TGIF: May 19, 2017 – On the Constitutional Oddity of a “Special Counsel”

Despite what you may have heard, lawyers are, in fact, human beings with interests and hobbies all their own. They are not, I repeat not, robots sent from the future solely for the purpose of billing hours, drafting documents, and negotiating terms.  Not all of them anyway.  

In TGIF, I touch on some of my own interests primarily through the lens of the “Rules of the Game”, focusing on the rules and incentives that affect many aspects of our daily lives. I may even crack a joke or two. Hard to say.

TGIF will be published regularly on (surprisingly enough) Friday mornings. For more information, check out www.hoeglaw.com or drop Rick a line at rhoeg@hoeglaw.com.

***

On Wednesday May 17th, acting Attorney General Rod Rosenstein (in place of recused Attorney General Jeff Sessions) appointed former Department of Justice official and FBI Director Robert S. Mueller III to serve as “Special Counsel” to oversee an investigation of “Russian government efforts to influence the 2016 presidential election and related matters”.

(Mr. Mueller’s title of “Special Counsel” not to be confused, of course, with the executive branch’s permanent and not at all independent, “Office of Special Counsel“.  Because naming conventions in Washington have never been anything if not entirely and completely clear.)

Given the nature of the investigation as a response to cries of a “constitutional crisis” in the wake of the President’s firing of former FBI Director James Comey, what you may not know is how tumultuous a Constitutional history the concept of a “special counsel” or “independent prosecutor” has had in its own right.

Can an executive branch official like an Attorney General appoint an individual that cannot be fired by his or her own boss?  If not (or if there is some doubt), can congress empower the Attorney General to do so?  If so, what does that mean for the separation of powers?  And what if that congressional authority should expire?

Many of these questions have been asked and answered multiple times (and in multiple ways) throughout our nation’s history, but never in a fashion which one could deem “definitive”.  Such is the nature of an inherently political but simultaneously “independent” position, one supposes.

Let’s take a deeper look.

What is a “Special Counsel”?

The concept of a “Special Counsel” (“Independent Counsel”, “Special Prosecutor”, etc.) is not a new one.  In the first century, the Roman poet Juvenal coined a phrase to describe the question such a counsel seeks to answer.  Fans of comic books know one translation of Juvenal’s famous question: “Who watches the Watchmen?”.

As most grade-schoolers can tell you (one would hope), the U.S. government is divided into three branches, which are intended to share power equally.  The “legislative” that writes the laws the “judicial” that interprets the laws, and the “executive” that enforces the laws.  It’s with this third branch that problems can arise, however.  If the executive  is in charge of enforcing the laws, can we really trust it to enforce those laws against itself? And if we can’t, isn’t the system vulnerable to the illegal acts of such branch?

A “Special Counsel” is the answer to this question.

Such a counsel is invested with virtually unlimited power to investigate and charge executive branch members with crimes (or other findings).  Despite being appointed by the executive branch (the Attorney General), such an individual cannot be fired by the head of that branch (the President) as allowing such a firing would damage the point of having such a counsel in the first place.

But can a subordinate member of a branch of the U.S. government really appoint someone who can’t be fired by his boss (or his boss’ boss)?  And if he can, from where does that power spring?  As you might expect, the answer can be…complicated, but as with many “interesting” facets of U.S. legislative history, a great deal of the complication can be tracked back to one particular scandal.

Watergate and “Ethics in Government”

Though used sporadically since the founding of the republic in connection with pithy two-word scandals you may remember from history class like “Whiskey Ring” and “Teapot Dome”, the concept of a “special” or “independent” prosecutor didn’t reach its modern understanding until Richard Nixon’s firing of Archibald Cox in the midst of Cox’s investigation into the Watergate scandal.  (The firing was actually effected through Nixon’s acting Attorney General Robert Bork, after his previous two Attorneys General had resigned.  A sequence of events the media soberly termed the “Saturday Night Massacre“.)

In light of Nixon’s actions, Congress saw fit to better document what it viewed as its inherent power to appoint such a “special counsel” and, more importantly, to keep such an individual outside the authority of the President.  In 1978, Congress passed the “Ethics in Government Act” which separated the appointment and naming of a special prosecutor into the executive (Attorney General) and judicial (three-judge panel) branches respectively.

With such a structure, Congress sought to insulate the Act from challenge on Constitutional grounds.  But as one might expect, such a challenge did eventually come.

Morrison v. Olson

In 1988, ten years after the passage of the “Ethics in Government Act” and fifteen after Watergate, the Supreme Court of the United States was called to determine the Act’s Constitutionality in the case of Morrison v. Olson.

In Morrison, the executive branch asserted that the Act was Unconstitutional as it infringed on the Constitution’s fundamental separation of powers concepts.  In rejecting the executive’s claim, the Court upheld the Constitutionality of the Act on the basis that it did not “unduly interfere” with the executive’s powers:

The Act, taken as a whole, does not violate the principle of separation of powers by unduly interfering with the Executive Branch’s role. This case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch.

Nor does the Act impermissibly undermine the powers of the Executive Branch, or disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions. Even though counsel is to some degree “independent” and free from Executive Branch supervision to a greater extent than other federal prosecutors, the Act gives the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.

But despite the Court reaching such decision on a 7-1 vote, that 1 (the late Antonin Scalia) was scathing in his (quite voluminous) dissent:

“The executive Power shall be vested in a President of the United States.”

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.

As was often the case with Justice Scalia’s jurisprudence, his conclusion further lambasted the Morrison Court’s willingness to legislate from the bench.

A government of laws means a government of rules. Today’s decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the “totality of the circumstances” mode of analysis that this Court has in recent years become fond of.

Taking all things into account, we conclude that the power taken away from the President here is not really too much.

The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much.

That opinion, like this one, will not be confined by any rule.

Justice Scalia was not a fan of balancing tests.

But dissent is not law, and so the “Ethics in Government Act” lived to fight another day.

Ethics in Government (1978-1999)

From 1978 through 1999 (with a brief hiatus from 1992 to 1994), the Ethics in Government Act was used to appoint just under two dozen special (or “independent”) prosecutors to investigate all manner of executive branch activities from illicit arms sales to illicit real estate transactions and everything in between.

Over that time, the nature of the “Special Prosecutor” and its related investigations became synonymous with overspending and with overreach.  Such feelings culminated in the impeachment of President Bill Clinton in 1998 as a result of a White House sex scandal (and the President’s lies related thereto).

The Clinton prosecutor’s original charge – to investigate questionable real estate dealings and an apparent suicide.  $40M later, the country was knee-deep in an education on the manifold definitions of verbs of being.

By the time the Clinton impeachment process was concluded, Congress had little appetite for being held responsible for such investigations.  “Ethics in Government” lapsed and was not renewed (the Act, not the concept…I don’t think) in 1999.

Who Needs Statutory Authority, Anyway?

But as you may note from the circumstances that gave rise to this post, the practice of appointing a “Special” or “Independent” counsel has not ceased with the expiration of the Ethics in Government Act in 1999.

After 1999, the office of the Attorney General has instead relied on its “inherent” authority to appoint personnel within its office in order to name “special counsel”.  The basis for its claim of this authority can be found in 28 CFR 600.  Note that “CFR” stands for “Federal Regulations,” not law.  The rules which the Attorney General now uses to appoint such individuals are “made up” by the government itself, not from legislative action.

In pertinent part:

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and –

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

***

The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General.

As is the case with all federal regulations, a citation to statutory or Constitutional authority is given, here most pertinently to 5 U.S.C. 301 and 28 U.S.C. 510.  Neither is terribly convincing for this purpose, however.  In their entirety:

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

***

The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

So, the office of the Attorney General, like every other office in the executive branch, can set forth regulations prescribing how the office is to function.  Further, the Attorney General can delegate his or her own functions to a subordinate.

But no where in either statue is authority given to the Attorney General to appoint and fund an individual that operates effectively outside the office and which cannot be fired (like the Attorney General itself can) by the President of the United States.  In fact, since the power to organize and run the office of Attorney General emanates from the President’s office itself, it is difficult to see, logically, from whence such authority might spring.

In short, 28 CFR 600 looks to be a fairly classic case of federal regulations arising out of limited or no actual authority, and one that gives rise to almost more questions than it answers.

It is in that context that Mr. Mueller has been appointed this week.

Today

Today, with only dubious federal regulations to turn to, the concept of a “Special Counsel” (or “Prosecutor”) stands on shaky ground.  In the absence of the “Ethics in Government Act” and the Morrison decision (which, as all judicial decisions must, related solely to the statute at issue and not more generalized concepts), there are significant questions to be raised surrounding whether an Attorney General (or acting Attorney General) can appoint such an individual, and whether or not the President can do anything about it.

Could we have another Saturday Night Massacre on our hands?  If Mr. Mueller strays too far afield (say into a sex scandal or two), would the President be justified to attempt his firing?  Or to fire one or more of his Attorneys General to encourage them to act on his behalf?

Whether such an action would be justified or not, whether the investigation itself is justified or not,  we can be sure of at least one universal truth: everything related to this will cost a lot of money.  And where a consultant or employee spends a lot of money, there is very often a desire to justify that expenditure.

Heads of some kind will roll, we just can’t be sure of who’s or why.

My Two Cents

As a lawyer, I am regularly made witness to abuses of power at all levels of government both local and federal.  And there is no question that those abuses should be disincentivized and quashed wherever possible.

That said, our nation’s system of checks and balances works precisely because the three branches of government are built to counter the actions of the others (and because the founders understood that ego and ambition could be used as levers to encourage positive effects out of otherwise destructive negative behavior.)

By permitting a member of the executive branch to appoint an individual that sits outside the control of all three branches of government, a fourth branch if you will, the republic plays a dangerous game.  While it is easy to sit back and relish in the misfortune of one’s political enemies, it is worth remembering that, as noted American poet and historical philosopher Lin Manuel-Miranda once said, every “American experiment sets a precedent“.

We should consider carefully the next time we seek to invest unlimited power in the hands of an unelected official answerable to no one.

Ken Starr was investigating a suicide, after all.

Word of the Week – Expansive

Covering a wide area in terms of space or scope; extensive

“Though everyone knew that the investigation could be long-lived, no one could have guessed just how expansive it would become.”

$40M on a suicide investigation doesn’t spend itself.  All sides should be wary when no one is capable of watching the watchers.

***

Thanks for stopping by.  Want to tell me how wrong I am?  How right? Feel free to leave a comment down below, and be sure to check out the rest of Rules of the Game and www.hoeglaw.com for legal insights, commentary, and (hopefully) helpful articles.

Have a great Friday everybody!

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s