In re Sealed Case
838 F.2d 476 (1988)
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Rule of Law:
The Ethics in Government Act of 1978 is unconstitutional because its independent counsel provisions violate the Appointments Clause and the separation of powers doctrine by impermissibly interfering with the President's executive authority and vesting executive powers in the judiciary.
Facts:
- In 1982, a dispute arose between subcommittees of the U.S. House of Representatives and the Environmental Protection Agency (EPA) over the production of documents related to the clean-up of hazardous waste sites.
- The House Judiciary Committee began an investigation into the Justice Department's role in the EPA document controversy.
- Theodore B. Olson, then Assistant Attorney General for the Office of Legal Counsel, provided testimony to the subcommittee during this investigation.
- After its investigation, the Judiciary Committee issued a report alleging that Olson had given false and misleading testimony and also suggested possible wrongdoing by two other Justice Department officials, Carol E. Dinkins and Edward C. Schmults.
- Based on this report, the Judiciary Committee formally requested that the Attorney General seek the appointment of an independent counsel under the Ethics in Government Act to investigate Olson.
Procedural Posture:
- The Attorney General requested the Special Court (Independent Counsel Division of the D.C. Circuit) to appoint an independent counsel to investigate Theodore B. Olson. Alexia Morrison was subsequently appointed.
- Independent Counsel Morrison's request for the Attorney General to expand her jurisdiction to formally investigate Edward C. Schmults and Carol Dinkins was denied.
- Morrison then applied to the Special Court to expand her jurisdiction; the court denied the request but held that investigating a potential conspiracy involving Schmults and Dinkins was implicit in her original mandate.
- Morrison issued subpoenas to Olson, Schmults, and Dinkins to appear before a grand jury.
- The appellants moved to quash the subpoenas in the U.S. District Court for the District of Columbia, arguing the Act was unconstitutional. The district court denied the motion.
- Appellants refused to testify before the grand jury and were subsequently held in contempt of court by the district court.
- Appellants appealed the contempt order to the U.S. Court of Appeals for the District of Columbia Circuit.
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Issue:
Does the Ethics in Government Act of 1978, by creating an independent counsel appointed by a special court and protected from removal except for 'good cause,' violate the Appointments Clause and the constitutional separation of powers?
Opinions:
Majority - Silberman, Circuit Judge
Yes, the Ethics in Government Act violates the Appointments Clause and the constitutional separation of powers. The independent counsel is a 'principal' officer, not an 'inferior' one, because she is not subordinate to any official in the Executive Branch; therefore, her appointment by a court rather than by the President with Senate consent is unconstitutional. The Act impermissibly interferes with the President's duty under Article II to 'take Care that the Laws be faithfully executed' by stripping him of control over prosecution, a core executive function. The 'good cause' removal restriction and lack of presidential supervision violate the principle of a unitary executive, which ensures accountability. Furthermore, the Act violates Article III by assigning the Special Court non-judicial, executive duties, such as defining the prosecutor's jurisdiction and supervising the investigation, thereby blurring the critical line between judge and prosecutor.
Dissenting - Ginsburg, Circuit Judge
No, the Ethics in Government Act is a constitutional exercise of congressional power. The independent counsel is an 'inferior Officer' whose appointment may be vested in a 'Court of Law' under the Appointments Clause; where the classification is debatable, courts should defer to Congress's judgment. The Act does not violate separation of powers but rather serves as a vital 'check' on potential abuses of executive power, a goal consistent with the Constitution's overall structure. The limited displacement of executive authority is justified by the compelling governmental interest in avoiding conflicts of interest in prosecutions of high-ranking officials. The 'good cause' removal provision is a permissible restriction necessary to ensure the counsel's independence, and the Special Court's role is primarily administrative and does not constitute an unconstitutional transfer of executive supervisory power to the judiciary.
Analysis:
This D.C. Circuit decision forcefully articulated the 'unitary executive' theory, holding that core executive functions like criminal prosecution cannot be insulated from presidential control. It represented a direct constitutional challenge to the post-Watergate reforms designed to ensure accountability for high-level government officials. The court's formalistic approach, which prioritized a rigid separation of branches, set the stage for a Supreme Court showdown that would ultimately decide the fate of the independent counsel statute and shape the modern understanding of separation of powers.
