasons the Court utilized in concluding "inferior" status, current events have shown that the limited executive control that exists is a mere charade.

D. Policy Problems

Aside from the constitutional problems with the Act, there are several policy problems that have been clarified by recent events. The perceived independence of the IC has come under attack. It is ironic, yet inevitable, that the Act, which was written to salve the public perception of justice achieved at the highest levels, is now viewed as being invoked for partisan reasons. Increasingly, the IC himself has come under attack for lack of impartiality. As commentators have pointed out, regardless of the result the IC achieves in his investigation, he will inevitably be lauded by one party for impartiality, while lambasted by the other party for playing politics and for lack of judgment. A prime example of the partisan nature that the Act evokes is the Iran-Contra investigation by IC Walsh: "The Iran-Contra investigation proved the impossibility of taking a politically sensitive case 'above politics.' Here we had a special prosecutor of the president's own party, with a long history of moderation and professionalism, a respected and independent figure with a lifetime of achievement in law practice and public service. Surely, his conclusions would be respected by all. Hardly. When Judge Walsh began to conclude the president's men were crooks, he was vilified by the president's allies (spearheaded by the Wall Street Journal) as politically motivated and biased. Judge Walsh was predictably defended as impartial by Democrats, but he was no more able to escape imputations of bias than regular prosecutors would have been. Indeed, Judge Walsh became a political symbol." The irony is inescapable that the perceived importance of the statute designed to remove politics from the criminal process may actually intensify the politicization of investigations involving high-ranking officials. That politicization, in turn, may serve to defeat the very purpose of the statute, promoting public confidence in the fairness and reliability of the results of such investigations. More recently, IC Starr has come under attack for partisanship not only from the Clinton Administration and the Democratic Party, but also from the press. Starr was selected to replace regulatory IC Fiske when Congressional Republicans became unhappy that Fiske (also a Republican) determined that Vincent Foster's suicide was not related to Whitewater. How ironic that Starr, in his position because of the politicization of his predecessor, has become a political target. His outside work has not helped his image. Starr, a former judge with strong ties to the Republican Party and an outspoken critic of the Clinton Administration, has continued to make speeches at both Republican events as well as other conservative functions. Additionally, Starr has continued to represent private clients who have dealings with the Clinton Administration, such as the embattled tobacco industry, who would like nothing better than for the President to expend his energy defending himself rather than regulating and investigating the industry. Regardless of whether Starr is partial, the express policy goal of the Act is the appearance of propriety and avoidance of even the hint of conflicted interests. These recent events appear to run contrary to that goal. The Act's broad and indefinite reporting requirements have also opened up a Pandora's box of partisan accusations. Unlike most prosecutors, the IC is not bound by law to remain silent. Instead, he is asked to report to the public: If a prosecutor declines to prosecute but publicly describes, or worse, assesses, the evidence against a subject, he in effect unilaterally imposes a criminal stigma that will wreak havoc on the subject's reputation and career. The potential unfairness of the final report takes its most extreme form in cases in which an IC concludes that persons, not indicted or tried, violated the law or ethical requirements. One prime example is the Iran- Contra report, which, as the Special Division noted, repeatedly accuses named individuals of crimes, although in many instances the individual was never indicted, if indicted was never convicted, or if convicted the conviction was reversed. Though the reporting requirement was removed from the 1994 reauthorization of the Act, there is still room for the IC to place his conclusions out in the public forum and thus affect the political atmosphere. This public release of investigative information, along with the force of any conclusions made by the IC, deprives the executive officer under investigation of many rights guaranteed under the Constitution. Recently, the IC's staff has been accused of several "leaks" of information to the press, including testimony presented in front of the Grand Jury. Starr has also held numerous press conferences regarding his ongoing investigations. While the Act's unconstitutionality is one reason the Act is improper, a second reason is that the reality of the Act runs contrary to its two stated goals--assurance to the public that politics are removed from the investigation, and equal application of the law to executive officers. Instead of bolstering the public's confidence, the public views each successive IC investigation with greater suspicion that the whole process is simply partisan politics, with one party out to gain power at the expense of its rival. Second, instead of assuring that executive officers are subject to equal application of the law, the Act and IC process subjects them to a higher standard of scrutiny, examining every action for the slightest infraction.

VI. Conclusion: Allow the Act to Lapse in 1999; Return to the Use of Regulatory ICs

When the statute is up for renewal in 1999, Congress should allow the Act to lapse. This will return the investigative power to its constitutionally assigned place--the Executive Branch. Can the Department of Justice investigate high level executive officers without being swayed by the political power of those under investigation?

Certainly. All three branches have appropriately dealt with certain conflicts of interest as a matter of course. Regulatory ICs, who are appointed by the Attorney General and remain under the Executive Branch, have been the past solution. Their past successes provide an excellent record of proper prosecution as well as public faith in the investigation and final outcome: [A] modern example of successful use of a regulatory IC is Attorney General Griffin Bell's appointment of Paul J. Curran as "special counsel" to investigate the "Carter Peanut Warehouse Case." Congress itself acknowledged that "[o]nce Attorney General Bell granted Mr. Curran total independence and Mr. Curran issued a detailed report clearing President Carter and his brother Bill of all criminal wrongdoing, public confidence in the thoroughness of the investigation was restored." In addition to these regulatory IC successes, it is important to recognize the many proper prosecutions of high ranking government officials by Department of Justice attorneys: Spiro Agnew was brought down by Assistant U.S. Attorneys in Maryland. John Mitchell and Maurice Stans were indicted by regular DOJ employees in New York. It was one of Rudy Giuliani's assistants, not an "independent" prosecutor, who called sitting Attorney General Ed Meese, his own boss, a "sleaze" in a prosecution of one of Meese's closest friends. In Washington D.C., Eric H. Holder Jr. had promised his political affiliation would make no difference, and anyone would find it hard to argue that the Democratic U.S. Attorney had gone easy in seeking and securing a 17-count indictment against House Ways and Means Committee Chairman Dan Rostenkowski.

When compared with IC investigations, both Department of Justice investigations and regulatory IC investigations have been less politicized and more result-oriented. Any political pressures applied by those being investigated will be outweighed by the pressure applied by Congress, the press, and the public. Congress has and should continue to use its oversight, investigative, and impeachment powers as a check on the Executive Branch. The press will continue to use its increasing power to ferret out scandals and bring them to light. The public will exert the political pressure, and, as always, will act as the final check of a democracy. One must hope that Justice Scalia is incorrect in his skepticism of Congress and its ability to withstand the political consequences of allowing the "Ethics in Government Act" to lapse.

September 10, 1998

H. RES. 525

105th CONGRESS

2d Session

Providing for a deliberative review by the Committee on the Judiciary of a communication from an independent counsel, and for the release thereof, and for other purposes.

Mr. SOLOMON submitted the following resolution; which was referred to the Committee on Rules

RESOLUTION

Providing for a deliberative review by the Committee on the Judiciary of a communication from an independent counsel, and for the release thereof, and for other purposes.

Resolved, That the Committee on the Judiciary shall review the communication received on September 9, 1998, from an independent counsel pursuant to section 595(c) of title 28, United States Code, transmitting a determination that substantial and credible information received by the independent counsel in carrying out his responsibilities under chapter 40 of title 28, United States Code, may constitute grounds for an impeachment of the President of the United States, and related matters, to determine whether sufficient grounds exist to recommend to the House that an impeachment inquiry be commenced. Until otherwise ordered by the House, the review by the committee shall be governed by this resolution.

SEC. 2. The material transmitted to the House by the independent counsel shall be considered as referred to the committee. The portion of such material consisting of approximately 445 pages comprising an introduction, a narrative, and a statement of grounds, shall be printed as a document of the House. The balance of such material shall be deemed to have been received in executive session, but shall be released from the status on September 28, 1998, except as otherwise determined by the committee. Material so released shall immediately be submitted for printing as a document of the House.

February 24, 1999

Independent-Counsel Law Is Likely to Be Killed or Heavily Revised

By ALISON MITCHELL

WASHINGTON -- On the eve of Senate hearings into the statute authorizing independent counsels, the Watergate-era law looks well on its way to becoming a casualty of the impeachment battle, with senators of both parties predicting on Tuesday that it would be heavily revised or killed off entirely.

With sentiment against independent counsels growing in both parties, Sen. Fred Thompson, R-Tenn., the chairman of the Governmental Affairs Committee, said his committee would explore in hearings beginning on Wednesday whether there were ways to revise the Independent Counsel Act. But, he warned, "The burden is on those who want to keep it alive in its current form."

Also signaling the widespread dissatisfaction with the law under which Kenneth W. Starr conducted his investigation of President Clinton, Sen. Tom Daschle, D-S.D., the minority leader, said, "I intend to do what I can to see that it's terminated."

And an unlikely pair of senators -- Mitch McConnell, R-Ky., the chairman of the National Republican Senatorial Committee, and Christopher Dodd, D-Conn., a former general chairman of the Democratic National Committee -- said they would fight together to see the legislation expire when it comes up for renewal this summer.

"In 1978, with the noblest of intentions, both Republicans and Democrats embarked on a path of mutually ensured destruction by passing what could be called the ultimate law of unintended consequences," McConnell said. "In a perverse sort of way the independent counsel law has actually diminished the importance of ethics in government.

"With an independent counsel lurking behind every tree, the public is no longer alarmed when a public official is investigated."

Dodd, who had supported the statute in the past, said on Tuesday that it had "criminalized the political process to such a degree that it's no longer enough to defeat your opponents. If you can't indict them and also incarcerate them, then the campaign battle's not over."

Sen. Don Nickles, R-Okla., the majority whip, said that the law is "in trouble." He added, "It has to be reformed significantly or it won't be reauthorized, in my opinion."

Among the many proposed revisions are limits on who would be covered so that only the most senior government officials, like the president and vice president, could be investigated. Another possibility would be limiting investigations to actions that have taken place while an official was in office or seeking office. Other lawmakers would impose time limits and cost limits.

Whether such changes could stop the shift in sentiment against the law is not clear. McConnell said flatly on Tuesday that the law is "not salvageable" and hinted he and Dodd were prepared to lead a filibuster, if need be, to stop its reauthorization.

The law allowing the appointments of independent counsels was enacted in 1978 as a way to insulate investigations of wrongdoing by high government officials from political interference. It was spurred by the Watergate scandal when Richard Nixon ordered the dismissal of Archibald Cox, a special prosecutor who lacked any statutory protection.

The statute requires the attorney general to seek the appointment of an independent counsel when there is substantial and credible evidence of a crime by the president or a number of other senior government officials ranging from the vice president to cabinet members to senior White House staff members. A panel of three federal judges selects the counsel.

But some of the law's opponents say that it created a prosecutor free from any checks and balances, with Democrats pointing to Starr's five-year investigation of Clinton, which began with an Arkansas land deal but culminated in the Lewinsky matter.

The independent counsel has an unlimited budget and can go beyond the original mandate if the attorney general and the three-judge panel approve. The attorney general can remove the special counsel for cause, but Griffin Bell, a former attorney general under President Jimmy Carter, has written that "in the practical world, no special counsel will ever be removed by an attorney general."

There have been 20 independent counsels, and, according to a Congressional Research Service report issued last November, 13 of the investigations at that point had returned no indictments and the total cost of all 20 independent counsel investigations was approximately $148.5 million.

For years, Republicans were the sharpest critics of the law, particularly in the aftermath of Lawrence Walsh's seven-year investigation into whether the Reagan administration illegally diverted funds from weapons sales to Iran to support the contra rebels in Nicaragua. McConnell, who defended Starr for doing a "good job with a bad law," reminded reporters on Tuesday that Walsh had indicted Caspar Weinberger, the former defense secretary, on the eve of the 1992 election. The indictment was seen by Republicans as blatantly political.

The controversy prompted Congress to let the law lapse for 18 months during the early 1990's. Clinton won its renewal in 1994.

Republicans have also become disenchanted with Ms. Reno's refusal to seek an independent counsel to investigate the campaign finance practices of the 1996 Clinton re-election campaign.

"Some people are concerned that it's too readily used," said Thompson, who was a former counsel on the Senate Watergate Committee. "Others are concerned it's not used in the most appropriate cases."

In the aftermath of Starr's investigation of Clinton and the impeachment trial, Democrats too are now coming out in opposition to the law.

"The independent counsel law is going to die," predicted Sen. Byron Dorgan, D-N.D. "There's a history of a good many years of independent counsels who have been unaccountable both for time and expenditures. I regret I voted for authorizing it previously."

Sen. Joseph Lieberman, D-Conn., the ranking Democrat on the governmental Affairs Committee, was left pleading on Tuesday that the debate not turn into a referendum on Starr. "These hearings begin at a time of acute public cynicism toward government," he said, "and a real concern about a growing coarseness in our public life. I for one don't think that anything will be gained, at this time in particular, in abandoning this law." But he added, "Surgery to the statute is probably in order."

The committee will hold at least four hearings in the next few weeks and the House is to begin its own hearings next Tuesday. The first witnesses on Wednesday are to be Bell and Howard Baker, a former Senate majority leader. The pair, leaders of a bipartisan commission on the Independent Counsel Act, reported in December that it was time to let the legislation expire.