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BANZHAF v. SMITH

May 14, 1984

JOHN F. BANZHAF, III, et al., Plaintiffs,
v.
WILLIAM FRENCH SMITH, et al., Defendants



The opinion of the court was delivered by: GREENE

Plaintiffs brought this action under the Ethics in Government Act *fn1" to require the Attorney General to apply to the special panel of the U.S. Court of Appeals *fn2" for the appointment of an Independent Counsel *fn3" pursuant to that Act. Such counsel would be charged with the responsibility for investigating whether high-ranking government officials committed federal offenses in connection with the removal of briefing materials and other documents from the Carter White House to the Reagan headquarters during the 1980 presidential campaign. On February 29, 1984, the Court denied the government's motion to dismiss in which it was contended that the plaintiffs lacked standing to sue and that the complaint failed to state a claim upon which relief might be granted. *fn4" On March 29, 1984, plaintiffs moved for summary judgment, and on April 19, 1984, the government cross moved for summary judgment. *fn5"

I

 The Court's ruling on the motion to dismiss rejected the government's legal contentions and left for adjudication only the factual issue whether plaintiffs had presented the Attorney General with information sufficient to require him to conduct a preliminary investigation under the Ethics Act. Slip opinion at 9 n.22. In light of that background, the papers filed by the government and the arguments it presented at the hearing on April 27, 1984, are as significant for what they do not say as for what they do.

 As indicated in note 6 supra, these assertions are deemed under the Rules to be established for purposes of this litigation unless they are contradicted in the government's own Statement of Material Facts. The government's Statement failed entirely to contradict any of these assertions, *fn7" and it did not allege any specific facts showing that there is any genuine factual dispute. Indeed, the government states that it is in agreement with the plaintiffs "that there are no material facts in dispute and that this case is ripe for summary judgment." Memorandum at 2.

 In view of that record, it must be taken as established for purposes of the government's remaining arguments that the materials submitted by plaintiffs to the Attorney General are sufficiently specific and credible to trigger a preliminary investigation *fn8" under the Ethics Act. *fn9"

 Thus, the remainder of the government's case necessarily rests on the proposition that, as a matter of law, the Court is without authority to require the Attorney General to proceed in accordance with the Act even though he has specific and credible evidence that persons covered by the Act may have committed federal criminal offenses. It is to the particular contentions underlying that claim to which the Court now turns.

 II

 The government requests initially that the Court reconsider its ruling that plaintiffs have standing to bring this action. *fn10" However, nothing has been offered in support of that request that the Court did not consider fully in its previous ruling. If anything, since the government has now failed on the record to controvert the existence of evidence sufficient to cause the initiation of an Ethics Act investigation, its arguments are even less persuasive now than they were before that factual question had been resolved.

 The government argues that, even if the Attorney General has sufficient information, he may decide not to conduct an Ethics Act investigation or to apply for the appointment of Independent Counsel, and no one may question his decision. What that argument necessarily assumes is that, in enacting this statute, Congress intended to give the Attorney General plenary, unreviewable authority to proceed or not to proceed with the machinery established by the Ethics Act as he sees fit. The legislative history of the Act indicates that the opposite is true.

 The Ethics Act was a direct outgrowth of the Watergate scandals. *fn11" Central to those scandals were (1) the failure of the then Attorney General to prosecute those responsible for the "cover-up" of the initial burglary and (2) Executive Branch interference with the special prosecutors who were ultimately appointed to take over the investigation. *fn12" What we have here is, what is, in several respects, a parallel to that episode, as follows.

 According to the unrebutted evidence submitted by plaintiffs in this case, campaign documents may have been stolen during the 1980 campaign and transferred to the headquarters of the opposing political party as part of a large-scale intelligence operation. Senior campaign officials, now high-ranking officers of government, subsequently came into possession of these documents. Some of these officials (e.g., White House Chief of Staff James A. Baker, III and CIA Director William Casey) made directly contradictory statements. Ultimately, a decision was made to conduct only an in-house investigation of the matter without participation by an independent prosecutor.

 These parallels are not recited to suggest that the Court believes that this case is another Watergate. To the contrary, as stated February 29, 1984, *fn13" that may not be true at all, and the parallels do not necessarily suggest that it is. *fn14" But these parallels are relevant in another way, that is, to a determination of what Congress intended when it enacted the Ethics Act.

 If the Court were to accept the Department's arguments on standing and nonreviewability, it would necessarily have to make two fundamental assumptions regarding congressional purpose. First, it would have to assume that, notwithstanding the congressional experience during Watergate with the indifference, or worse, of the then Attorney General to the crimes being committed around him, it intended to vest sole and unquestionable authority *fn15" in the Attorney General to decide whether and under what circumstances the Independent Counsel mechanism was to be activated. Second, the Court would have to assume that Congress intended to give the Attorney General such unreviewable authority even in a case such as this which bears an uncanny resemblance to Watergate in the several respects related above.

 Not only are those assumptions not borne out by the legislative materials, *fn16" but they would ascribe to the lawmakers an intention to establish an illogical, entirely self-defeating scheme. That is not the way in which statutes are normally construed. See Motor and Equipment Mfrs. Ass'n v. EPA, 201 U.S. App. D.C. 109, 627 F.2d 1095, 1108 (D.C. Cir. 1979); and see generally, Sutherland 2A Statutory Construction, ยง 45.09: Legislative Purpose and Public Policy (4th ed. 1973).

 The Court once again rejects the Department's contentions that, as a matter of statutory construction, no one has standing to seek judicial review of the Attorney General's refusal to comply with the Ethics in Government Act and that no court may review the Attorney General's decision.

 III

 The government argues next that a judicial order requiring the appointment of Independent Counsel would be unconstitutional as violating the doctrine of the separation of powers. *fn19" More specifically, it contends that the prosecution of criminal cases "lies at the core of the Executive Branch powers" which Article II, Section 1 of the Constitution vests exclusively in the Executive Branch and is therefore beyond the power of the Congress and the Judiciary. *fn20" Considered in its component parts, the government's argument raises three different, though interrelated, questions, as follows.

 First. May the Congress constitutionally vest the authority to appoint a prosecutor in a court, that is, the special panel of the U.S. Court of Appeals?

 Article II, Section 2, Clause 2 of the Constitution grants to the Congress authority to "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" (emphasis added). See E. Corwin, The Constitution and What It Means Today 145 (1973); United States v. Germaine, 99 U.S. 508, 509-10, 25 L. Ed. 482 (1878). This constitutional provision obviously does not authorize the Congress to charge the courts indiscriminately and without reason with the responsibility for appointing officers in the Executive departments generally. On the other hand, the provision is plainly not meaningless.

 The Supreme Court considered the question of the appropriate standard in Ex parte Siebold, 100 U.S. 371, 397-98, 25 L. Ed. 717 (1879). The Court there said, regarding the example of the appointment of a U.S. Marshal, that

 
He is an executive officer, whose appointment, in ordinary cases, is left to the President and the Senate. But if Congress should, as it might, vest the appointment elsewhere, it would be questionable whether it should be in the President alone, in the Department of Justice, or in the courts. . . .

 In the Ethics Act, Congress vested the power of appointment of Independent Counsel in the special panel of the U.S. Court of Appeals because it believed that the interests of justice would be best served if an impartial outsider, not beholden to the Attorney General, performed the responsibilities of that Office. Not only was that congressional decision not inherently unreasonable, *fn21" but, in the words of Ex parte Siebold, there might well have been an "incongruity" in imposing that duty upon the Attorney ...


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