Justia Federal District Court Opinions

Three former government officials, Theodore B. Olson, previously Assistant Attorney General, Office of Legal Counsel, Carol E. Dinkins, previously Assistant Attorney General, Lands Division,¹ and Edward C. Schmults, previously Deputy Attorney General of the United States, appeal from a district court judgment rejecting their challenge to the authority of a federal prosecutor, the independent counsel, appointed under the provisions of the Ethics in Government Act of 1978, 28 U.S.C. Secs. 49, 591-598 (1982 & Supp. III) (the "Act"), to issue subpoenas compelling the testimony of these appellants before a grand jury concerning actions taken while they served in their governmental positions.² Appellants contend that the Act on which the independent counsel's authority is based is unconstitutional. We agree with appellants, and so we reverse the district court order holding appellants in contempt for failing to answer the subpoenas.

The criminal investigation involved in this case arose out of a heated dispute over document production between the Executive and Legislative Branches. In September 1982, two subcommittees of the House of Representatives requested the Environmental Protection Agency ("EPA") to provide them with internal EPA documents pertaining to the clean-up of hazardous waste sites. The House was concerned that the Reagan administration was expending funds so as to aid Republican candidates in the 1982 Senate elections. At the direction of the Department of Justice, the EPA made some documents available but refused to grant access to enforcement-sensitive documents on the grounds that their release would interfere with law enforcement efforts. After negotiations between the two branches failed, the two subcommittees issued subpoenas to the Administrator of the EPA. The Administrator, invoking executive privilege by order of the President, refused to comply with the subpoenas. The House of Representatives responded by citing the Administrator for contempt, at which point the Administrator and the United States together filed a lawsuit against the House. Eventually, by March of 1983, the Administrator and the two subcommittees reached agreement on document production.

Ancillary to this running battle between Congress and the Executive, a subcommittee of the House Judiciary Committee began an investigation into the Justice Department's role in the EPA document controversy. On March 10, 1983, as part of that investigation, the subcommittee heard testimony from Assistant Attorney General Olson. At the completion of the investigation, the Judiciary Committee issued a lengthy report, over the vigorous dissent of the Republican members of the Committee, containing charges of serious wrongdoing by senior Department of Justice officials. REPORT ON INVESTIGATION OF THE ROLE OF THE DEPARTMENT OF JUSTICE IN THE WITHHOLDING OF ENVIRONMENTAL PROTECTION AGENCY DOCUMENTS FROM CONGRESS IN 1982-83, H.R.REP. NO. 435, 99th Cong., 1st Sess. (1985).

Based on this report, in December 1985 the Judiciary Committee requested the Attorney General to conduct a preliminary investigation, as required by the independent counsel provisions of the Ethics in Government Act, into possible violations of federal law on the part of several administration officials who appeared before the Judiciary Committee, including former Assistant Attorney General Olson. The Act applies to the President and Vice President, the Director and Deputy Director of the Central Intelligence Agency, cabinet-level officials, various other officials in the Department of Justice and in the Executive Office of the President, and high level officials on the President's campaign committee. 28 U.S.C. Sec. 591.

Under the Act, the Attorney General must begin an investigation, to be completed within ninety days, if he finds the information of wrongdoing given him "sufficient to constitute grounds to investigate." 28 U.S.C. Sec. 592. During this preliminary investigation, the Attorney General's investigative resources are severely limited; he has "no authority to convene grand juries, plea bargain, grant immunity, or issue subpoenas." Id. If the Attorney General "finds reasonable grounds to believe that further investigation is warranted," then he must refer the matter to the Independent Counsel Division of the United States Court of Appeals for the District of Columbia Circuit (the "Special Court").³ Thus, at this initial investigatory stage, the Attorney General's role is quite restricted--he is directed to decide not if prosecution is probably warranted but merely whether more investigation is needed, and in making this limited determination he is denied the usual truth-finding tools of a prosecutor.

On April 10, 1986 the Attorney General asked the Special Court to appoint an independent counsel to investigate

[w]hether the conduct of former Assistant Attorney General Theodore Olson in giving testimony at a hearing of the Subcommittee on Monopolies and Commercial Law of the House Judiciary Committee on March 10, 1983, and later revising that testimony, regarding the completeness of the Office of Legal Counsel's response to the Judiciary Committee's request for OLC documents, and regarding his knowledge of EPA's willingness to turn over certain disputed documents to Congress, violated 18 U.S.C. Sec. 1505, Sec. 1001, or any other provision of federal criminal law.

Report of the Attorney General Pursuant to 28 U.S.C. Sec. 592(c) (1) Regarding Allegations Against Department of Justice Officials in United States House Judiciary Committee Report ("Report of Attorney General") at 2-3 (footnote omitted). The Attorney General also requested that the independent counsel have authority to investigate "any other matter related to that allegation." Id. at 11.

The Judiciary Committee's request for an investigation also pointed to possible wrongdoing by Edward Schmults and Carol Dinkins. The Attorney General concluded, however, that there were no reasonable grounds to believe that further investigation of these allegations was warranted and so did not refer these matters to the independent counsel. Id. at 22, 47-48. In deciding whether to refer a matter to the independent counsel, the Attorney General is required by Sec. 592(c)(1) of the Act to "comply with the written or other established policies of the Department of Justice with respect to the enforcement of criminal laws." The decision concerning Schmults and Dinkins was made in accordance with a Department of Justice policy that criminal prosecutions not be commenced "if there is no reasonable prospect that an unbiased jury would return a criminal conviction." Report of the Attorney General at 26.

In April of 1986 the Special Court appointed James McKay as independent counsel. Shortly thereafter, upon McKay's resignation, the Special Court appointed Alexia Morrison to replace him. In November 1986 Morrison applied to the Attorney General, pursuant to 28 U.S.C. Sec. 594(e),⁴ for expanded jurisdiction to probe charges against Edward Schmults and Carol Dinkins. In particular, the independent counsel wished to investigate "whether Mr. Olson's testimony was part of a larger, concerted plan, including Mr. Schmults, Ms. Dinkins, or others, to obstruct or impede the Committee's investigation ... possibly in violation of federal criminal law." Letter from Alexia Morrison to Edwin Meese III at 3 (Nov. 14, 1986). The Attorney General refused this request because his initial investigation of the Judiciary Committee's allegations had "found no reasonable grounds to believe that further investigation or prosecution of these allegations is warranted." Letter from Arnold I. Burns, Deputy Attorney General, to Alexia Morrison at 2 (Dec. 17, 1986). The letter of refusal specifically mentioned that the allegations of a criminal conspiracy among Schmults, Dinkins, and Olson had been investigated and that no reasonable grounds for continuing that investigation had been found. Id.

Faced with the Attorney General's refusal to broaden her authority, the independent counsel applied to the Special Court, pursuant to 28 U.S.C. Sec. 594(e), for added jurisdiction to investigate Schmults and Dinkins. The Special Court denied this request, on grounds that it lacked the authority "to refer allegations to the Independent Counsel when the Attorney General has specifically determined, under Sec. 592(b)(1) that those allegations should not be pursued." In re Olson, 818 F.2d 34, 47 (D.C.Cir.Indep.Couns.Div.1987). However, the Special Court found that "authority to investigate allegations and evidence that Theodore Olson was engaged in an unlawful conspiracy with others" was "implicit" in the Special Court's initial grant of jurisdiction to the independent counsel. Id. Therefore, the Special Court held that the independent counsel had the power to investigate " 'whether Mr. Olson's testimony was part of a larger, concerted plan, including Mr. Schmults, Ms. Dinkins, or others, to obstruct or impede the Committee's investigation.' " Id. at 48 (quoting letter from Alexia Morrison to Edwin Meese III at 3 (Nov. 14, 1986).⁵

Soon after the release of the Special Court's opinion, the independent counsel subpoenaed Edward Schmults, Theodore Olson, and Carol Dinkins to appear before a grand jury. The three appellants moved to quash the subpoenas on grounds that the independent counsel provisions of the Act were unconstitutional. On July 20, the district court upheld the constitutionality of the independent counsel provisions. In re Sealed Case, No. 87-0197 (D.D.C.1987) (mem). In order to pursue their challenge to the Act on appeal, the appellants refused to appear before the grand jury and were held in contempt pursuant to 28 U.S.C. Sec. 1826(a). Appellants renew their challenge to the constitutionality of the Act on appeal of the order holding them in contempt.⁶

The appellants contend that the Act's appointment provision, its restriction on removal, and its vesting of supervisory powers in an Article III court are unconstitutional. They argue that placing the appointment of the independent counsel in the Special Court violates the appointments clause, the doctrine of separation of powers, and Article III of the Constitution. And they claim that restrictions on the President's power to supervise and remove the independent counsel interfere with the President's ability to execute the law. More broadly, appellants assert that the Act as a whole jettisons traditional adherence to constitutional doctrines of separation of powers and a unitary executive, and in so doing, seriously weakens constitutional structures that serve to protect individual liberty. For the reasons set forth below, we agree with appellants that the Act is unconstitutional.

Two hundred years after the adoption of the United States Constitution the federal courts are, essentially for the first time, required to construe closely the appointments clause of Article II. Appellants claim that the independent counsel is not an "inferior" officer as that term is used in the clause and therefore she may be appointed only through nomination by the President and confirmation by the Senate. Since all parties agree that the independent counsel is an officer of the United States and not an employee, her appointment by the Special Division of this court would, if appellants are correct in their interpretation of the clause, be unconstitutional.

The appointments clause provides that the President

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: 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.

U.S.CONST. art. II, Sec. 2, cl. 2.

Two classes of officers of the United States are contemplated by the clause, those who must be appointed by the President with the advice and consent of the Senate, whom we shall refer to as principal officers, and inferior officers, who, if authorized by legislation, can be appointed by heads of departments, courts of law, or the President alone. The independent counsel, supported by various amici, contends that the only officers who must be appointed with the advice and consent of the Senate and not otherwise are Supreme Court Judges, ambassadors, other public ministers, and consuls. All other officers of the United States, they argue, including department heads and federal judges, are inferior officers who could, if legislation authorized it, be appointed in accordance with the second part of the clause.

We think that this is an unnatural reading of the clause, for the first part of the clause insists that not only Judges and Ambassadors must be appointed with the advice and consent of the Senate, but also all other officers of the United States "whose Appointments are not herein otherwise provided for." "Herein" must refer to at least the clause itself and thus perforce includes inferior officers who may be appointed in accordance with the second portion of the clause.⁷ It follows that the term "all other Officers of the United States" encompasses more than the inferior officers described in the second part of the clause because that part is phrased as an exception to the "all other Officers" language. Otherwise--under the independent counsel's interpretation--"all other Officers" are, each and every one, inferior officers and thus the phrase requiring presidential appointment with the advice and consent of the Senate for "all other Officers" not "otherwise provided for" is utterly without meaning. Among the officers who must be appointed by the President with the advice and consent of the Senate it seems most obvious to include the heads of departments and federal judges since they are specifically empowered (along with the President to whom they are linked in the clause) to appoint inferior officers. In fact, as we discuss further in Part III, the purpose of the excepting clause was to ensure that courts of law and heads of departments could appoint officers inferior to them; it was certainly not meant to allow the appointment of department heads without the advice and consent of the Senate.⁸

A single clause of the Constitution should not be interpreted inconsistently with the remainder of the Constitution. Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 332, 84 S.Ct. 1293, 1298, 12 L.Ed.2d 350 (1964). Central to the government instituted by the Constitution are the doctrines of separation of powers and a unitary executive, which we discuss at length in Part III, and yet the independent counsel interprets the appointments clause as if those doctrines were nonexistent. Understanding that the President could not fulfill his constitutional role by himself, the Framers envisioned that the Executive Branch would be divided into departments whose officers would be appointed by the President and who could be removed by Congress only through the impeachment process. See Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). It strains belief that in the face of this scheme the Framers would insert a clause into the Constitution that would allow Congress, the branch most feared by the Framers, see THE FEDERALIST NO. 48 (J. Madison); see also Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 3189, 92 L.Ed.2d 583 (1986), to abrogate the President's power to appoint Executive Branch officers.

Not only does the independent counsel's interpretation seem inconsistent with the language of the clause and the remainder of the Constitution, it makes, to our view, no functional sense. "The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics," Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 686, 46 L.Ed.2d 659 (1976), and therefore would not have drafted an appointments clause that had a capricious meaning. Yet appellee's suggested interpretation has, we are forced to conclude, just that capricious character. If department heads and federal judges (other than Supreme Court Justices) are inferior officers, then it presumably follows that any one department head could be authorized, consistent with the Constitution, to appoint all of the rest and all the federal judges to boot.⁹ And of course, a federal court could instead be given the reciprocal power to appoint all department heads and all the rest of the federal judges. To be sure, it would not have been illogical for the Framers to leave to subsequent legislation all procedures for appointment of officers or to limit those appointments only by the second portion of the appointments clause (requiring appointment by the President, courts of law, or department heads). But having specially provided that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... all other Officers of the United States, whose Appointments are not herein otherwise provided for," it is implausible to suggest that the Framers intended that no officers, even heads of departments, had to be appointed in this fashion. In fact, the statutes enacted by the First Congress creating the various executive departments are silent regarding the mode of appointment of the principal officers of those departments, thereby suggesting that the legislators believed that they had no choice in the matter because they understood the Constitution to require that principal officers be appointed by the President with the advice and consent of the Senate and therefore it was not necessary to provide for appointment in the statute itself.¹⁰

The independent counsel's reading is particularly incongruous because the first part of the clause requires that senior diplomats be appointed by and with the consent of the Senate. The Framers certainly expected that the new government would be organized into departments, and the most obvious prospective department in their minds (in fact the first one created), must have been the Department of Foreign Affairs.¹¹ The Framers could not have been more concerned that the Senate be a check on a presidential appointment of an ambassador, or a consul, than that it be a check on the appointment of the Secretary of the Department of Foreign Affairs, to whom, in all likelihood, the ambassadors or consuls would report.¹² Through a procedure requiring the participation of the President and the Senate, the Framers had as their object the creation of a role for both branches in choosing officers who were to be entrusted with discretion in carrying out the execution of the laws. Appellee's suggestion that this object extended only to ambassadors, public ministers, consuls, and Judges of the Supreme Court is quite unpersuasive.

Even though the Framers surely contemplated that ambassadors and consuls would be subordinate to the head of the Department of Foreign Affairs, we can readily understand why these officers nevertheless were thought of as principal rather than inferior. In the eighteenth century, a minister posted abroad had to exercise a good deal of independent judgment--certainly more than is the case today--simply because communications were so much slower than now.¹³ Similarly, lower federal judges who, according to our reading of the clause, are principal officers, although of course subordinate in a sense to the Supreme Court, are not subject to personal supervision. The Supreme Court, in the exercise of its power to affirm, reverse, or modify, supervises cases--not judges who, appointed for life, are in a supervisory sense not inferior to anyone.¹⁴

The only judicial support the independent counsel musters for her construction of the appointments clause is United States v. Germaine, 99 U.S. (9 Otto) 508, 25 L.Ed. 482 (1878). In that case, the Supreme Court held that a part-time surgeon appointed by the Commissioner of Pensions was not an officer of the United States because, inter alia, the Commissioner of Pensions was not a department head. In preliminary discussion, the Court described inferior officers as inferior to those "specially mentioned" in the appointments clause, id. 99 U.S. at 510, and the independent counsel asserts that the only officers "specially mentioned" are Judges of the Supreme Court, ambassadors, etc. We disagree. There is no reason to infer that by "specially mentioned," the Court meant to exclude the officers "specially mentioned" in the second part of the clause, i.e., the President, federal judges, and department heads. See E. CORWIN, THE PRESIDENT, 411-12 n. 28 (5th rev. ed. 1984) (" '[T]he President alone,' 'the courts of law,' and 'the heads of departments' are also 'specially mentioned.' "). Indeed, in concluding that "inferior" commissioners and bureau chiefs were not department heads authorized by the Constitution to appoint inferior officers, the Court described them as "mere aids and subordinates of the heads of the departments," Germaine, 99 U.S. at 511, thus recognizing that the word "inferior" in the appointments clause has a functional rather than a merely ceremonial meaning. See also Collins v. United States, 14 Ct. Cl. 568, 574 (1879):

The word inferior is not here used in that vague, indefinite, and quite inaccurate sense which has been suggested--the sense of petty or unimportant; but it means subordinate or inferior to those officers in whom respectively the power of appointment may be vested--the President, the courts of law, and the heads of departments.

Moreover, the Court in Germaine included department heads among the principal officers of whom the President, in the same section of the Constitution, is authorized to require an opinion in writing. Since the Court regarded the department heads as principal officers, it could not have meant department heads to be regarded at the same time as inferior officers within the meaning of the appointments clause.

We therefore reject the independent counsel's construction of the appointments clause, but we are still confronted with the question whether the independent counsel is an inferior officer--for under the clause, only if she is an inferior officer can she be appointed without action by the President and without the advice and consent of the Senate. The answer to that question depends, it seems to us, given the functional interpretation of the clause suggested by the Supreme Court in Germaine, on whether the independent counsel properly can be thought subordinate to a principal officer. Is she in the exercise of her duties, in other words, a "mere aid[ ] and subordinate of the head of [a] department[ ]" or does she instead employ such independence of authority as to place her on the principal officer side of the appointments clause dichotomy?

The independent counsel relies almost entirely on her basic construction of the clause and only briefly makes what could be construed as the alternative argument that even under our reading of the clause she is nonetheless an inferior officer. She contends that since the Attorney General can appoint, and has appointed, independent counsel with precisely the authority and duties that she enjoys by virtue of her court appointment and because such authority has been sustained by this court, In re Sealed Case, 829 F.2d 50 (D.C.Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 753, 98 L.Ed.2d 765 (1988), she must be an inferior officer.¹⁵ This is so because the Attorney General may constitutionally appoint only inferior officers, and, according to the independent counsel, the constitutional status of an officer cannot change merely because she is appointed by a special division of a court rather than the Attorney General. The independent counsel, however, ignores the factor in our prior opinion that was decisive to our determination that the independent counsel was "inferior." His powers were conferred by regulation promulgated by the Attorney General and could be terminated by repeal of that regulation. Not only had the Attorney General appointed the independent counsel, he could, by revoking or modifying the regulation "at any time," id. at 56, have modified the independent counsel's duties or terminated the office.¹⁶ Under such circumstances the independent counsel was, as were prior "independent" special prosecutors appointed by the Attorney General, clearly an inferior officer.¹⁷

But that is not this case--this independent counsel has refused to accept the Attorney General's appointment. She cannot now base an argument for constitutional inferiority on the Attorney General's appointment power that she has explicitly rejected. Nor, in our view, can she predicate the Attorney General's superior status, as she suggests, on the Attorney General's statutory removal power which she describes as "exclusive." As we discuss later in our opinion, the Attorney General has essentially only the authority to petition the Special Court to authorize the removal of an independent counsel. The Attorney General therefore cannot be thought of as the independent counsel's constitutional superior. Under the statute, the Attorney General has the effective power neither to appoint her, to define, circumscribe, or supervise her duties, nor to remove her or terminate her office. We need not consider whether the Special Court, which has a good deal more authority under the statute vis-a-vis the independent counsel, is her constitutional superior since neither the independent counsel nor for that matter any amicus contends that the court fulfills that role.¹⁸

The independent counsel does, however, at least suggest that one can be an inferior officer within the meaning of the appointments clause without having any hierarchical superior. In Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. 717 (1880), upon which the independent counsel relies for this proposition, the Supreme Court upheld the constitutionality of a statute giving the courts of law the responsibility for appointing election commissioners. Id., 100 U.S. at 379-82. The statute itself did not specify, as the independent counsel correctly maintains, who, if anyone, was the constitutional superior of the commissioners. That issue, however, was not discussed in the Court's opinion because it was not contended that the commissioners were principal officers. In truth, the duties of those election commissioners were relatively modest; they were charged with the observation of federal congressional elections and the reporting of improprieties to Congress--which, of course, has the constitutional responsibility to "[j]udge ... the Elections, Returns and Qualifications of its own Members." U.S.CONST. art. I, Sec. 5, cl. 1.

As the Court observed, the commissioners were not clearly within any of the three branches (which is in large part why the Court held their appointment by a court constitutional, see discussion infra pp. 493-94). They were certainly not, as is the independent counsel, an indisputable part of the Executive Branch. The commissioners seem to us actually to have been subordinates of Congress, but, in any event, since the issue was not even presented, the Court's opinion is hardly authority for the independent counsel's proposition. The Supreme Court has not, moreover, had any occasion to decide whether members of independent regulatory agencies or commissions who are also not clearly within any of the three branches, are principal or inferior officers. In Buckley v. Valeo, 424 U.S. 1, 126, 96 S.Ct. 612, 685, 46 L.Ed.2d 659 (1976), the Court described the election commissioners involved in that case, who exercised a good deal more authority than the commissioners in Siebold, as "at the very least ... inferior officers" (emphasis added), thus suggesting that they might be principal officers. It is unnecessary, however, for us to decide this more difficult question the Supreme Court reserved in Buckley v. Valeo. Whatever the status of commissioners or members of independent agencies, we think the independent counsel's authority is so broad as to compel the conclusion that she is a principal officer and therefore her appointment by the Special Court is unconstitutional. After all, the independent counsel's authority is--at least with respect to any matter within her jurisdiction--broader even than the Attorney General's. As has been argued in this case and previous ones before our court challenging the constitutionality of the statute, see In re Sealed Case, 829 F.2d 50 (D.C.Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 753, 98 L.Ed.2d 765 (1988), the independent counsel has authority unchecked by the President himself to decide that an investigation shall continue and that a prosecution shall be initiated. She must give only that consideration that she deems appropriate to all those factors relevant to prosecution--including the foreign relations of the United States--that we discuss in Part IV.

In its opinion upholding the constitutionality of the independent counsel statute, the district court determined that the independent counsel was an inferior officer because " 'he is appointed for a single task to serve for a temporary limited period.' " In re Sealed Case, 665 F.Supp. 56, 58 (D.D.C.1987) (quoting In re Olson, 818 F.2d 34, 44 (D.C.Cir.Indep.Couns.Div.1987)). The district court relied upon United States v. Eaton, 169 U.S. 331, 343, 18 S.Ct. 374, 379, 42 L.Ed. 767 (1898), in which the Supreme Court stated that "[b]ecause the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official." In Eaton, the Supreme Court considered whether Congress had the "power to vest in the President [alone] the appointment of a subordinate officer called a vice-consul" who would temporarily carry out the duties of a consul. Id. The Court upheld this mode of appointment, because a contrary ruling would have voided any delegation of the duties of a superior officer to an inferior, no matter how minor or temporary the delegation might be. Id. Unlike the statute considered in Eaton, the Ethics in Government Act does not temporarily delegate the Attorney General's authority to investigate and prosecute criminal wrongdoing by high government officials to an inferior official. Instead, the Act removes that authority from the Attorney General altogether and places it entirely in the independent counsel. See 28 U.S.C. Sec. 597. The independent counsel's authority over the investigation is not temporary; it is coterminous with the investigation itself. Hence, the independent counsel is not analogous to an inferior officer who temporarily carries out the tasks of a superior while the superior is absent or disabled.

That the independent counsel's appointment expires when her task is completed seems to us irrelevant. Ambassadors are often appointed in accordance with the appointments clause for discrete negotiations and the Framers, experienced as they were with foreign affairs, contemplated just that eventuality.¹⁹ This independent counsel, moreover, not unlike others, has served for almost two years, which is as long as many cabinet officers. Of course a given department remains in existence after the cabinet officer resigns, but in the same sense the independent counsel role seems constitutionally more substantial than any one incumbent; a number have been appointed under the statute and there are several in operation at the present. We think that the appointments clause necessarily comprehends, in distinguishing principal from inferior officers, the depth and breadth of the authority exercised, not merely the contemplated tenure of the job. The magnitude of the task, not its expected period of performance, is constitutionally determinative.

Although it could well be argued that independent counsel, who often supervise more employees than cabinet departments once employed, are themselves "heads of departments," it is also unnecessary for us to determine the reach of that phrase. Suffice it for the case for us to hold as we do that the independent counsel is not an inferior officer and thus falls at minimum within that category of the appointments clause of "all other Officers of the United States, whose Appointments are not herein otherwise provided for." As such, her appointment is constitutionally invalid.²⁰

The Act's failure to comply with the appointments clause is sufficient to render it unconstitutional. We decide appellants' other constitutional claims, however, so that if this decision is appealed, and the Supreme Court decides that these additional claims must be reached, it will not have to "either proceed without the usual benefit of a lower-court opinion or else delay final disposition by remanding for that purpose." Synar v. United States, 626 F.Supp. 1374, 1383 (D.D.C.), aff'd, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). The appellants claim, and we agree, that even if the independent counsel were an inferior officer, and so did not have to be appointed by the President with the advice and consent of the Senate, the Act would violate the Constitution because it impermissibly interferes with the President's constitutional duty to "take Care that the Laws be faithfully executed." U.S.CONST. art. II, Sec. 3.

Authority to prosecute an individual is that government power which most threatens personal liberty, for a prosecutor "has the power to employ the full machinery of the state in scrutinizing any given individual. Even if a defendant is ultimately acquitted, forced immersion in criminal investigation and adjudication is a wrenching disruption of everyday life." Young v. United States ex rel. Vuitton et Fils S.A., --- U.S. ----, 107 S.Ct. 2124, 2141, 95 L.Ed.2d 740 (1987). The Framers of the Constitution were justly fearful of this power. They had recently witnessed the crime of sedition used as a tool of an oppressive government to retain power unjustly and to persecute its enemies, and English experience with the Star Chamber further shaped their views on criminal law and criminal process. See Ullmann v. United States, 350 U.S. 422, 427-28, 76 S.Ct. 497, 500-01, 100 L.Ed. 511 (1956). Counsel for one appellant captured this point pungently at oral argument when he said that our forefathers "understood prison very well and they understood the monarch and the power of an unaccountable monarch to put people in prison."

The Constitution therefore carefully distributes the various responsibilities for criminal prosecution among each of the three branches, so that citizens may not be endangered by one branch acting alone. Madison referred to the doctrine of separation of powers as an "essential precaution in favor of liberty," THE FEDERALIST NO. 47, at 323 (J. Cooke ed. 1961), and it is part of "our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government." United States v. United States District Court, 407 U.S. 297, 317, 92 S.Ct. 2125, 2137, 32 L.Ed.2d 752 (1972). Federal criminal law can be enacted only by Congress. This innovation marks a major shift from prior practice, which countenanced a common law of crime created by the same judges who tried the cases. United States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812). Congress' role in the criminal law was carefully confined to this initial stage of law creation. Congress is, accordingly, explicitly forbidden to pass bills of attainder, one of the few positive prohibitions on congressional power contained in Article I. See United States v. Brown, 381 U.S. 437, 442, 85 S.Ct. 1707, 1711-12, 14 L.Ed.2d 484 (1965) ("the Bill of Attainder Clause was intended not as a narrow, technical ... prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply--trial by legislature"). And the power of Congress to impeach officers of the United States is also limited--the penalty "shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." U.S. CONST. art. I, Sec. 3, cl. 7. Even through impeachment then, Congress is powerless to deprive any individual of liberty.

Next the Constitution vests the power to initiate a criminal prosecution exclusively in the Executive Branch; this power is encompassed within the Executive's power to "take Care that the Laws be faithfully executed." The Executive has "exclusive authority and absolute discretion to decide whether to prosecute a case." United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974); United States v. Cox, 342 F.2d 167, 171 (5th Cir.) (en banc), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). "The power to decide when to investigate, and when to prosecute, lies at the core of the Executive's duty to see to the faithful execution of the laws[.]" Community for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C.Cir.1986).²¹

The Framers provided for a unitary executive to ensure that the branch wielding the power to enforce the law would be accountable to the people. "The idea of a 'plural executive,' or a President with a council of state, was considered and rejected by the Constitutional Convention. Instead the Founders chose to risk the potential for tyranny inherent in placing power in one person, in order to gain the advantages of accountability fixed on a single source." Sierra Club v. Costle, 657 F.2d 298, 405 (D.C.Cir.1981) (footnote omitted).²² Under the Constitution, the President, as the head of the Executive Branch, is the person ultimately responsible for a decision to initiate a criminal prosecution. See Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 1656, 84 L.Ed.2d 714 (1985); United States v. Cox, 342 F.2d at 171. If that decision is contrary to the mores and customs of the community, the community has a visible target for its grievances. No anonymous directorates hold sway here, no impenetrable bureaucracies or commissions obscure the identity of the responsible official; the chain of command leads directly upward to the President. As Hamilton wrote, "it is far more safe there should be a single object for the jealousy and watchfulness of the people; and in a word that all multiplication of the executive is rather dangerous than friendly to liberty." THE FEDERALIST NO. 70, at 479 (J. Cooke ed. 1961); see also Myers v. United States, 272 U.S. 52, 131-34, 47 S.Ct. 21, 30-31, 71 L.Ed. 160 (1926). Not merely an abstract idea of political theory, the President's accountability is a hallmark of our democracy--perhaps best put in President Truman's gritty aphorism "The buck stops here." For no federal government function is it more vital to the protection of individual liberty that ultimately the buck stop with an accountable official--the President--than in the prosecution of criminal laws.

That the government prove its case in a jury trial before a neutral and disinterested court, insulated with extraordinary tenure protection from the other two branches of government and shielded from popular pressure, is the final safeguard contained in the original Constitution upon the federal government's power to prosecute the criminal laws. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 3256, 92 L.Ed.2d 675 (1986). The constitutional scheme is as simple as it is complete--Congress passes the criminal law in the first instance, the President enforces the law, and individual cases are tried before a neutral judiciary involved in neither the creation nor the execution of that law. See Young v. United States ex rel. Vuitton et Fils S.A., --- U.S. ----, 107 S.Ct. 2124, 2133-34 & n. 10, 95 L.Ed.2d 740 (1987). The Ethics in Government Act, it seems to us, deliberately departs from this framework in both its particular provisions and in its general purpose, which is to authorize an officer not accountable to any elected official to prosecute crimes. It may well be that the constitutional framework is awkward or burdensome in particular cases, but, under this system, efficiency is knowingly sacrificed in various ways so that liberty may be protected. Therefore, a law whose purpose is to ensure a more efficient or more trustworthy means for the state to prosecute crime than that contemplated by the Constitution comes into this court with a heavy burden. See Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 3193-94, 92 L.Ed.2d 583 (1986). We begin by discussing the appointment, removal, and supervisory provisions of the Act separately. Each of these interferes with the President's performance of his duty to execute the laws. We then consider the combined impact of all of these sections of the statute on the President's constitutionally guaranteed executive powers.

The Act directs that the independent counsel be appointed not by the President, nor by the Attorney General, but rather by a court of law. Even if we assume arguendo that the independent counsel is an inferior officer, her appointment appears quite inconsistent with the Constitution's placement of the executive power in the President. A statute that vests the appointment of an officer who prosecutes the criminal law in some branch other than the executive obstructs the President's ability to execute the law--a duty the President can practically carry out only through appointed officials. See THE FEDERALIST Nos. 70, 76, 77 (A. Hamilton). The concept of a responsible and accountable unitary executive would mean very little without the power to appoint, for the President's capacity to enforce the law is largely dependent upon the identity and caliber of the officers who compose the Executive Branch, and if the President is without the power to appoint, he cannot define the character of his administration. In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court declared unconstitutional a statute that allowed Congress to appoint members of the Federal Election Commission on grounds that congressional appointment of executive officers violated the appointments clause. The Court determined that the Commissioners exercised executive power because they had, among other powers, the power to bring civil actions against violators of the election laws. Id. at 138-40, 96 S.Ct. at 691-92.

The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates.... As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws.

....

... Article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers--a conclusion confirmed by his obligation to take care that the laws be faithfully executed....

Id. at 135-36, 96 S.Ct. at 690 (quoting Myers v. United States, 272 U.S. 52, 117, 163-64 47 S.Ct. 21, 25, 41, 71 L.Ed. 160 (1926)). Indeed, even when the Supreme Court has upheld restrictions on the President's power to remove officers of the Executive Branch who performed "predominantly quasi-judicial and quasi-legislative" rather than executive duties, see, e.g., Humphrey's Executor v. United States, 295 U.S. 602, 624, 55 S.Ct. 869, 872, 79 L.Ed. 1611 (1935), the Court "carefully emphasized that although the members of such agencies were to be independent of the Executive in their day-to-day operations, the Executive was not excluded from selecting them." Buckley, 424 U.S. at 133, 96 S.Ct. at 689 (citation omitted).

The independent counsel nevertheless defends her appointment with the proposition that the "plain language" of the appointments clause allows Congress to vest the appointment of inferior officers, including the independent counsel, in a court of law, or in more general terms, that the appointments clause should be read to allow officers in one branch to appoint officers in another branch, i.e., to make "inter-branch" appointments. The relevant section of that clause, as we have discussed, is "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." U.S. CONST. art. II, Sec. 2, cl. 2. Examining the words alone, we see two basic possible interpretations: The first, pressed upon us by the independent counsel, is that the Constitution delegates to Congress without limitation the power to authorize appointment of any and all inferior officers by the President, any court of law, or any head of department. The second, advanced by appellants, is that the courts of law (Judicial Branch) and heads of departments (Executive Branch) may not be authorized to appoint officers belonging to the other branch. In the earliest case to raise the issue the Supreme Court thought the second interpretation rather than the first to be obviously the one intended by the Framers. "The appointing power here designated, in the latter part of the section, was, no doubt, intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged. The appointment of clerks of courts properly belongs to the courts of law...." In re Hennen, 38 U.S. (13 Pet.) 230, 257-58, 10 L.Ed. 138 (1839).²³

More recently, Judge Skelly Wright, dissenting in Hobson v. Hansen, 265 F.Supp. 902 (D.D.C.1967), squarely rejected--in our view correctly--the independent counsel's plain meaning argument:

[I]t is simply not true that Article II expresses any meaning quite so clear. Its language very naturally admits the common-sense reading that courts of law and the other listed offices were meant to appoint only those officers "inferior" to them.... And the narrower reading harmonizes with the most apparent purpose of Article II: to let Congress clothe Secretaries and courts with the necessary authority for filling vacancies in their own staffs.

Id. at 921 (Wright, J., dissenting) (emphasis added).²⁴

Although we certainly sympathize with the notion of seeking the meaning of constitutional provisions first in textual language, we do not think this issue can possibly be resolved by invocation of the plain meaning rule. The clause, as we have observed, is certainly susceptible to at least two interpretations, and so we turn next to the available history of its adoption to gain insights into the Framers' purpose. See Missouri Pac. Ry. v. Kansas, 248 U.S. 276, 280, 39 S.Ct. 93, 63 L.Ed. 239 (1919). The appointment provision itself represents a major change from the Articles of Confederation, which vested the appointment of officers in the Congress. And the records of the debates of the Convention evince serious discussion of the clause. For example, John Dickenson moved to allow Congress to vest the appointment of some officers in the "Legislatures or Executives of the several states." 2 M. Farrand, supra note 11 at 406. This putative encroachment on the President's power was rejected. Subsequently, James Wilson had occasion to object to Senate participation in the appointment process, "as blending a branch of the Legislature with the Executive. Good laws are of no effect without a good Executive; and there can be no good Executive without a responsible appointment of officers to execute. Responsibility is in a manner destroyed by such an agency of the Senate." Id. at 538-39. Gouverneur Morris responded that "as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security." Id. at 539. The tenor of the debate reveals a jealous guarding of the President's appointment power, even against any participation by the Senate, to the end that one man would be solely responsible for choosing government officers. It is true that more time was spent discussing judicial appointments (although much of that discussion was relevant to appointment power in general), but we take that as indication that the Convention was less sure of where to place the appointment of judges than that of "all other Officers."

Debate in the Convention on an earlier version of the appointments clause, which contained no reference at all to inferior officers, suggested that the delegates were concerned as to the practical difficulties of staffing a government of a nation whose distances were vast at a time when travel and communications were slow and often difficult. George Mason accordingly proposed that officers be appointed by a council rather than by the President with the approval of the Senate. Otherwise he worried that the Senate would have to be in continuous session in order to approve appointments. Rufus King responded, however, that "[h]e did not suppose it was meant that all the minute officers were to be appointed by the Senate, or any other original source, but by the higher officers of the departments to which they belong." Id. at 539.

Later in the Convention, the inferior officer provision was added with little discussion and it appears therefore that the clause was designed to meet concerns expressed in the earlier dialogue between Mason and King. When the additional language was proposed, Madison observed that "[i]t does not go far enough if it be necessary at all--Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices." Id. at 627.²⁵ In other words, Madison, like King, thought the first part of the appointments clause, without the amendment, bestowed an implied power on principal officers to appoint officers subordinate to themselves--a power the amendment merely made explicit (but nonetheless in restricted form since it was given only to the President, courts of law, and department heads). The delegates to the Convention, we conclude, did not even contemplate that the appointments clause they fashioned permitted Congress to authorize superior officers like department heads to appoint inferior officers subordinate to other department heads; still less did they intend that the courts of law could be empowered to appoint officers in the Executive Branch who could not, consistent with the separation of powers, be constitutionally "inferior" to judges.

Turning from the debates of the Convention to the Federalist Papers (which are perhaps even more important as an interpretative aid because they, unlike the records of the Convention, were available to the state ratifying conventions), we note that Hamilton repeatedly and at some length discussed the immense importance of vesting the appointment power in the President. The purpose of these discussions is quite obscure if the only officers the President is constitutionally required to appoint are ambassadors, public ministers, and judges of the Supreme Court. See THE FEDERALIST Nos. 70, 76, 77 (A. Hamilton).

The dissent refers to an early version of the Judiciary Bill as an indication that some members of the First Congress thought judicial appointment of federal prosecutors constitutionally permissible. Dissent at 533 n. 41. We do not believe that one line from a precursor of a lengthy bill, subsequently modified to provide for presidential appointment of federal prosecutors, see Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV.L.REV. 49, 109 n. 137 (1923), is persuasive. Indeed, the change would seem more significant than the original language, especially since it may have been motivated by constitutional concerns. For as amicus curiae from the House of Representatives brought to our attention, the appointment provision was revised in response to a recommendation by Chancellor Robert Livingston that it would be "better that the Attorney General be appointed by the executive to which department he necessarily belongs than to the judicial with which the executive sh[ould] in no sort be confounded[.]" Letter from Robert Livingston to Oliver Ellsworth (June 26, 1789) (on file at Huntington Library, San Marino, California) (emphasis added).

The delegates' discussion at the Convention, the Federalist Papers, and the action of the First Congress all then support an understanding of the appointments clause that would forbid judicial appointment of executive officers. The independent counsel argues that this common sense interpretation of the clause is foreclosed by Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. 717 (1880), in which the Supreme Court upheld a statute that vested in the courts the appointment of election commissioners, thereby, according to the independent counsel, holding that Congress may generally vest the appointment of executive officers in the courts of law, rather than in the President or the department heads. See also Hobson v. Hansen, 265 F.Supp. 902, 912-13 (D.D.C.1967). In Siebold, however, the Court did not see the case before it as raising a question of congressional encroachment on the President's power to execute the laws. The statute involved in Siebold, unlike the independent counsel statute, did not prohibit the President from ordering his Attorney General to investigate election fraud.²⁶ The Court framed the question in Siebold as implicating only the proper role of the judiciary, not the powers of the President; according to the Court, the issue was whether "the act of Congress imposes upon the Circuit Court duties not judicial, in requiring them to appoint the supervisors of elections." 100 U.S. at 397.

It was not necessary, therefore, that the Court decide whether the appointment of election supervisors by a court deprived the executive of a power vested in it by the Constitution. Indeed, the law considered in Siebold was an exercise of congressional power under Article I, Sec. 5, cl. 1 of the Constitution which provides that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members."²⁷ The election supervisors had no power to initiate prosecutions. Their function included attending the elections, challenging legally dubious votes, keeping watch over the ballot boxes and submitting reports to Congress. Congress presumably could have chosen any method of appointing such officials, including vesting the appointment power in itself. As the Supreme Court observed in Buckley v. Valeo, 424 U.S. 1, 137, 96 S.Ct. 612, 690, 46 L.Ed.2d 659 (1976), in the context of a discussion of a Federal Election Commission which included members appointed by Congress, "[i]nsofar as the powers confided in the Commission are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees, there can be no question that the Commission as presently constituted may exercise them." Thus Congress' decision before the Court in Siebold to authorize the circuit courts to appoint officials charged with tasks the Constitution assigns to Congress itself did not implicate the doctrine of separation of powers except to the extent that it raised the question whether such appointments could be made by a court without violating Article III's case or controversy requirement, and it is only to that question that the Court's discussion of the appointments clause is relevant.

Our reading of Siebold is buttressed by the Court's approving reference to Hayburn's Case, 2 U.S. (2 Dall.) 409, 1 L.Ed. 436 (1792), in which several Supreme Court Justices sitting on the circuit courts suggested that a law requiring the circuit courts to undertake administrative duties regarding revolutionary pensions was void because it imposed "upon the courts powers not judicial." Siebold, 100 U.S. at 398. Siebold, therefore, does not purport to decide whether Congress may divest the Executive Branch of authority to appoint officials who carry out core executive functions. It merely decided, on the authority of the appointments clause, that vesting the appointment of election supervisors in a court did not violate the doctrine of Hayburn's Case.

Even were Siebold thought to bear more directly on the question whether officers belonging to one branch may appoint officers of another branch, it nevertheless does not support the independent counsel's position, because the Court did not hold that Congress may provide freely for such appointments. Rather, the Court examined the role of the election supervisors, which largely consisted in observing federal elections for Congress, and concluded that

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. It cannot be affirmed that the appointment of the officers in question could, with any greater propriety, and certainly not with equal regard to convenience, have been assigned to any other depositary of official power capable of exercising it. Neither the President, nor any head of department, could have been equally competent to the task.

Id. at 398 (emphasis added). The Court, in other words, could not readily determine to which branch the appointment most naturally belonged; the appointment seemingly could not have been made by any officer other than a judge "with any greater propriety." This point alone distinguishes the election supervisors from typical executive officers. Ex parte Siebold therefore does not suggest that Congress may vest the appointment of a purely executive officer, such as the independent counsel, in a court of law.

What kind of appointments then would, by virtue of their "incongruity," violate the appointments clause? We think it must be incongruous if an officer of one branch is authorized to appoint an officer of another branch who is assigned a duty central to the constitutional role of that other branch.²⁸ The independent counsel's contention that she can be constitutionally appointed by a court necessarily suggests, as was extensively explored at oral argument in this and previous cases raising the same issue, the opposing general proposition that the appointments clause is no barrier to legislation authorizing inter-branch appointments.²⁹ That is to say, a court could be empowered to appoint all officers subordinate to a department head. (For purpose of considering this issue, we have assumed that the independent counsel is an inferior officer and we will further assume that principal officers include department heads and judges.) If, for example, two-thirds of the House and Senate--a sufficient number to override a veto--disagreed strongly with the President's agricultural policy, Congress could place in a particular court, perceived as more in agreement with Congress' policy views, the authority to appoint all Department of Agriculture officers subordinate to the Secretary. That device would neatly prevent the President from implementing his own agricultural policy. Or more shocking, because of the President's Commander-in-Chief and foreign policy functions, Congress could employ the same technique to prevent the President from exercising effective control over either the State or Defense Department. It is difficult to see, if the independent counsel is correct concerning inter-branch appointments, why Congress could not delegate to a particular court--perhaps by a definition that fitted only one district judge--the appointment of all Executive Branch officers (save department heads).³⁰

Perhaps more plausible, however, is a scenario closer to the one presented by this case. Let us assume that Congress has lost confidence in the President's policy implicating only one subject matter within a department's jurisdiction--perhaps U.S. policy towards Latin America, or arms control negotiations, or the Executive Branch's presentation of cases to the Supreme Court. Under the independent counsel's view, Congress would face no constitutional impediment in requiring that a particular court appoint the officials responsible for implementing those policies. And as with the Act before us, Congress could forbid any other Executive Branch official to interfere with the special appointee's jurisdiction.³¹

Or reversing the inter-branch appointment device, Congress, if it had the constitutional authority the independent counsel asserts and was dissatisfied with the trend of federal judicial decisions, might place authority to appoint all inferior judicial officers including Justices' and judges' clerks in one department head (perhaps the Attorney General), thereby hoping to influence opinions or at least to obstruct the perceived undesirable trend.³²

It seems obvious to us that all of these examples are so at odds with the doctrine of separation of powers or the President's unitary executive authority as to be plainly contrary to our Constitution. The independent counsel and various amici contend that it is unnecessary to consider these hypotheticals to hold the independent counsel's appointment constitutional, but we do not understand why that is so since the interpretation of the appointments clause offered by the independent counsel would flatly permit Congress' authorization of inter-branch appointments. Of course most judges have a good deal more experience with criminal prosecution than with foreign affairs, so the independent counsel suggests that it is less incongruous for a court to appoint an independent counsel than, let us say, a diplomatic special envoy, but her position would, even if we could detect its principled limits, surely at least permit court appointment of all Justice Department lawyers--including the Solicitor General--who either appear before the federal courts or supervise those who do.³³ And even that necessary extension of the independent counsel's argument seems so to burden her argument with blatant unconstitutional weight as to sink it.³⁴

Nor do we think Young v. United States ex rel. Vuitton et Fils S.A., --- U.S. ----, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), is authority, as the independent counsel claims, for judicial appointment of federal prosecutors. In that case the Supreme Court sanctioned the practice of federal judges' appointing disinterested private attorneys to prosecute contempt actions based on perceived violations of a judge's own orders because "the initiation of contempt proceedings to punish disobedience to court orders is a part of the judicial function." Id., 107 S.Ct. at 2131. Since a court could not constitutionally compel a United States Attorney to prosecute (the relevant United States Attorney's Office had actually expressed disinterest, id. at 2129), the court would otherwise be unable to assure the effectuation of its orders. Indeed, the Court's decision rests on its appreciation for separation of powers and the unfettered discretion of the Executive Branch to determine whether to prosecute crimes. The Court observed that

[t]he fact that we have come to regard criminal contempt as 'a crime in the ordinary sense' does not mean that any prosecution of contempt must now be considered an execution of the criminal law in which only the executive branch may engage.... [T]hese proceedings are not intended to punish conduct proscribed as harmful by the general criminal laws. Rather, they are designed to serve the limited purpose of vindicating the authority of the court.

Id. at 2133 (emphasis added) (citation omitted).

In sum, we think the Constitution generally precludes inter-branch appointments. For the reasons further elaborated in Parts IV and V of this opinion, moreover, court appointment of prosecutors presents a more fundamental incongruity with our constitutional scheme than virtually any other type of inter-branch appointment, because it blurs that cherished separation of prosecutor and judge which is a crucial aspect of the Constitution's protection of individual liberty.

The Act further trenches on the concept of a unitary executive and departs from separation of powers doctrine by substantially limiting the President's ability to remove or supervise the independent counsel.³⁵ It provides that an independent counsel "may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties." 28 U.S.C. Sec. 596(a)(1). The Act places further restrictions on the President's removal and supervisory powers, including an extraordinarily broad provision authorizing the Special Court to review removal decisions of the Attorney General and explicit limitations on the Attorney General's authority to supervise the independent counsel. We discuss the "good cause" provision first, however, because we believe that, standing alone, it is a significant enough restriction to raise serious constitutional questions.³⁶1.

Power to remove an executive officer is important principally because it permits the President to control the performance of that officer. See Synar v. United States, 626 F.Supp. 1374, 1400 (D.D.C.1986). Even more than the appointment power perhaps, authority to remove an officer who strays from the President's desired policy direction guarantees the President the ability to channel that officer's course of action. As Madison said in the First Congress:

If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.

1 ANNALS OF CONG. 499 (J. Gales ed. 1789); see also Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926).

The Constitution, to be sure, does not require that every officer of the United States be removable at the will of the President. The civil service laws, designed to abolish the spoils system--to have merit rather than politics govern the appointment and tenure of civil servants--restrict the President's removal power. See Myers, 272 U.S. at 174, 47 S.Ct. at 44. Politics, however, is in one sense policy, and civil servants are not thought to be the President's policymakers. Rather, they take direction in their discretionary duties from the political appointees of the President who help the President fashion and execute his policies. See Elrod v. Burns, 427 U.S. 347, 367, 96 S.Ct. 2673, 2686, 49 L.Ed.2d 547 (1976) (plurality) ("Limiting patronage dismissals to policymaking positions is sufficient to [implement policies of new administration]. Nonpolicymaking individuals usually have only limited responsibility and are therefore not in a position to thwart the goals of the in-party."). Members of the civil service enjoy protection against removal largely because of their limited role. See Gifford, The Separation of Powers Doctrine and the Regulatory Agencies After Bowsher v. Synar, 55 GEO.WASH.L.REV. 441, 467 (1987) ("As room for policy formulation increases, congressional limitations upon presidential influence become problematic.").

In Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), the Supreme Court recognized another limitation on presidential removal power. Humphrey's Executor corrected the suggestion found in Myers that every officer appointed by the President with the advice and consent of the Senate must be freely removable by the President. The Court recognized that "it is within the power of Congress under the 'Necessary and Proper' Clause, Art. I, Sec. 8, to vest authority that falls within the Court's definition of executive power in officers who are not subject to removal at will by the President and are therefore not under the President's direct control." Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 3206, 92 L.Ed.2d 583 (1986) (White, J., dissenting) (discussing Humphrey's Executor ).

Humphrey's Executor, however, has not been read to validate every removal restriction. See Morgan v. Tennessee Valley Auth., 115 F.2d 990 (6th Cir.1940), cert. denied, 312 U.S. 701, 61 S.Ct. 806, 85 L.Ed. 1135 (1941). The Humphrey's Executor Court itself was careful to limit its holding to officials who had "quasi-legislative or quasi-judicial" powers, leaving the decision in Myers intact insofar as it related solely to "purely executive officers." Humphrey's Executor, 295 U.S. at 629, 632, 55 S.Ct. at 874, 875. Humphrey's Executor is therefore noteworthy partly for what it does not say. Faced with the task of distinguishing the case before it from Myers, the Supreme Court did not limit Myers by noting that the statute at issue there allowed the Senate to control the removal of an executive officer, whereas the Senate retained no role at all under the statute at issue in Humphrey's Executor. Nor did the Court distinguish Myers on the basis that in that case the President had no power without Senate consent to remove the officer, whereas in Humphrey's Executor the President had at least the power to remove for cause. The Court deliberately chose not to rely on these differences; it read Myers as an absolute prohibition on any restriction of the President's power to remove a purely executive officer whom he had appointed. Instead, the Court validated the removal restriction in Humphrey's Executor because the Federal Trade Commissioners were not purely executive officers, but rather performed quasi-judicial and quasi-legislative functions.³⁷

Although Myers and Humphrey's Executor both concerned officers who were appointed by the President, whereas the independent counsel was appointed by the Special Court, we think the Supreme Court's analysis of the President's removal power in both cases applies to an officer who, like the independent counsel, is charged with an indisputably executive function. The independent counsel argues that because she is an inferior officer not appointed by the President, Congress may restrict her removal under the reasoning of United States v. Perkins, 116 U.S. 483, 6 S.Ct. 449, 29 L.Ed. 700 (1886). Perkins was a suit by a Navy cadet-engineer to recover pay accruing after he was discharged by the Secretary of the Navy in contravention of a law forbidding discharges in peacetime except by court-martial. The Supreme Court adopted the language of the Court of Claims, which said that "[w]e have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of departments it may limit and restrict the power of removal as it deems best for the public interest." Id. at 485, 6 S.Ct. at 450. Although appointed by a court rather than a department head, the independent counsel maintains the same reasoning applies to her. An officer's removal may be restricted, we are told, if the officer was not appointed by the President in the first place. But it cannot be that a restriction on the power of the President to remove an officer appointed by him, a restriction that under Myers unconstitutionally interferes with the President's duty to oversee the execution of the law, becomes constitutional if the power of appointment as well is removed from the President and all other members of the Executive Branch. Depriving the Executive Branch of appointment power increases rather than decreases the Act's interference with the President's prerogatives. Accordingly, in Humphrey's Executor, the Court treated the President's power to appoint the FTC Commissioners as a factor to be weighed against the argument that a restriction on removal encroached upon the President's executive authority. The Federal Trade Commission was meant by Congress to "be independent of executive authority except in its selection." 295 U.S. at 625, 55 S.Ct. at 872 (emphasis in original). This point has been reemphasized in subsequent Supreme Court discussions of the case. See Bowsher, 106 S.Ct. at 3195 n. 2; Buckley v. Valeo, 424 U.S. 1, 136, 96 S.Ct. 612, 690. The independent counsel thus turns the proper analysis of the relationship between the President's appointment and removal powers on its head. In that regard, it should not be overlooked that in Perkins the officer in question was appointed by a member of the Executive Branch, and therefore the President retained at least indirect control over his selection.³⁸ Furthermore, the cadet-engineer, like a civil servant, was not himself charged with carrying out an executive function that required the exercise of policy discretion. So Perkins in our view is wholly inadequate support for the independent counsel's defense of the statute's removal provisions. See Myers, 272 U.S. at 161, 47 S.Ct. at 40 ("The Perkins case is limited to the vesting by Congress of the appointment of an inferior officer in the head of a department.").

To be sure, Supreme Court Justices have expressed dissatisfaction with the distinctions drawn in Humphrey's Executor. See, e.g., Bowsher v. Synar, 106 S.Ct. at 3207 n. 3 (White, J., dissenting); FTC v. Ruberoid Co., 343 U.S. 470, 487-88, 72 S.Ct. 800, 810, 96 L.Ed. 1081 (1952) (Jackson, J., dissenting). They contend, not without force, that the FTC Commissioners' duties included law enforcement responsibilities and so Humphrey's Executor's reliance on the Commissioners' quasi-judicial and quasi-legislative functions is inadequate to explain the case--and to limit its future applicability.

Even under this alternative reading, which recognizes certain executive functions performed by the FTC, Humphrey's Executor cannot, it seems to us, sanction the Act's good cause removal limitation. In Humphrey's Executor, the Commissioners were described as a "body of experts" whose purpose was "to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid." 295 U.S. at 625, 628, 55 S.Ct. at 872, 874. An important part of the Commissioner's role was to flesh out the very general legislative standard contained in the FTC Act. The Federal Trade Commission therefore was part and parcel of the very statute it was assigned to enforce--it actually created the law of fair trade in the course of adjudicatory enforcement proceedings.³⁹ "If all [the FTC] has to do is to order the literal statute faithfully executed, it would exercise a function confided exclusively to the President and would be subject to his control." FTC v. Ruberoid Co., 343 U.S. 470, 488, 72 S.Ct. 800, 810, 96 L.Ed. 1081 (1952) (Jackson, J., dissenting). According to that view then, the Federal Trade Commission Act did not divest the President of his constitutional duty to oversee the execution of the law because "any such duty [was] necessarily limited to a great extent by the content of the laws enacted by the Congress," Bowsher, 106 S.Ct. at 3207 (White, J., dissenting), and part of the "content" of the fair trade law is the Commission itself. That analysis simply does not apply to the Ethics in Government Act because this statute entrusts enforcement of a pre-existing body of criminal law to an official neither appointed nor removable by any member of the Executive Branch. What is more, the independent counsel has no legislative or judicial role regarding the United States criminal code; her only responsibility is to execute it, and that is a responsibility the Constitution assigns unequivocally to the Executive Branch. Cf. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed2d 675 (1986); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (danger of encroachment on the Judicial Branch is less when matters removed from the jurisdiction of Article III courts concern rights created by Congress that could constitutionally be addressed by Congress itself). Humphrey's Executor does not even suggest that a statute which excludes the President from the enforcement of preexisting law would be constitutional.

No party or amicus before this court denies that the independent counsel is a "pure" executive officer. The issue is, in any event, foreclosed by Bowsher, in which the Court said "[i]nterpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law" and the exercise of judgment "concerning facts that affect the application of the [law]" is another characteristic of the executive function. 106 S.Ct. at 3192. The independent counsel is a fortiori an executive officer under this definition. She must determine whether the facts uncovered in her investigation may constitute illegal conduct; in order to make this judgment, she must "interpret[ ] a law enacted by Congress." Those legal interpretations and law enforcement functions exercised by the independent counsel carry more--much more--executive discretion than the specific duties of the Comptroller General involved in Bowsher; no one asserts that her duties--as was claimed of those of the Comptroller General--are "essentially ministerial and mechanical." Id.; see Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985).

Although he has frequently dissented from cases overturning laws on separation of powers grounds and has advocated a pragmatic view of the separation of powers doctrine, Justice White has repeatedly stressed the core executive nature of the prosecutorial function and the consequent importance of ensuring that the President retain the power to remove core executive officers at will. See, e.g., Bowsher, 106 S.Ct. at 3207 (White, J., dissenting) ("[T]here are undoubtedly executive functions that, regardless of the enactments of Congress, must be performed by officers subject to removal at will by the President."); INS v. Chadha, 462 U.S. 919, 1002, 103 S.Ct. 2764, 2810, 77 L.Ed.2d 317 (1983) (White, J., dissenting) ("A legislative check on an inherently executive function, for example, that of initiating prosecutions, poses an entirely different question."); Buckley, 424 U.S. at 285, 96 S.Ct. at 758 (White, J., concurring in part and dissenting in part) ("I would be much more concerned if Congress purported to usurp the functions of law enforcement....").

Like Justice White, we cannot see how prosecution of federal criminal law can be other than an inherent, or core, executive function. It was suggested at oral argument, however, that because the Constitution does not mandate the creation of lower federal courts, but leaves that decision to the discretion of Congress, it was not inevitable that there would even be federal prosecutors, much less that the prosecutorial function was placed in the Executive Branch. But the Framers did foresee that the new government they were establishing would sometimes need to enforce its laws through criminal prosecutions. They actually provided in important detail for the procedure to be used in such cases--the Constitution directs that all federal criminal trials shall be by jury and "shall be held in the State where the said Crimes have been committed." U.S. Const. art. III, Sec. 2, cl. 3. If no lower federal courts had been created, then federal crimes would have been prosecuted by federal prosecutors in the state courts, in which case the Supremacy Clause would obligate state court judges to apply federal law. See generally Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947); Claflin v. Houseman, 93 U.S. (3 Otto) 130, 23 L.Ed. 833 (1876); THE FEDERALIST No. 82 (A. Hamilton). Nothing in the Constitution gives Congress the power directly to require state officers to enforce federal criminal law, cf. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 107-08, 16 L.Ed. 717 (1860), overruled by Puerto Rico v. Branstad, --- U.S. ----, 107 S.Ct. 2802, 97 L.Ed.2d 187 (1987) (mandamus lies in federal court to require a state officer to comply with a ministerial--not discretionary--constitutional duty),⁴⁰ and any attempt to do so would conflict with concepts of federalism, state sovereignty, and the Tenth Amendment. So at the outset the Framers must have foreseen the necessity of officers of the United States commissioned to enforce federal criminal law.

We think it inevitable that under the Constitution such officers must be members of the Executive Branch subject to the control of the President. In contrast to the limited grants of legislative power made in Article I, Article II grants authority to the President in broad terms: "[T]he executive Power shall be vested in a President," U.S. Const., art. II, Sec. 1, and does not individually list all his various duties, but it does specifically require that he shall be the Commander-in-Chief of the Armed Forces and that he may make treaties with the advice and consent of the Senate and receive ambassadors. Id., Sec. 2. It also directs the President to "take Care that the Laws be faithfully executed." Id., Sec. 3. The dissent's suggestion that this provision is only a limitation on the President's authority--that the President is required to execute only those laws that Congress delegates to him--implies that all sorts of executive officers could be delegated authority to enforce laws beyond the President's control or influence. Dissent at 524 n. 19. That would mean that Congress could restrict presidential removal, as far as we can discern, of virtually any executive officer. We think that interpretation of the Constitution is utterly implausible besides being palpably inconsistent with Myers and Humphrey's Executor. We conclude rather that the Constitution envisioned two core domains of presidential responsibility--foreign affairs and law enforcement--and it is apparent from the structure and language of the Constitution that the initiation of a criminal prosecution in our federal system is entrusted to the President. See Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 1656, 84 L.Ed.2d 714 (1985); United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974).

Even if a simple "good cause" restriction on the President or his subordinate's removal power over the independent counsel were constitutional, this statute, prior to its recent amendment, restricted Executive Branch authority a good deal more than the normal "good cause" limitation.⁴¹ Its delegation to the Special Court to "review" the Attorney General's dismissal of the independent counsel so diminished the Attorney General's removal authority as to render it almost illusory. Any review, regardless of scope, might be problematic because the court which reviewed the dismissal is the very court that appointed the independent counsel and for that reason, of course, "might well be expected to view [her] as its protege." In re Sealed Case, 829 F.2d at 65 (Williams, J., concurring and dissenting).

The scope of review, however, is quite extraordinary--given the probable nature of an Attorney General's decision to remove an independent counsel. Reinstatement may be ordered if the "removal was based on error of law or fact." But such a decision would likely turn on issues of public policy, for example the appropriate limitations to be placed on a prosecutor's zeal, that are beyond traditional judicial competence. See Federal Radio Comm'n v. General Elec. Co., 281 U.S. 464, 469, 50 S.Ct. 389, 390, 74 L.Ed. 969 (1930). If reviewed at all, these kinds of Executive Branch determinations are normally examined under a deferential arbitrary and capricious standard because of concerns for separation of powers. See Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 276-77, 53 S.Ct. 627, 632-33, 77 L.Ed. 1166 (1933). See generally 4 K. DAVIS, ADMINISTRATIVE LAW Sec. 29.10 (1958) (a system of review that requires a federal court merely to repeat the decision process of an administrative or legislative agency violates Article III; this discussion omitted from later editions). By authorizing review of any question of law or fact, Congress invites the Special Court to determine what facts are relevant and thereby implies that the Special Court has authority to determine for itself the appropriate standard against which the independent counsel's conduct is to be measured. That scope of review would seem to exceed even de novo, which as we have recently held, limits a court "to make anew the same judgment made by the agency," Doe v. United States, 821 F.2d 694, 698 (D.C.Cir.1987) (en banc ) and to apply the same standard applied by the agency, id.⁴²

Nothing in the Act, moreover, indicates that the Special Court's "review" is restricted to the record before the Attorney General at the time of the removal decision; indeed, since such a decision would typically be made for policy reasons, and not because some fact appears in a hypothetical record, review of the record seems anomalous in this context. At oral argument, counsel for the independent counsel suggested that an evidentiary record might be created before the court itself in a civil action brought by a discharged independent counsel, 28 U.S.C. Sec. 596(a)(3), which further suggests that the court could consider information not before the Attorney General when he made his decision.⁴³ Cf. United States v. Bianchi & Co., 373 U.S. 709, 714-15, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652 (1963) ("reviewing function is one ordinarily limited to consideration of the decision of the agency or court below and of the evidence on which it was based"). In truth, because th