as part of an intelligence operation organized by individuals highly placed in the opposing political party. Although this particular effort was aborted by the arrests of the burglars, other such enterprises were more successful in providing documents and information to top campaign aides. Several of those implicated in the Watergate affair (e.g., White House Counsel John Dean and White House aides H. R. Haldeman and John Ehrlichman) made contradictory statements during the ensuing investigation. And an in-house investigation was conducted by John Dean which yielded no positive results.
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,
that may not be true at all, and the parallels do not necessarily suggest that it is.
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
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,
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, § 45.09: Legislative Purpose and Public Policy (4th ed. 1973).
It is very clear that Congress did not intend to create an elaborate Independent Counsel machinery -- which makes sense only in the context of a distrust of the Attorney General with respect to the prosecution of alleged wrongdoing of his official and political colleagues -- only to establish the Attorney General as the "gatekeeper" of that machinery,
able, without the slightest review by anyone, to open the gate or to slam it shut as it may suit his purpose.
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.
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.
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.
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. . . .