Zach Bastian Ad. Law 02/12/02 Morrison v. Olson Facts: The Ethics in Government Act created the position of independent counsel to investigate certain high officials of the federal government. When matters arise which may warrant such counsel, the Attorney General of the United States may investigate the allegations. If he finds reason, he may instruct the Special District Court to appoint an independent counsel. This individual may be removed only by the Attorney General upon? good cause? and the position may be terminated only by the Special District when it decides the investigation has been completed.
Upon recommendation from the Attorney General, independent counsel Alexia Morrison was assigned by the Special Division to investigate Assistant Attorney General Theodore Olson. Ms. Morrison requested that the Attorney General additionally refer her to investigate Deputy Attorney General Schmults and Assistant Attorney General Dinkins. The Attorney General denied the request. The Division decreed that the decision of the Attorney General was final, but that the terms of the act were broad enough to allow Ms. Morrison to investigate anyway as to if Olson could have conspired with Schmults and Dinkins.
Ms. Morrison had all three gentlemen subpoenaed. All three moved to have the subpoenas quashed, claiming that the independent counsel provisions of the Ethics in Government Act, that act which established the office of the independent prosecutor, were unconstitutional. Issues: 1. Is the appointment of an independent counsel, an executive branch officer, by the judicial branch unconstitutional? 2. Do the powers vested in the Special Division by the Act conflict with Article III of the Constitution? 3.
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Is the Act is invalid under the constitutional principle of separation of powers? a. Does the provision of the Act restricting the Attorney General’s power to remove the independent counsel to only those instances in which he can show ‘good cause,’ taken by itself, im permissibly interfere with the President’s exercise of his constitutionally appointed functions? b. Does the Act reduce the President’s ability to control the powers wielded by the independent counsel? Decision: 1. No.
2. No. 3. No. a. Nob.
No Reasoning: 1. Congress has Constitutional authority to give courts the power to appoint certain executive branch positions. a. The Appointments Clause of Article II allows Congress to? vest the Appointment of? inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
? b. The independent counsel is an inferior office. i. She is subject to removal by a higher executive branch official. ii.
Her duties are limited. iii. She must comply whenever possible with the policies of the Department of Justice. iv. Her jurisdiction is limited. v.
Her position is limited in tenure. c. The history of the clause does not suggest that the Framers intended to prevent Congress from having the power to provide for inter branch appointments. d. There is no inherent incongruity about a court having the power to appoint officers. 2.
Those aspects of the Special Division? s duties which are not traditionally judicial responsibilities do not constitute significant inter branch encroachments. a. The Special Division? s appointment power comes from the Appointments Clause, which is independent of Article III. b. The jurisdiction that the court decides upon are demonstrably related to the factual circumstances that gave rise to the Attorney General’s investigation and request for the appointment of the independent counsel in the case. c.
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The Division receives reports from the independent counsel, but may not approve or disapprove them, nor does it supervise the position. d. The non-judicial duty of monitoring the progress of the independent prosecutor does not present a significant judicial encroachment upon executive power. e. The power to remove the counsel is vested solely in the Attorney General, the Special Division may only terminate the division when the investigation is completed.
3. The case does not involve an attempt by Congress itself to gain a role in the removal of executive officials. a. The provision is needed for the independent counsel to do her job effectively. i. ? Quasi-legislative’ and ‘quasi-judicial’ agencies, such as the office of the independent counsel, have to be able to operate free of executive control, which includes to forbid their removal except for cause in the meantime.
ii. Although the counsel exercises discretion and judgment in deciding how to carry out her duties under the Act, the President’s need to control the exercise of that discretion is not so central to the functioning of the Executive Branch as to require that the counsel be terminable at will by the President. iii. Because the independent counsel may be terminated for ‘good cause,’ the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act. b. Congress is not allowing any branch, including itself, to encroach on the power of the executive.
i. Congress retained for itself no powers of control or supervision over an independent counsel. 1. Members of Congress can request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply. 2.
Congress’ role under the Act is limited to receiving reports or other information and oversight. ii. Congress has not attempted to give executive power to the judicial branch. 1. Under the Act the Special Division has no power to appoint an independent counsel without recommendation of the Attorney General. 2.
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Once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel. iii. The Act does not im permissibly undermine the powers of the executive branch. 1. The Attorney General is not allowed to appoint the individual of his choice. 2.
The Attorney General does not determine the counsel’s jurisdiction. 3. The Attorney General? s power to remove a counsel is limited.