In general, it is important to have an insulated and life-tenured judiciary precisely because, as a society, we want judges to make decisions based upon the law and not based on the popular prejudices of the times. Judges have been able to wield considerable influence at critical moments in these independent counsel investigations. It is but one example of a dangerous trend whereby functions of one branch have been taken away and given to another branch, or to an entity that does not fit within one of the three delineated branches found in the Constitution. 3097, substituted “40” for “39” as chapter designation. These statements could have easily been pulled form recent headlines, but instead they all refer to the independent counsel investigation of Lawrence Walsh, including his indictment of former Defense Secretary Caspar Weinberger, only a few days before the 1992 presidential election. See id. The Attorney General is tasked with the responsibility of conducting a preliminary investigation to determine whether or not an appointment of an independent counsel is appropriate. The recent debate in Congress and in the White House centered on the alleged unfairness of the most recent investigation, and of some prior investigations. White House Trade Advisor Peter Navarro has been under investigation by the U.S. Office of Special Counsel, an independent federal watchdog agency. an independent counsel for the campaign fund-raising matter based on a narrow analysis of the independent counsel statute's triggering mechanism. The Independent Counsel Reauthorization Act of 1994, which was signed into law on June 30, 1994, amended 28 U.S.C. Judge Silberman argued that it was important to keep the judiciary from intruding into areas committed to the other branches of government because it "preserves an independent and neutral judiciary relatively removed from the decisions and activities of the other two branches. That same independent counsel was also bitterly attacked by members of the same political party as his targets for purportedly engaging in a partisan investigation that resulted in partisan indictments. S. 24 (103rd). Independent Counsel or Special Investigators. For instance, it was a panel of judges that made the decision to expand Kenneth Starr's investigation of Whitewater into the investigation centered around Monica Lewinsky. at 705. INDEPENDENT COUNSEL. The AG would run a preliminary investigation and if further probing was necessary, the AG would petition against a three judge panel to appoint an independent counsel. Justice Scalia argued that the challenge to the independent counsel is a dispute "about power" and, more specifically, about "the allocation of power among Congress, the President and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish _ `so that a gradual concentration of the several powers in the same department' can effectively be resisted." Once the Attorney General determines that an independent counsel should be appointed, three federal judges actually appoint the independent counsel and define the scope of that independent counsel's prosecutorial jurisdiction. Both political parties have now seen how an independent counsel can cause political havoc. Preliminary investigation and application for appointment of an independent counsel § 593. Independent Legal Counsel means an attorney or firm of attorneys, selected in accordance with the provisions of Section 2(d) hereof, who shall not have otherwise performed services for the Company or Indemnitee within the last three years (other than with respect to matters concerning the rights of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements). § 593 (b). in History and Government from Cornell University in 1993. https://fedsoc.org/commentary/publications/the-independent-counsel-act-an-unconstitutional-delegation-of-power-of-judges, The Independent Counsel Act: An Unconstitutional Delegation of Power of Judges, Federalism & Separation of Powers Practice Group. Duties of the division of the court § 594. . The attorney general could investigate all violations of Criminal Law other than minor misdemeanors and minor violations. Justice Scalia's thesis was that since Article II of the Constitution provides that the executive power shall be vested in a President: [T]his does not mean some of the executive power, but all of the executive power. At the time, there was not a single objection to the Walsh investigation by then Governor Clinton. at 574-81. Any records which were compiled by an independent counsel and, upon termination of the independent counsel’s office, were stored with the division of the court or elsewhere before the enactment of the Independent Counsel Reauthorization Act of 1987, shall also be transferred to the Archivist of the United States by the division of the court or the person in possession of such records. See Akhil Reed Amar, "Too Much Independence: If Special Prosecutors Are Running Amok, Blame Flaws in the Law," American Lawyer News Service, Oct. 15, 1998. § 591 (b). Congress passed the Ethics in Government Act (EGA) in 1977 to create a federal process for appointing special investigators. at 575-77. some of these independent regulatory commissions operate in such a way that they are insulated from both legislative and executive control. Even the most nominally independent agencies are still subject to political pressure from the two elected branches, at least through the appointment power and the fact that they all have fixed terms. III. * Jeremy Brooks Rosen is an Associate at Munger, Tolles & Olson LLP in Los Angeles. Under the Ethics Act, the process of appointing independent counsel began when the attorney general received information on criminal activity. § 599 by making the Independent Counsel Act "sun- set" on June 30, 1999. For instance, an attorney appointed by a governmental branch or agency to investigate on a misconduct committed within that branch or agency is an independent counsel. Reauthorized for five years by the Independent Counsel Reauthorization Act of 1987 (101 Stat. L. Rev. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) to exercise of purely executive power? § 594 (a). This sentiment has obviously begun to resonate with government officials; the act, which had been renewed by congress every five years since it was created, will expire, for lack of presidential or congressional support, at midnight on June 30, 1999. § 599, it seems unlikely that the statute will be revived in anything resembling its current form. L. 99–554, title I, § 144(g)(1), Oct. 27, 1986, 100 Stat. Justice Scalia concluded that "[t]he purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom." See Larry Bensky, "Burying Iran-Contra: President Bush's Christmas Eve pardons effectively finished off the special prosecutor," San Francisco Chronicle, January 17, 1993 at 7/Z1. Both Morrison and Mistretta are examples of the significant non-judicial powers that have been granted to an already too-powerful judiciary. Jun 30, 1994. Independent Counsel Act History: Constitutionality of the ActIntroduction to Independent Counsel Act ConstitutionalityThe Walsh investigation led many people and political interest groups to criticize the independent counsel statute. 1293, amended chapter 40 heading and analysis generally, substituting items 591 to 599 for former items 591 to 598. Today, of course, President Clinton has an entirely different point of view regarding the independent counsel position. Discharging tasks other than the deciding of cases and controversies would involve the judges too intimately in the process of policy and thereby weaken confidence in the disinterestedness of their judicatory functions." Id. However, the independent counsel statute is but one example of a larger trend that has serious ramifications for our system of government. See id. . Id. In Mistretta, the Supreme Court affirmed the constitutionality of the Sentencing Reform Act of 1984 which created the United States Sentencing Commission as an independent body in the judicial branch, with the power to legislate binding sentencing guidelines, which establish a range of sentences for all categories of federal offenses that must be imposed by courts. Authority and duties of an independent counsel § 595. Id. SKTC subsequently appointed the Independent Panel to decide how it should proceed with the appeal. Enacted by a Democratic-led Congress, the Independent Counsel Act is up for renewal next year, its prospects dimmed by a change of heart among Democrats unhappy with Kenneth Starr's four-year investigation of President Clinton. That approach ignores the broader question that should be the issue (and historically Id. This point was well made in the D.C. 1824 [2 U.S.C.A. The Act aimed to clean up American politics by creating a new ethics watchdog organization and by instituting new controls on high-ranking government officials, including financial disclosure requirements and lobbying restrictions. An attorney for another of the targets of that probe, Robert Bennett, attacked the lengthy and expensive investigation by noting that "[t]he trouble with the independent counsel's office is that there are no checks and balances… They have an unlimited budget and unlimited time. See 28 U.S.C. U.S. Const. See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). For many years, judges have been usurping traditional legislative tools, such as ordering tax increases to pay for court-mandated school improvements. See, e.g., Peter Strauss, "The Place of Agencies in Government: Separation of Powers and the Fourth Branch," 84 Colum. Relationship with Department of Justice § 598. at 512 (internal citations and quotations omitted). Article III of the United States Constitution states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." He sees himself as some sort of purist, a puritanical figure cleansing government. See In re Sealed Case, 838 F. 2d 476 (D.C. Cir. Relationship with Department of Justice. JUDICIARY AND JUDICIAL PROCEDURE, § 591. His office is an outrage." See id. The judiciary is the only unelected and unaccountable branch of government, which means that it is even more important to limit the role that the judiciary should play in political life. ``This is one issue on which the Republicans were right and we were wrong,'' said Sen. Robert Torricelli, D-N.J. ``The independent counsel statute is dead.'' § 596(a). See Douglas Frantz, "Bush policy toward Iraq emerging as possible Achilles' heel; Clinton-gore campaign seeks to transform President's foreign affairs strength into a vulnerability and undercut the benefit of the military victory in the Persian Gulf war," Los Angeles Times, October 13, 1992 at A5; Stephanie Saul, "Clinton camp praises probe; focus is on White House aides, " Newsday, December 19, 1992 at 11. 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