The opinion of the court was delivered by: ROBINSON
(THIS MEMORANDUM SHALL BE FILED IN THE PUBLIC RECORD, AS IT DOES NOT REVEAL THE NATURE OR CONTENTS OF ANY SEALED MATERIAL.)
This sealed matter presents for determination by the Court the question of whether the Independent Counsel provisions of the Ethics in Government Act of 1978, 28 U.S.C. § 591 et seq., comport with the Constitution of the United States. After consideration of a number of submissions concerning this issue,
the Court holds that the statute is constitutional.
The historical background of and need for the Independent Counsel provisions of the Act have been fully described in other decisions and shall not be repeated here. See, e.g., In re Olson, 260 U.S. App. D.C. 168, 818 F.2d 34, (D.C. Cir. 1987). Congress's intent in enacting the statute was clearly to create an office within the Executive Branch to investigate and prosecute matters in which the Department of Justice had a real or apparent conflict of interest. In short,
the statute is designed to ensure that violations of federal criminal law by high ranking government officials (particularly those who are of the same party as the administration in power) will be fairly and impartially investigated and prosecuted.
While it is beyond question that Congress's motive for enacting the statute was laudatory, it is also axiomatic that this motive cannot validate an otherwise unconstitutional act of the legislature. For this reason, the Court has examined in turn each provision of the Ethics in Government Act which has been alleged to be unconstitutional.
THE POWERS OF THE SPECIAL DIVISION OF THE COURT OF APPEALS
The first contention relates to the provisions of 28 U.S.C. § 49 giving authority for the appointment of Independent Counsel to a division of the United States Court of Appeals for the District of Columbia Circuit. It is strenuously contended that this grants powers to that division which exceed the limitations imposed upon federal courts by Article III of the Constitution of the United States. The specific duties alleged to be unconstitutional are set forth at 28 U.S.C. § 593(b):
Upon consideration of an application (from the Attorney General) under section 592(c) of this title, the division of the court shall appoint an appropriate independent counsel and shall define that independent counsel's prosecutorial jurisdiction.
In considering whether the Special Division has been vested with unconstitutional power, it must be recognized that the source of the court's authority is not only Article III but also the Appointments Clause of Article II. Article II, Section 2, Clause 2 of the Constitution expressly grants to Congress the 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."
The issue of whether the Independent Counsel is a superior or inferior officer for purposes of the Appointments Clause has been discussed and determined by other Courts with which this Court agrees that "the Independent Counsel is clearly an 'inferior officer' -- he is appointed for a single task to serve for a temporary limited period." In re Olson, slip op. at 17. See also Banzhaf v. Smith, 588 F. Supp. 1498 (D.D.C.), vacated on other grounds, 238 U.S. App. D.C. 20, 737 F.2d 1167 (D.C. Cir. 1984). Cf. United States v. Eaton, 169 U.S. 331, 343, 42 L. Ed. 767, 18 S. Ct. 374 (1898) ("Because 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 addition to the limitations placed on independent counsels, it is also relevant that they are not among the specifically mentioned "primary class (of officers who) require a nomination by the President and confirmation by the Senate." United States v. Germaine, 99 U.S. 508, 509-510, 25 L. Ed. 482 (1878). In fact, Congress indicated its own assessment that independent counsels are inferior officers when it authorized their appointment by a court of law.
Finally, the Attorney General, by applying for the appointment by the Court of an independent counsel, also deemed the officer to be inferior as that word is used in Article II.
Although it is clear to the Court that independent counsels are inferior officers, this does not end the analysis of the proper role of the Special Division under the Appointments Clause. For as ...