ALEXIA MORRISON, INDEPENDENT COUNSEL, APPELLANT V. THEODORE B.
OLSON, ET AL.

   No. 87-1279

   In the Supreme Court of the United States

   October Term, 1987

   On Appeal from the United States Court of Appeals for the District
of Columbia Circuit

   Brief for the United States as Amicus Curiae Supporting Appellees

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Introduction and summary of argument
   Argument:
      I. The independent counsel statute unconstitutionally
         takes executive power from the President
     II. The independent counsel statute violates the
         Appointments Clause
         A. The Appointments Clause does not permit
            Congress to vest the appointment of executive
            officers in the courts of law
         B. An officer who exercises prosecutorial power,
            and who is not subordinate to anyone in the
            exercise of that power, is not an "inferior"
            officer
    III. The limitations on the removal of the independent
         counsel are inconsistent with this Court's
         decisions in Myers, Humphrey's Executor, and
         Wiener
     IV. Neither this Court's decisions nor prior federal
         practices provide precedent for vesting purely
         executive power in an officer who is appointed
         by a court and is not accountable to the President
      V. The independent counsel statute is not constitutionally
         justified by Congress's desire to eliminate
         supposed conflicts of interest in certain
         criminal investigations and prosecutions
   Conclusion

                          QUESTION PRESENTED

   The United States will address the following question:

   Whether the Ethics in Government Act of 1978 violates the
Constitution in providing for a court-appointed "independent counsel"
who is empowered to conduct criminal prosecutions but who is not
accountable to the President for the exercise of that power.

                     INTEREST OF THE UNITED STATES

   This case presents the question of the constitutionality of the
independent counsel provisions of the Ethics in Government Act of
1978, 28 U.S.C. (& Supp. III) 49, 591-598.  Those provisions require
the Attorney General to seek, and direct a special division of an
Article III court to appoint, an independent counsel to conduct
certain criminal investigation and prosecutions, free of presidential
superintendence.  The interest of the United States in this case is in
preserving an important part of the power and duty of the President to
"take Care that the Laws be faithfully executed."

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   The Constitution does not give the national government
undifferentiated power, to be used by whatever officials and to
whatever end might seem necessary and proper.  Rather, it creates a
government of limited and delegated powers, which are divided into
"'three defined categories, Legislative, Executive, and Judicial'"
(Bowsher v. Synar, No. 85-1377 (July 7, 1986), slip op. 6, quoting INS
v. Chadha, 462 U.S. 919, 951 (1983)) and which are assigned separately
to three distinct Branches of government:  "(a)ll legislative Powers"
to the Congress (Art. I, Section 1), "(t)he executive Power" to the
President (Art. II, Section 1) and "(t)he judicial Power" to the
Supreme Court and "such inferior Courts" as Congress may establish
(Art. III, Section 1).  The Constitution specifically charges the
President to "take Care that the Laws be faithfully executed" (Art.
II, Section 3).  The independent counsel statute creates an office
that lies outside this constitutional scheme.  /1/

   The tripartite structure is at "the heart of the Constitution."
Buckley v. Valeo, 424 U.S. 1, 119 (1976).  See, e.g., The Federalist
No. 47, at 301 (Madison) (C. Rossiter ed. 1961);  Id. No. 48, at 308
(Madison);  Id. No. 72, at 435 (Hamilton).  "The Framers recognized
that, in the long term, structural protections against abuse of power
were critical to preserving liberty." Synar, slip op. 14.  They
therefore made clear that the three Branches were to "be largely
separate from one another" (Buckley, 424 U.S. at 120).  Their
objective, however, was not only "to 'diffus(e) power the better to
secure liberty'" (Snyar, slip op. 6 (citation omitted)), but also to
focus responsibility and accountability for the exercise of the powers
of government.  For that reason, the Constitution vests all executive
power in "a single Person" (2 M. Farrand, The Records of the Federal
Convention of 1787, at 171 (1937) (draft of Committee on Detail)
(Farrand)) chosen by the people (Art. II, Section 1, Cls. 2-3;  Amend.
XII), thus ensuring that a readily identifiable official could be held
to account for its exercise.

   The independent counsel statute has the opposite purpose and
effect.  It seeks to insulate from accountability to any elected
official what all agree is an important part of the executive power --
the power to investigate and prosecute serious crimes allegedly
committed by certain high government officials and campaign officials.
 It vests that power in an officer who in her appointment to office,
conduct while in office, and duration in office is not accountable to
the President or, through him, to the people.  Each appointment of an
independent counsel thus creates a separate and politically
unaccountable mini-Executive Branch, of limited but important
jurisdiction, that is essentially supreme in its sphere.  The stated
justification for the statute is that personal or political loyalties
may prevent, or be perceived to prevent, the President and his
subordinates from properly discharging their duties under the
Constitution and laws.  But the statute's solution to the important
problem of misconduct by high officials is contrary to the text and
structure of the Constitution:  it diffuses and misplaces the
responsibilities the Constitution assigns to the President, and the
responsibilities it assigns to the Congress and the Judicial Branch as
well.

   By taking purely executive power from the President and giving it
to an officer not accountable to the President, the statute
contravenes Article II's vesting of the "executive Power" in the
President, absolving the President of, and disabling him from carrying
out, his duty to "take Care that the Laws be faithfully executed,"
including the duty to see that wrongdoing by high officials is
investigated and prosecuted.  By providing for judicial appointment of
the independent counsel, a purely executive and nonsubordinate
officer, the statute contravenes the Appointments Clause (Art. II,
Section 2, Cl. 2), absolving both the President and the Senate of
their responsibilities for the selection of officers of the United
States.  By insulating the independent counsel from removal except for
misconduct or incapacity, the statute contravenes established
principles recognizing the authority of the President to remove
officers who exercise purely executive power.  By creating a
prosecutor independent of the President, the statute also absolves
Congress of its special constitutional responsibility to scrutinize
the actions of high government officials, including the President.
And by handing off to the Judicial Branch the responsibility for
appointing a prosecutor, defining her jurisdiction, and overseeing her
performance, the statute threatens to squander that Branch's
invaluable resources of objectivity and detachment from political
processes.

   The possibility of personal and political conflicts of interest
does not justify this sort of patchwork improvement on the
Constitution.  Except for the President himself, any individual having
a personal or political relationship with persons who are the subjects
of an investigation or accusation is subject to personal
disqualification under existing laws and regulations, and Congress has
ample powers to take further steps to deal with such conflicts.
Congress may, for example, provide for the appointment of a special
prosecutor outside any existing department but still accountable to
the President.  And Congress may ensure a check on the President's
selection of such a prosecutor in the manner the Framers specifically
prescribed:  by making the appointment subject to the advice and
consent of the Senate.

   Conflicts of interest on the part of the President himself are
another matter entirely:  the responsibility for investigating and
prosecuting alleged offenses of high officials in the President's
Administration must remain with the President himself, where the
Constitution places it, and Congress and the people should hold him
accountable for his fulfillment of that responsibility, as they
plainly have on important occasions in the past.  The Constitution
itself makes the President both politically accountable for the
conduct of the principal officers of the Executive Branch and
responsible for investigating, removing, and prosecuting such officers
for their offenses.  The Constitution does not contemplate that the
President may be "disqualified" because of an impermissible "conflict"
between his political interest and his responsibility as Chief
Executive.  Any such "conflict" is intrinsic to the vesting of all
executive power in an elected President.

   The problem of suspected wrongdoing at the highest levels of the
Executive Branch reveals no gap in the constitutional scheme.  The
tools supplied by the Constitution to deal with this problem -- e.g.,
dismissal by the President, criminal prosecution by regular or special
prosecutors within the Executive Branch, congressional investigation,
and impeachment and its threat -- have been used with success
throughout our history.  And if elected officials and their appointees
fail to use these tools to root out wrongdoing, the people have the
ultimate capacity to discern and punish such derelictions.  Ad hoc
devices intended to give important parts of law enforcement to the
politically unaccountable do not buttress the constitutional
structure;  they dilapidate it.  In this respect, the independent
counsel statute is another attempt -- like those encountered in Synar
(use of Comptroller General as budget control mechanism), Chadha
(legislative veto), and Buckley (congressional appointment of Federal
Election Commissioners) -- to accomplish by extra-constitutional
mechanisms what those entrusted with the offices and powers created by
the Constitution are thought to lack the will to do.

                               ARGUMENT

   I. THE INDEPENDENT COUNSEL STATUTE UNCONSTITUTIONALLY TAKES
EXECUTIVE POWER FROM THE PRESIDENT

   A. Article II, Section 1, of the Constitution declares:  "The
executive Power shall be vested in a President of the United States of
America." Section 3 of the same Article then charges the President
with the corresponding duty:  "he shall take Care that the Laws be
faithfully executed." The independent counsel statute violates the
plain meaning of those words by taking an important part of the
executive power, and of the concomitant duty to see to the faithful
execution of the laws, away from the President and assigning it to a
person unaccountable to the President in her selection and her
performance and her tenure.  The statute vests executive power other
than in the President, in direct contravention of Article II, Section
1's "grant of power" (Myers v. United States, 272 U.S. 52, 151
(1926)), and relieves the President of his duty and his ability to see
to the faithful execution of the laws, in direct contravention of
Article II, Section 3.

   It is not an accident that the whole of the executive power is
vested in the President:  the purpose was to create a unitary,
vigorous, and independent Executive responsible directly to the
people.  See J.S. App. 27a;  C. Thach, The Creation of the Presidency,
1775-1789, at 70-75, 119-123, 140-160 (1969);  id. at vii
(introduction by Herbert Storing);  Strauss, The Place of Agencies in
Government:  Separation of Powers and the Fourth Branch, 84 Colum. L.
Rev. 573, 599-605 (1984).  The Framers repeatedly expressed the
importance of accountability to the people for the exercise of
executive power.  See 1 Farrand 65-67, 71-74, 96-97, 109, 254,
266-267;  The Federalist No. 68, at 411-414 (Hamilton).  They also
explained the importance of unity in the Executive as a structural
principle, which they adopted in reaction to experience with divided
executive responsibility under the Continental Congress and in the
state governments, /2/ and after rejecting several proposals that
would have diffused executive power.  /3/ Placement of the executive
power "in a single hand," Hamilton explained, was an essential
attribute of the energy that was leading character in the definition
of good government" (The Federalist No. 70, at 423, 424).  It was also
necessary to ensure the responsibility and democratic accountability
for the powers vested in the elected President, since an absence of
unity would "deprive the people of the two greatest securities they
can have for the faithful exercise of any delegated power" -- "the
restraints of public opinion" and "the opportunity of discovering with
facility and clearness the misconduct of the persons they trust" (id.
at 428-429).  See also 1 Annals of Cong. 499 (J. Gales ed. 1789)
(Madison) (referring to the "great principle of unity and
responsibility in the Executive department, which was intended for the
security of liberty and the public good").

   Explaining the importance of focused responsibility, Hamilton
observed that the Executive's "unity may be destroyed * * * by vesting
it ostensibly in one man, subject in whole or in part to the control
and cooperation of others" (The Federalist No. 70, at 424).  And James
Wilson, later a Justice of this Court, explained to the Pennsylvania
ratifying convention (2 J. Elliot, The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 480 (2d ed.
1836) (Elliot's Debates)):

         The executive power is better to be trusted when it has no
      screen.  Sir, we have a responsibility in the person of our
      President;  he cannot act improperly, and hide either his
      negligence or inattention;  he cannot roll upon any other person
      the weight of his criminality;  no appointment can take place
      without his nomination;  and he is responsible for every
      nomination he makes.

   Accord, 1 J. Wilson, Works, Lectures on Law 294-295 (1791);  J.
Story, Commentaries on the Constitution of the United States 520
(1987) (Story) (plurality in the Executive "diminishes the means, as
well as the power, of fixing responsibility for bad measures upon the
real authors").

   The vesting of the executive power entirely in the President does
not, of course, mean that the President must act personally in all
matters, or that he alone decides how executive power shall be
delegated.  "(T)he President alone and unaided could not execute the
laws" (Myers, 272 U.S. at 117), and the Constitution leaves Congress a
wide discretion in structuring the government and in assigning
particular functions to particular offices.  But because the executive
power, and the duty to take care that the laws be faithfully executed,
are vested in the President alone, any officers who are to exercise
that power must be his "subordinates" and "act for him under his
direction" (ibid.).  /4/ As Hamilton explained, executive officers
"ought to be considered as the assistants or deputies of the Chief
Magistrate * * * and ought to be subject to his superintendence" (The
Federalist No. 72, at 436).  See In re Neagle, 135 U.S. 1, 64 (1890);
United States v. San Jacinto Tin Co., 125 U.S. 273, 279-280 (1888).
/5/

   To say that every officer who does exercise executive power "ought
to be subject to (the President's) superintendence" does not eliminate
all congressional choice in the assignment of functions among the
Executive, Judicial, and Legislative Branches.  There are some
activities of government -- supervising the conduct of congressional
elections is one example -- that do not fall necessarily into only one
of the three powers, and which Congress probably could assign to more
than one of the three Branches.  /6/ And our argument in this case
does not require that the President's power of "superintendence"
entail, in every case, the power of appointment to office and plenary
power of direction while in office and plenary power of removal from
office, especially in the case of officers whose functions are not
purely executive.  /7/ That issue is not in this case.  What Congress
may not do is to establish an Executive Branch office to carry out
functions that are inescapably executive, but wholly eliminate
presidential superintendence, providing for the office to be filled by
a person who is not appointed by the President or his subordinates,
not subject to their direction while in office, and not removable
except for misconduct or incapacity.  /8/ As we now explain, that is
precisely what Congress has done in the independent counsel statute.

   B. 1. As appellant concedes (Br. 52), "criminal prosecution is
indisputably an 'executive' -- as opposed to a 'legislative' or
'judicial' -- function." This Court has so ruled on numerous
occasions.  See, e.g., Heckler v. Chaney, 470 U.S. 821, 832 (1985);
Buckley, 424 U.S. at 138;  United States v. Nixon, 418 U.S. 683, 693
(1974);  Springer v. Philippine Islands, 277 U.S. 189, 202 (1928);
Ponzi v. Fessenden, 258 U.S. 254, 262 (1922);  Wilcox v. Jackson, 38
U.S. (13 Pet.) 498, 513 (1839).  /9/ See also S. Rep. 95-170, 95th
Cong., 1st Sess. 5 (1977) ("The responsibility for law enforcement is
placed upon the executive branch of the Federal Government.").  The
decision whether to bring a prosecution in a particular case has long
been recognized to lie within the discretion of the Executive Branch
and not to be subject to judicial control.  See Nixon, 418 U.S. at
693;  United States v. Thompson, 251 U.S. 407, 415 (1920);
Confiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1869);  United States
v. Cox, 342 F.2d 167 (5th Cir.) (en banc), cert. denied, 381 U.S. 935
(1965);  see also Ullman v. United States, 350 U.S. 422 (1956)
(immunity decisions);  Ex parte United States, 287 U.S. 241 (1932).
/10/

   The decisions of an independent counsel require the exercise of the
sort of policy discretion that is the very essence of the execution of
the laws.  Cf. Synar, slip op. 16-17.  A prosecutor must decide not
only the strength of a particular case but also "the prosecution's
general deterrence value, the Government's enforcement priorities, and
the case's relationship to the Government's overall enforcement plan."
Wayte v. United States, 470 U.S. 598, 607 (1985).  A prosecutor must
decide what position to take on unresolved issues of law and how such
positions would affect other litigating positions.  See United States
v. Mendoza, 464 U.S. 154, 160-161 (1984).  Decisions whether to bring
charges against a particular person, what charges to bring, and what
sentences to recommend routinely involve value judgments about the
seriousness of particular offenses.  A prosecutor may also have to
make policy decisions about whether a prosecution, or particular
charges or information, should be pursued in light of the effect on
matters such as national security, foreign policy, or economic policy.
 These and other discretionary policy judgments must be made at all
stages of a prosecution, from the initiation of an investigation
through the recommendation of a sentence.  See Common Cause (CC) Br.
8.  /11/

   2. The independent counsel statute divests an important part of
this power and responsibility for criminal law enforcement from the
President and his subordinates, and transfers it to a person who is
selected and appointed by a court and who is not accountable to the
President for the decisions she makes once in office.  The statute
provides that an "appropriate" independent counsel is to be selected
and appointed by a Special Division of the District of Columbia
Circuit.  28 U.S.C. 49, 593(a).  The independent counsel is then
vested with "all investigative and prosecutorial functions and powers"
of the Attorney General (except for certain wiretap-approval
authority), including the power to appoint staff and to demand
assistance from the Department of Justice.  28 U.S.C. 594(a), (c), and
(d).  Once a matter is in the hands of an independent counsel, the
Department of Justice is directed to "suspend all investigations and
proceedings regarding such matter," except insofar as the independent
counsel directs.  28 U.S.C. 597(a), 594(d).

   In exercising her authority, the independent counsel is supposed to
be "truly independent" (S. Rep. 95-170, supra, at 70).  While she is
directed to follow Department of Justice policy generally, she is
excused from doing so "where not possible" (28 U.S.C. 594(f)), and no
one may second-guess her discretionary decisions on that score.  /12/
She may be removed, except by impeachment, only for "good cause,
physical disability, mental incapacity, or any other condition that
substantially impairs the performance of such independent counsel's
duties" (28 U.S.C. 596(a)(1)), a standard that Congress intended to
permit removal only for "misconduct" (H.R. Conf. Rep. 100-452, 100th
Cong., 1st Sess. 37 (1987)).  All parties agree that those provisions
were designed to ensure independence from the entire Executive Branch,
including the President.  See id. at 37 ("(t)he 'good cause' removal
standard is at the heart of the statutory mechanisms protecting the
independent counsel's ability to act independently of the President's
direct control");  S. Rep. 95-170, supra, at 65-66 ("(t)he entire
purpose of appointing * * * (an independent counsel) is to get someone
who is independent * * * from the President and the Attorney
General");  S. Rep. 97-496, 97th Cong., 2d Sess. 2 (1982).

   The statutory text and legislative history thus make clear that the
independent counsel is in no sense a subordinate of or accountable to
the President.  It is the court that determines which individual, with
what experience, outlook, and judgment, would be an "appropriate"
person to exercise the power of criminal prosecution.  Once appointed,
the independent counsel is essentially supreme in her sphere.  And to
whatever extent she is not supreme, an independent counsel is in
significant respects subordinate and accountable more to the Judicial
Branch than to the President.

   The independent counsel owes her selection and appointment to the
Special Division in the first place.  She also owes her grant of
jurisdiction to the Special Division:  the Division is not bound by
the Attorney General's proposal for the scope of the independent
counsel's authority, but defines her jurisdiction itself.  28 U.S.C.
593(b);  see S. Rep. 95-170, supra, at 64.  /13/ In addition, the
Special Division has the authority to terminate an appointment on its
own motion on the ground that the investigation is fully or
substantially complete (28 U.S.C. 596(b)(2)), a provision that is
"intended to deal with situations where (an independent counsel) is
attempting to prolong his office beyond the time it is really needed"
(H.R. Rep. 95-1307, 95th Cong., 2d Sess. 11 (1978)).  Also, before
terminating her office, the independent counsel must file a report
with the Special Division setting forth "fully and completely" the
work of her office and the reasons for any decision not to prosecute
(28 U.S.C. 595(b)(2)).  Finally, if an independent counsel is removed
from office by the Attorney General, she may obtain review of the
removal, and possibly reinstatement, from a federal district court
(Section 2, 101 Stat. 1305, to be codified at 28 U.S.C. 596(a)(3)).

   This close relationship to the Judicial Branch highlights the
absence of accountability to the President.  Moreover, the degree of
subservience to the Judicial Branch hardly comports with the
prohibition on even modest inter-Branch encroachments that is
established by Synar, Buckley, and Myers.  And to the extent that the
various functions assigned to the courts create, in practice, a
"superintending" relationship between them and the independent
counsels, that function is inconsistent with the long-standing
restriction of Article III courts to the deciding of cases and
controversies and various ancillary functions.  See pp. 23-24, infra;
J.S. App. 74a-87a;  Chandler v. Judicial Council of the Tenth Circuit,
398 U.S. 74, 85 (1970) (court may keep its "own house in order").

   3. Appellant and her amici argue (e.g., App't Br. 18-19, 48;  Walsh
Br. 12, 24) that the independent counsel statute is nevertheless
rendered valid by the fact that no appointment can be made unless the
Attorney General requests one (28 U.S.C. 593(b)), apparently
suggesting some sort of waiver of Executive Branch rights.  But apart
from the fact that Article II does not allow the President to waive
either his executive power or his duty to take care that the laws are
faithfully executed, /14/ there is no voluntary waiver under the
relevant provision of the Ethics in Government Act.  Contrary to the
suggestion of appellant (Br. 18-19) and some of her amici (e.g., H.R.
Spkr. Br. 14;  ABA Br. 11), the Attorney General's decision to request
an appointment in a case like this one, although not subject to
judicial review (Nathan v. Smith, 737 F.2d 1069 (D.C. Cir. 1984)), is
mandated by statute.  In specified circumstances, the Attorney General
"shall conduct" a preliminary investigation (28 U.S.C. (Supp. III)
591(a)), and he "shall apply" for an appointment if the standard for
doing so is met -- if he finds "reasonable grounds to believe that
further investigation or prosecution is warranted" or he cannot find
the contrary after a specified time (28 U.S.C. 592(c)(1)).  /15/ These
legal obligations could be viewed as discretionary only on the cynical
view that a duty that is not judicially enforceable is no duty at all.

   II. THE INDEPENDENT COUNSEL STATUTE VIOLATES THE APPOINTMENTS
   CLAUSE

   The Appointments Clause of the Constitution (Art. II, Section 2,
Cl. 2) is not a mere matter of "etiquette or protocol" (Buckley, 424
U.S. at 125).  It is an essential aspect of the separation of powers
that is "woven into the (Constitution)" (id. at 124).  It enables the
President "to take Care that the Laws be faithfully executed" through
the appointment, for which he is politically accountable, of the
officers who help him execute the laws.  /16/

   As the court of appeals ruled, the independent counsel statute
contravenes the Appointments Clause in two ways.  First, an officer
who exercises prosecutorial power in an important class of cases, and
who is not subordinate to any superior in the exercise of that power,
cannot be an "inferior" officer and hence must be appointed by the
President with the advice and consent of the Senate.  Second, even
inferior officers who exercise executive power must be appointed by
the President or by a head of department appointed by him.  These two
points are closely related aspects of a single larger point:  the duty
of the President to "take Care" means that he, with the help of the
Senate in certain cases and acting on his own or through his heads of
departments in others, is responsible and accountable to the people
for selecting those persons who will exercise significant authority in
executing the law.  The Appointments Clause was meant to implement
that presidential responsibility, not to fragment it.

   A. The Appointments Clause Does Not Permit Congress to Vest the
Appointment of Executive Officers in the Courts of Law

   The Appointments Clause, which deals with appointments of both
Executive and Judicial Branch officers, says that Congress may vest
the appointment of inferior officers "in the President alone, in the
Courts of Law, or in the Heads of Departments." But only a reading
blind to the constitutional context would allow Congress to vest the
appointment of any inferior officer in any of those authorities.  As
this Court said in Myers, 272 U.S. at 117, and repeated in Buckley,
424 U.S. at 135:

         "(T)he President alone and unaided could not execute the
      laws.  He must execute them by the assistance of subordinates.
      * * * As he is charged specifically to take care that they be
      faithfully executed, the reasonable implication, even in the
      absence of express words, was that as part of his executive
      power he should select those who were to act for him under his
      direction in the execution of the laws."

   The essential role of appointments in the President's fulfillment
of his constitutional duties thus compels the obvious alternative
reading of the Appointments Clause -- that Congress could empower the
President or heads of executive departments to appoint inferior
executive officers, while the courts of law could be authorized to
appoint inferior judicial officers.  That reading is also compelled by
the history of the Clause.  /17/

   1. The reference to "Courts of Law" in the Appointments Clause is
what permits Congress to authorize the courts to appoint their own
inferior officers, as they have been authorized to do with the clerks
of court since 1789.  See Judiciary Act. of 1789, ch. 20, Section 7, 1
Stat. 76;  Ex parte Hennen, 38 U.S. (13 Pet.) 230, 257-258 (1839);  28
U.S.C. 671(a), 711(a), 751(a);  see also 28 U.S.C. 631(a) (court
appointment of magistrates).  To read the reference as also allowing
judicial appointment of executive officers would run counter to the
structure of the Constitution as a whole and of the Clause in
particular.  The separation of powers is so fundamental to the
constitutional plan (see The Federalist No. 47 (Madison)) that the
Appointments Clause should not be construed to permit one Branch to
play a formal role in the selection or removal of the officers of
another Branch that the Constitution does not explicitly authorize.
See Synar, slip op. 6-8;  1 Annals of Cong. 462 (Madison's argument
for not extending the Senate's advice-and-consent role to removals);
Myers, 272 U.S. at 122-123;  cf. Buckley, 424 U.S. at 127;  Chadha,
462 U.S. at 955-956.  Moreover, the Clause itself is written to
establish presidential appointment, with Senate consent, as the
general rule -- applicable to appointment of not only the Justices of
this Court and "Ambassadors, other public Ministers and Consuls" but
also "all other Officers of the United States, whose Appointments are
not herein otherwise provided for" (Art. II, Section 2, Cl. 2).  This
general rule emphatically affirms the principle of presidential
responsibility for the appointment of every officer of the Executive
Branch other than the President himself and the Vice President.  The
inferior officer portion of the Appointments Clause, as a subsidiary
clause addressing matters of detail, should not be read to impair that
fundamental principle.

   2. The history of the Appointments Clause belies the notion that
the inferior officer portion was intended to do anything so
extraordinary as allow for judicial appointment of exeuctive officers.
 That portion of the Clause was added at the end of the Constitutional
Convention and with little discussion.  After much debate about the
mode of appointments generally, the Committee on Style reported on
September 12, 1787, what is now the first portion of the Clause (2
Farrand 599), which provides for presidential appointment and Senate
confirmation of all officers and which, of course, would not allow
courts to appoint executive officers.  On September 15, 1787, the
final working day of the Convention, the inferior officer provision
was added (id. at 627-628) as one of a number of rapidly considered
changes in the document (id. at 621-633).

   The origins of this last-minute addition suggests a modest
objective.  Earlier, George Mason had complained that requiring Senate
confirmation of all appointments, even of the "smallest" offices,
would be "unwieldy (and) expensive" (2 Farrand 537).  Rufus King had
responded that he "did not suppose it was meant that all the minute
officers were to be appointed by the Senate, or any other original
source, but by the higher officers of the departments to which they
belong" (id. at 539 (emphasis added)).  On September 15, Gouverneur
Morris made the proposal to add the inferior officer clause, without
explanation but presumably in order to resolve any uncertainty on this
point (id. at 627).  Like King before him, Madison suggested the
addition might be unnecessary:  "It does not go far enough if it be
necessary at all -- Superior Officers below Heads of Departments ought
in some cases to have the appointment of the lesser offices" (ibid.).
Morris responded that "(t)here is no necessity" for going even
further, because "Blank Commissions can be sent" (presumably by the
President or department head) (ibid.).  After the proposal was
initially rejected by an equally divided Convention (id. at 627-628),
"(i)t was urged that it be put a second time, some such provision
being too necessary, to be omitted";  the proposal was then adopted
(ibid.).  Nothing in this history suggests any intent except to
relieve the Senate and even the President of the burden of appointing
lesser officers;  certainly this history does not remotely suggest an
intent to permit the Judicial Branch to appoint Executive Branch
officers, in derogation of the responsibility of both of the political
Branches.

   The discussion of the history of the Clause by amicus Senate (Br.
32-37) confirms this conclusion.  While, from the beginning of the
Convention, "(t)he matter of the appointment of officers of the new
Federal Government was repeatedly debated" (Buckley, 424 U.S. at 271
(White, J., concurring in part and dissenting in part)), the debate
focused on who should appoint the Judiciary and Ambassadors.  The
question of who should appoint the members of the unelected Branch
plainly presented a special problem.  And the debate over who should
appoint Ambassadors (and other foreign ministers) was part of a larger
debate over the Senate's role in foreign affairs;  that debate was
itself not resolved until the end of the Convention, when the Framers
settled on appointment-confirmation and treaty-ratification roles for
the Senate (Art. II, Section 2, Cl. 2), roles smaller than the more
prominent role in foreign affairs (making treaties and appointing
Ambassadors) the Convention had previously considered for the Senate.
/18/ In all the discussion, however, no one ever suggested that courts
might be allowed to appoint executive officers.  Nor did the
Convention ever consider adopting any proposal that would have vested
the power to appoint executive officers (other than foreign ministers)
anywhere but in the Executive Branch itself.  Indeed, from Madison's
resolution of June 1 (1 Farrand 67), through Resolution 9 of the
Committee on the Whole of June 13 (id. at 236), through the draft of
the Committee on Detail of August 6 (2 Farrand 185), and the report of
the Committee on Style of September 12 (id. at 599), the working
documents of the Convention expressly provided for executive
appointment of all executive officers (excepting foreign ministers).

   3. The early post-Convention historical evidence of the Framers'
intent confirms that the Appointments Clause was not meant to
authorize judicial appointment of executive officers.  Madison, in The
Federalist No. 51 (at 321), stated one basic principle:  "each
department should have a will of its own;  and consequently should be
so constituted that the members of each should have as little agency
as possible in the appointment of the members of the others."
Hamilton, in The Federalist No. 72 (at 435-436), stated the
correlative principle:  executive officers "ought to be considered as
the assistants or deputies of the Chief Magistrate, and on this
account they ought to derive their offices from his appointment." /19/
The "Federal Framer" explained during the ratification debates that
"judges, and principal officers in the departments will be well
informed men in their respective branches of business;  that they
will, from experience, be best informed as to fill inferior offices in
them;  that they will feel themselves responsible for the execution of
their several branches of business, and for the conduct of the
officers they may appoint therein." 2 H. Storing, The Compleat
Anti-Federalist 308 (1981).  Justice Story's discussion of the
Appointments Clause in his 1833 commentary on the Constitution
likewise contains no suggestion that he believed the Clause could be
used to support such appointments (Story 563-567).  /20/ In Ex parte
Hennen, 38 U.S. (13 Pet.) at 257-258, this Court explained:  "The
appointing power here designated, in the latter part of the (Clause),
was no doubt intended to be exercised by the department of the
government to which the officer to be appointed most appropriately
belonged." None of these discussions of the inferior officer clause,
nor any other explanation that appellant and her amici have unearthed
from the period, states anyone's belief that the Clause authorizes
judicial appointment of executive officers.

   4. The Framers' commitment to an independent judiciary, expressed
in the constitutional protection of tenure during good behavior (Art.
III, Section 1), further demonstrates the anomalous nature of a
reading of the Appointments Clause that would permit judicial
appointment of executive officers.  Beginning in 1792, this Court and
its members have steadfastly rejected attempts to assign to the court
"executive or administrative duties of a nonjudicial nature" (Buckley,
424 U.S. at 123).  See, e.g., Muskrat v. United States, 219 U.S. 346
(1911);  United States v. Ferreira, 54 U.S. (13 How.) 40 (1851);
Hayburn's Case, 2 U.S. (2 Dall.) 409 (1791).  /21/ In this, the Court
has accurately reflected the Framers' vital concern that the judiciary
remain independent from the other Branches.  See, e.g., 1 Farrand
98-99 (rejecting judicial participation in Council of Revision);  2
id. at 298;  The Federalist No. 47, at 302 (Madison) (quoting
Montesquieu:  "'(t)here can be no liberty' * * * 'if the power of
judging be not separated from the legislative and executive powers'");
 The Federalist No. 78, at 466 (Hamilton) (same).  The power to select
executive officers -- particularly, those officers who are authorized
to investigate and prosecute politically sensitive crimes -- not only
intrudes upon the President's responsibilities, but might also, as
then-Professor Frankfurter said of the courts giving advisory
opinions, "involve the judges too intimately in the process of policy
and thereby weaken confidence in the disinterestedness of their
judicatory functions." 1 Encyclopaedia of the Social Sciences 478
(1980).  Judicial power to appoint executive officers would thus stand
in stark contrast to the Framers' vision of an independent judiciary,
and that power should not be inferred in the absence of any evidence
that such power was intended.

   B. An Officer Who Exercises Prosecutorial Power, and Who is not
Subordinate to Anyone in the Exercise of That Power, is not an
"Inferior" Officer

   The Appointments Clause requires presidential appointment and
Senate confirmation of all except "inferior Officers." That
requirement was intended to ensure accountability to the people --
through both political Branches -- for the appointment of those
officers of the United States who are vested with primary
responsibility for exercising the executive and judicial powers and
thereby affecting the lives, liberty, and property of the people.  The
independent counsel statute violates that requirement because it vests
complete and final authority to exercise the governmental power that
most dramatically affects people -- the power to bring a criminal
prosecution -- in a person who is not accountable to the people
through either political Branch.  Compare The Federalist No. 65, at
398 (Hamilton).  The various interpretations of the term "inferior"
advanced by appellant and her amici fail to come to grips with this
fundamental defect.

   1. Appellant first proposes (Br. 31-32) that all officers except
those expressly named in the first portion of the Appointments Clause
-- Supreme Court Justices, ambassadors, and other public ministers and
consuls -- are inferior officers, but that proposal encounters a sea
of troubles.  First, it ascribes no sensible meaning at all to the
word "inferior":  for example, it makes the Secretary of State, who is
not named, "inferior" to the ambassadors who report to him.  Second,
it would render department heads inferior officers, contrary to
Congress's consistent practice and the First Congress's specific view
of the matter (J.S. App. 12a n.8).  Third, it would apparently allow
Congress to vest in a single department head the authority to appoint
all of the other department heads in the President's Branch -- and in
a single court all federal judges except the Justices of this Court.
There is no indication in the history of the inferior officer portion
of the Clause that this last-minute addition was intended to displace
the carefully worked-out provision for presidential nomination and
Senate confirmation of the principal officers of the government.

   2. Amicus Walsh seeks to avoid those difficulties by suggesting
(Br. 10) that an inferior officer is any officer not "'specially
mentioned'" (quoting United States v. Germaine, 99 U.S. 508, 510
(1879)) in the Clause as a whole, i.e., all officers except Justices
and ambassadors, etc., to which Amicus Walsh adds (ibid. (footnote
omitted)) "'those officers in whom respectively the power of
appointment may be vested -- the President, the courts of law, and the
heads of departments.' Collins v. United States, 14 Ct. Cl 568, 574
(1879)." This view seeks to establish a different "bright line" (Walsh
Br. 12) that avoids the grosser anomalies of appellant's initial
proposal.  But the Walsh proposal uses the text merely for convenience
-- and imprecisely at that -- while ignoring its purpose.

   Nothing in the Clause or the history of its drafting suggests that
the expression "inferior Officers" was supposed to mean precisely all
those not named in either the first or second portion of the Clause.
The purpose of the second portion of the Clause was to designate
permissible appointing authorities for certain subsidiary officers,
not to list "specially mentioned" officers requiring presidential
nomination and Senate confirmation.  Indeed, amicus Walsh's ingenious
proposal could work only by ignoring the difference between "Courts of
Law," which are authorized to be given appointing authority, and
federal judges, who (except for the Justices of this Court) are not
specially mentioned in the Appointments Clause at all.  For this
reason, contrary to the statements of amicus Walsh and the Collins
court (Br. 10), individual federal judges may not be granted authority
to appoint officers (though they may hire employees).  Conversely,
federal judges themselves are principal officers who must be appointed
by the President with Senate confirmation;  but the reason is not that
they are specially mentioned, which (except for Justices of this
Court) is not the case, but that they have tenure protection and are
not subordinate or accountable to anyone in the performance of their
duties, although the decisions of the courts on which they sit are
reviewable.  Hennen, 38 U.S. (13 Pet.) at 258;  Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 n.10 (1982)
(plurality).  Appellant likewise has tenure protection and is not
subordinate.

   3. Appellant offers (Br. 33-35) yet another reading of the term
"inferior Officers," which would include those of lesser "rank,"
"status," or "importance" -- to be determined by examining their
compensation, the scope of their duties, and their tenure, but not
their place in the decision-making hierarchy.  As amicus Walsh points
out (Br. 12 (citation omitted)), this proposed test is "fuzzy,"
"amorphous," and "vague" and employs "'criteria of decision that
necessar(il)y escap(e) the judicial grasp.'" Also, if an officer
wields final governmental authority and is essentially supreme in her
sphere, it is at the very least awkward to say that that officer is
"inferior" just because her job is of limited scope and duration
(perhaps even limited to a single case).  Certainly as far as the
people affected by the exercise of her power are concerned, she is not
inferior in any meaningful sense.  Moreover, appellant's test would,
for appointment purposes, allow Congress to shatter the Executive
Branch into a thousand small offices, each of limited scope (and
perhaps short term and relatively low pay), and provide that each
would be filled without presidential nomination and Senate consent.
This is not the way the Framers intended the Executive Branch to be
formed.

   4. The root difficulty with all these proposals is that their
objective is to make it possible for an officer to be "inferior"
without being subordinate to any "superior" in the exercise of her
powers.  Though subordinacy is not a sufficient condition to establish
that one is an "inferior officer," it surely is a necessary condition.
 A person who exercises sufficient governmental authority to be an
"officer" (see Buckley, 424 U.S. at 126-127) and who is supreme in her
sphere cannot in fairness or ordinary usage be described as an
"inferior officer." /22/

   That subordinacy is a necessary condition for inferiority within
the meaning of the Appointments Clause is indicated by this Court's
repeated references to subordinacy in speaking of "inferior Officers."
See Nixon, 418 U.S. at 694;  United States v. Eaton, 169 U.S. 331, 343
(1898);  Germaine, 99 U.S. at 511;  United States v. Hartwell, 73 U.S.
(6 Wall.) 385, 392-395 (1868);  see also Collins v. United States, 14
Ct. Cl. 568, 574 (1879).  It is also confirmed by the Constitution's
authorization to create "inferior Courts" (Art. III, Section 1), which
was almost certainly understood to contemplate a closely related sort
of subordinacy -- i.e., that their decisions would be subject to
review by this Court (with "Exceptions").  Hamilton, in The Federalist
No. 81, twice described the "inferior Courts" as "subordinate" to the
Supreme Court (id. at 485 n.*, 490).  There is no reason to think the
Framers used a different concept in the Appointments Clause from what
they used in Article III.  /23/

   Taken together, appellant's contentions that an officer exercising
discretionary executive power can be inferior without being
subordinate, and can be appointed by a court of law, would rend the
constitutional design.  The Framers deliberately provided for
presidential nomination with the safeguard of Senate confirmation as
the general rule because they believed that method of appointment
would help ensure responsible and politically accountable selection of
those officers with primary authority in the administration of the
laws.  See The Federalist No. 76, at 457 (Hamilton).  It would
seriously undermine this judgment to permit Congress to avoid this
mechanism by providing, as Congress has done in the independent
counsel statute, for judicial appointment of an officer who, once
appointed, would not be subordinate to any other executive officer,
including the President, and hence would have the sort of final
decision-making authority that renders presidential nomination and
Senate confirmation most important.  /24/ An independent counsel has a
truly separate fiefdom that is autonomous in its congressionally
assigned sphere and that displaces the Branch headed by the President.
 She is in no sense "inferior" even to the President.

   III. THE LIMITATIONS ON THE REMOVAL OF THE INDEPENDENT COUNSEL ARE
INCONSISTENT WITH THIS COURT'S DECISIONS IN MYERS, HUMPHREY'S
EXECUTOR, AND WIENER

   Even if the independent counsel were properly appointed, it would
not be permissible to limit so severely the President's power to
remove her, denying that power altogether except for misconduct or
incapacity.  The duties of an independent counsel are purely executive
in nature, and they therefore can be performed only by an officer who
is accountable to the President.  Whatever limits Congress may
constitutionally impose on the President's various means of holding
other officers to account, it may not deny his power to remove purely
executive officers like an independent counsel.

   A. This Court said in Myers that the Constitution confers on the
President the unrestricted power to remove officers who were appointed
by him with the advice and consent of the Senate and who carry out his
responsibility for the faithful execution of the laws.  The Court
regarded this power of removal as an element of the "executive Power"
that is essential to the President's fulfillment of his obligation to
take care that the laws be faithfully executed.  272 U.S. at 162-164,
177.

   In Humphrey's Executor v. United States, 295 U.S. 602 (1935), the
Court, while not questioning the result in Myers, held that the
Constitution does not bar Congress from imposing limitations on the
President's ability to remove a member of a commission (the Federal
Trade Commission) that was charged by Congress with the exercise of
certain "quasi-judicial" and "quasi-legislative" functions (295 U.S.
at 628-629).  /25/ After it "carefully emphasized" (Buckley, 424 U.S.
at 133, citing 295 U.S. at 625-626) that the Commissioner was
appointed by the President with Senate consent, the Court reasoned
that Congress has the authority to create such bodies and to require
them to act independently of executive control in the discharge of
their duties, and that this authority "includes, as an appropriate
incident, power to fix the period during which they shall continue in
office, and to forbid their removal except for cause in the meantime"
(id. at 629).  The Court stressed its view that the FTC was "wholly
disconnected (with) the executive department" (id. at 630) and
"exercise(d) no part of the executive power vested by the Constitution
in the President" (id. at 628).  /26/ The Court expressly did not
disturb the decision in Myers insofar as it sustained the President's
"illimitable power" (id. at 627-629) to remove "purely executive"
officers (id. at 631, 632), such as the postmaster in Myers, who was
"an executive officer restricted to the performance of executive
functions" (id. at 627).

   The court reached a similar result in Wiener v. United States, 357
U.S. 349 (1958), which also involved officers appointed by the
President with Senate consent.  Noting that Humphrey's Executor had
disapproved the broad dicta in Myers concerning the constitutional
power of the President to remove members of "quasi-judicial" bodies
(357 U.S. at 352), the Court held that Congress likewise could limit
the power of the President to remove members of the War Claims
Commission, in view of the "intrinsic judicial character" of the
Commission's duties (id. at 355).  As in Humphrey's Executor, the
Court expressly did not disturb the decision in Myers as regards the
President's "illimitable" power to remove "'all purely executive
officers'" (id. at 352 (quoting 295 U.S. at 626-627)).

   B. The independent counsel's responsibilities are wholly different
from those at issue in Humphrey's Executor and Wiener.  The
independent counsel does not exercise "quasi-legislative" or
"quasi-judicial" power or have duties of an "intrinsic judicial
character." In the Constitution's language, her sole job is to
"execute" the criminal law, a duty the Constitution vests in the
President, and no one, therefore, can be more a "purely executive"
officer than she.  This conclusion is reinforced by the character of
the functions and offices that the independent counsel supplants.  Cf.
Chadha, 462 U.S. at 952-953.  The independent counsel is vested with
full authority, in connection with the alleged crimes under her
jurisdiction, "to exercise all investigative and prosecutorial
functions and powers of the Department of Justice, the Attorney
General, and any other officer or employee of the Department of
Justice" (28 U.S.C. 594(a)).  The Attorney General, as the chief
federal prosecutor and the head of an executive department, must serve
only at the pleasure of the President.  Within her jurisdiction, an
independent counsel is the chief federal prosecutor and the head of
the Attorney General's Department.  Accordingly, she too must serve at
the pleasure of the President (or of someone, such as the Attorney
General, who so serves).  See Chabal v. Reagan, No. 87-5751 (3d Cir.
Mar. 14, 1988), slip op. 5-7, 8-10 (United States Marshals are "purely
executive officers" who may be removed by the President at will);
Morgan v. TVA, 115 F.2d 990 (6th Cir. 1940), cert. denied, 312 U.S.
701 (1941) (head of TVA removable at will).

   We emphasize that the removability of members of "independent
agencies" presents a quite different question.  First, those officers
are appointed by the President with Senate consent, so the question in
those cases is not one of total elimination of accountability to the
President.  Second, Congress has specifically withheld from those
agencies the purely executive power of criminal law enforcement.  /27/
Third, those agencies, unlike independent counsels, frequently carry
out specific adjudicatory, information-gathering, and other functions
that may not be uniquely assignable to the Executive Branch.  Fourth,
the statutory provisons that insulate members of independent agencies
from removal at will by the President vary considerably and might be
interpreted to include disobedience to a presidential directive on a
matter within the President's authority as a ground for removal and
thus to impose barriers significantly lower than "misconduct" (see p.
13, supra).  /28/ The Court need not address the significance of those
distinctions here:  the constitutionality of independent agency
removal arrangements is neither at issue nor at stake in this case.

   IV. NEITHER THIS COURT'S DECISIONS NOR PRIOR FEDERAL PRACTICES
PROVIDE PRECEDENT FOR VESTING PURELY EXECUTIVE POWER IN AN OFFICER WHO
IS APPOINTED BY A COURT AND IS NOT ACCOUNTABLE TO THE PRESIDENT

   Appellant and her amici seek support for the independent counsel
statute in certain judicial decisions, particularly Ex parte Siebold,
100 U.S. 371 (1880).  But neither Siebold nor any other decision of
this Court holds that a court may appoint an executive officer, much
less one who is not accountable to the President.  Nor have appellant
and amici identified any other instance in which Congress has even
attempted to transfer purely executive power, such as criminal law
enforcement authority, to such an officer.

   A. Siebold arose under an Act of Congress that authorized a federal
court to appoint election supervisors to help preserve the integrity
of congressional elections.  Several state officials were convicted of
violating a prohibition against interfering with the supervisors in
the performance of their official duties.  The defendants' principal
contention in this Court was that Congress's power to regulate the
election of Representatives (Art. I, Section 4) did not permit it to
displace state regulation only partially -- i.e., that Congress had to
do so completely or not at all.  Most of the Court's opinion (100 U.S.
at 382-397) is devoted to rejecting that contention.

   The defendants also argued that Congress could not constitutionally
authorize judicial appointment of the election supervisors.  In a
brief discussion (100 U.S. at 397-398), the Court rejected that
contention as well.  The Court explained that it "is no doubt usual
and proper to vest the appointment of inferior officers in the
department of the government, executive or judicial, or in that
particular executive department to which the duties of such offices
appertain" (id. at 397).  But the Court said that there is "no
absolute requirement to that effect" in the Appointments Clause and
that "it would be difficult in many cases to determine to which
department an office properly belonged" (ibid.).  Accordingly, the
Court stated that "the selection of the appointing power, as between
the functionaries named, is a matter resting in the discretion of
Congress" (id. at 397-398), although it also stated that the principle
of Hennen -- that the Appointments Clause was intended to allow
appointment by the Branch to which the official to be appointed "'most
appropriately belonged'" (100 U.S. at 398 (citation omitted)) --
"express(ed) the law or rule by which (Congress's power to select the
appointing authority) should be governed" (ibid.).  Without endorsing
the defendants' characterization of the election supervisors' duties
as "entirely executive in character" (id. at 397), the Court sustained
their appointments:  it concluded that there was no "incongruity" in
court appointment of the supervisors and that neither the President
nor the head of a department would have been equally suited to the
task (ibid.).

   Siebold does not answer the Appointments Clause challenge to the
independent counsel statute (or even address the basic Article II
challenge).  First, the decision has no bearing on the question
whether an independent counsel can be an inferior officer, because the
case involved no question of whether the election supervisors were
inferior officers.  /29/ Second, on the question of judicial
appointment of executive officers, the decision does not stand for the
proposition that a federal prosecutor, such as an independent counsel,
may be appointed by a court.

   Siebold concerned borderline, hard-to-classify officers whose
functions were held not incongruous with judicial appointment and were
not uniquely within the province of the Executive Branch.  The only
duty of the election supervisors actually at issue in the case was
quite limited:  at the time the defendants interferred, the
supervisors were entering the voting room at the beginning of the day
to see if the ballot box was empty (100 U.S. at 378, 379).  Even the
duties of the supervisors that were not at issue (e.g., checking
voters against registration lists, securing ballot boxes, and
reporting irregularities to the chief supervisor and Congress) were
essentially investigative in nature and were both minimally intrusive
and closely related to the task of protecting against election fraud.
Since, as the Court explained, "it must be remembered that we are
dealing only with the subject of election of representatives to
Congress" (id. at 393), those functions could have been performed
directly by Legisiative Branch officers, pursuant to the power of each
House to judge its own elections (Art. I, Section 5, Cl. 1).  /30/ See
Buckley, 424 U.S. at 137-138;  Barry v. United States ex rel.
Cunningham, 279 U.S. 597, 616 (1929).  That Congress may, without
incongruity, direct the courts to appoint officers to assist in the
performance of a legislative function, especially one that is
"judicial in character" (id. at 613), does not suggest that Congress
may transfer from the Executive Branch to the courts the power to
appoint purely executive officers who carry out the President's
duties.

   The analysis in Buckley underscores the distinction between Siebold
and this case.  The Court in Buckley applied the Appointments Clause
by examining the functions of the Federal Election Commission, and it
concluded that compliance with the Clause was simply irrelevant to the
validity of any functions that Congress could have assigned to someone
who was not appointed in accordance with the Clause.  Of particular
relevance here, the Court noted that Congress can engage in
investigative and informational functions in aid of the legislative
process and may compel the presence of witnesses to that process end
(424 U.S. at 138;  McGrain v. Daugherty, 273 U.S. 135, 175 (1927)),
and it held that FEC Commissioners, while they could not exercise
"discretionary powers to seek judicial relief," could perform
investigative and informational functions (id. at 137-138).  The
election supervisors in Siebold, as we have explained, performed
essentially similar functions.

   To the extent that Siebold's references to the absence of any
"absolute" barriers and to congressional "discretion" suggest
unconstrainted discretion to vest the appointment of any inferior
officer in any of the three appointing authorities named in the second
portion of the Appointments Clause, the suggestion is incorrect (and
would allow, e.g., judicial appointment of military officers).  But
Siebold's ambiguous words need not and should not be read to mean that
Congress is subject to no limitations at all, and there are good
reasons, even aside from the narrowness of the facts of the case and
the brevity of the Court's analysis, for not treating such dicta as
disposing of the question of inter-Branch appointments.  Notably, the
government's brief did not address the appointment issue at all, and
the portion of the defendants' brief devoted to that issue did not
cite any of the materials that shed light on the Framers' intent
beyond the text of the Clause itself (see Pet. Br. 85-86, Ex parte
Siebold, supra).  Given the evidence of purpose now before the Court
and the intervening analysis in Myers, Buckley, Chadha, and Synar, the
ambiguous dicta in Siebold do not support judicial appointment of an
independent counsel.

   B. The other materials cited by appellant and her amici offer no
greater support for the indpendent counsel statute.  Appellant relies
(Br. 50) on "(c)itizen involvement in law enforcement." But aside from
the obviously irrelevant examples of civil lawsuits brought under
federal statutes by private citizens on their own behalf (id. at 50 &
n.69), appellant cites only one even conceivably pertinent federal
statute, 31 U.S.C. 3730(b), which authorizes a private party to bring
a qui tam action on behalf of the United States.  That provision,
however, authorizes a private party to bring only a civil action for a
money judgment (31 U.S.C. 3730(b));  responsibility for criminal
prosecutions is committed to the Executive Branch (18 U.S.C. 287).
/31/ Furthermore, the statute expressly permits the Executive Branch
to take over any civil action at the outset (31 U.S.C. 3730(b)(2);
see also 31 U.S.C. 3730(b)(4)).  See also 25 U.S.C. 201.  In any
event, the possible involvement of private parties in no way suggests
that where law enforcement, particularly criminal prosecution, is
undertaken by the federal government itself, Congress may ignore the
separation of powers and assign that function to an officer who is
appointed by a court and unaccountable to the President.

   Equally misplaced is appellant's and amici's reliance (App't Br.
40-41;  CC Br. 13-14) on the independence of the Attorney General in
England, judicial appointment of prosecutors in some States, and the
widespread pattern in the States of electing Attorneys General and
prosecutors.  Such arrangements shed no light on the allocation of
appointing power or accountability to the President under the federal
Constitution, which differs markedly from the constitutions of the
various English, colonial, and state governments.  See Seymour Br.
App. 1a-2a, 4a.  The Framers, of course, were well aware of these
different structural approaches, including the differences in
appointment power, and they deliberately departed from those
approaches.  See The Federalist No. 47, at 300-308 (Madison).

   Consistent with the structure the Framers adopted, ever since the
enactment of the Judiciary Act of 1789 (Section 35, 1 Stat. 92),
United States Attorneys have been appointed by the President, with the
advice and consent of the Senate, and have been subject to direction
and removal by the President.  In 1831, then-Attorney General Taney
explained that the President's power to direct the "district
attorneys" is necessarily implied by the duties imposed upon him in
that clause of the constitution before referred to, which enjoins him
to take care that the laws be faithfully executed." The Jewels of the
Princess of Orange, 2 Op. Att'y Gen. 482, 487.  /32/ To be sure,
Congress has authorized district courts to fill a vacancy in the
office of United States Attorney on an interim basis (28 U.S.C. 546,
as amended by the Act of Nov. 10, 1986, Pub. L. No. 99-646, Section
69, 100 Stat. 3616).  But although that provision was upheld in United
States v. Solomon, 216 F. Supp. 835 (S.D.N.Y. 1963), this Court has
not considered its validity;  and even the Solomon court stressed that
the appointment was temporary, the appointee was fully subject to
control by the President, and the statute was not intended to displace
the President's authority (id. at 832-843).

   The fact that the Senate Committee's first draft of the Judiciary
Act of 1789 proposed judicial appointment of the Attorney General and
"district attorneys" (see App't Br. 41-42;  CC. Bri. 14;  Walsh Br. 16
n.15) cannot offer support for the independent counsel statute, as
Judge Ginsburg pointed out in her dissent below (see J.S. App.
122a-123a n41).  That proposal did not even survive in the final
Senate bill, and it was not enacted by Congress, which instead chose
to provide for presidential appointment and Senate confirmation.
Moreover, even under the rejected proposal, there is no indication
that the Attorney General and district attorneys would have been
insulated from presidential direction.

   Nor does the independent counsel statute find any support in the
provision in the Judiciary Act of 1789 for a court to "appoint" a
disinterested person to serve writs in a suit in which the marshal or
deputy marshal was a party (Section 28, 1 Stat. 87;  see Walsh Br. 16
n.15).  It is not clear that the person designated to serve the writ
was expected to become an officer of the United States, and the
service of process is hardly a function that can be performed only by
officers of the Executive Branch.  See Fed. R. Civ. P. 4(c);  cf.
Siebold, 100 U.S. at 397.  /33/ United States Commissioners, also
mentioned by appellant and amici (App't Br. 34;  Walsh Br. 16-17),
were merely the predecessors of United States Magistrates and hence
were clearly judicial, not executive officers.  /34/ Finally, the
special prosecutors of Teapot Dome, the Truman Administration, and
Watergate (CC Br. 15-17;  Sen. Br. 27-28) were all appointed by the
President or the Attorney General and were ultimately accountable to
the President.  It was, of course, precisely that relationship that
the Ethics in Government Act sought to change.

   V. THE INDEPENDENT COUNSEL STATUTE IS NOT CONSTITUTIONALLY
JUSTIFIED BY CONGRESS'S DESIRE TO ELIMINATE SUPPOSED CONFLICTS OF
INTEREST IN CERTAIN CRIMINAL INVESTIGATIONS AND PROSECUTIONS

   Appellant and her amici seek to defend the independent counsel
statute as necessary to eliminate supposed "conflicts of interest"
that might arise if certain criminal investigations and prosecutions
were left to officers accountable to the President.  But no such
argument of convenience can render constitutional an
extra-constitutional legislative creation or "warrant a distortion of
the Framers' work" (Buckley, 424 U.S. at 134).  "(T)he fact that a
given law or procedure is efficient, convenient, and useful in
facilitating functions of government, standing alone, will not save it
if it is contrary to the Constitution.  Convenience and efficiency are
not the primary objectives -- or the hallmarks -- of democractic
government" (Chadha, 462 U.S. at 944;  see Synar, slip op. 20).  /35/

   A. Appellant contends (Br. 48-49) that this Court's decisions in
Nixon v. Administrator of General Services, 433 U.S. 425 (1977), and
CFTC v. Schor, No. 85-621 (July 7, 1986), call for a balancing
approach, under which policy arguments in defense of the independent
counsel statute might be considered.  In appellant's view, a balancing
approach is appropriate because the independent counsel statute does
not result in aggrandizement of one Branch at the expense of another.
Appellant is wrong.  The statute divests the President and the Senate
of their important roles in selecting and approving the appointment of
executive officers who wield important governmental powers, and
divests the President of his responsibility for certain criminal
prosecutions, while it aggrandizes the Judicial Branch by vesting it
with the executive power of appointment (and powers to define
prosecutorial jurisidiction and to terminate the office).  But even
where such aggrandizement is absent, Nixon and Schor do not suggest
resort to a balancing test if particular structural provisions of the
Constitution are violated.  Neither decision involved the Appointments
Clause or removal authority;  neither involved a congressional action
whose aim was to transfer authority away from the Branch that is
entrusted with it by the Constitution;  and neither suggested that it
is ever appropriate to consider Congress's policy reasons for a
deliberate assault on another Branch's authority.

   In Nixon, the Court rejected a facial challenge, based only on
general separation-of-powers notions, to a statute that directed the
Administrator of General Services to promulgate and apply regulations
governing the disposition of presidential materials.  As the Court
emphasized, the statute assigned the duty to an "official of the
Executive Branch, appointed by the President" (433 U.S. at 441;  see
also id. at 443), left the Executive Branch "in full control of the
Presidential materials" (id. at 444), and preserved the President's
power to assert any claims of privilege (id. at 444-445).  There was
no displacement of Ariicle II authority.

   Schor did not involve Article II and the Executive Branch at all,
but rather the distinctive body of law governing Article III and the
Judicial Branch.  The Court upheld a statute that authorized the CFTC
to rule in the first instance on certain counterclaims, because (1)
the CFTC jurisdiction over the counterclaims was entirely voluntary
with the parties (slip op. 13-15, 20);  (2) it was not Congress's aim
to withdraw the counterclaims from the cognizance of the Article III
courts (slip op. 20);  and (3) the courts retained quite broad power
to review CFTC decisions (id. at 16-22).  The Court, while considering
congressional purposes, in no way suggested that if the underlying
congressional aim had been to transfer authority away from the
Judicial Branch or to deprive litigants of their right to present
their claims to an Article III court, it would have been relevant to
consider whether Congress might be able to articulate good reasons for
such an assault on the constitutional structure.  In this case, of
course, Congress's express purpose was precisely to deprive the
President of an important part of his Article II power, which in turn
involuntarily subjects persons like appellees to investigations and
prosecutions by a person outside the Article II structure.

   B. Quite aside from the various structural impediments to
application of a balancing test here, the conflict-of-interest
concerns that appellant and her amici seek to weigh in the balance are
addressed by the Constitution itself or may be addressed by Congress
and the President pursuant to their powers, under the Necessary and
Proper Clause and the Take Care Clause, to prescribe rules of conduct
for executive officials.

   1. To the extent that Congress was concerned about possible
conflicts of interest of particular prosecutors, including any
Department of Justice official up to and including the Attorney
General, those problems may be fully addressed by statutes and
regulations that require personal disqualification in particular
matters, leaving them to be handled by other persons who are
unaffected by a conflict.  Congress has made it a crime in a broad
class of situations for a federal prosecutor to participate
substantially and personally in matters in which he has a financial
interest.  18 U.S.C. 208.  Congress has also directed the Attorney
General to promulgate regulations requiring disqualification of
lawyers and others where a personal, financial, or political conflict,
or its appearance, would otherwise result.  28 U.S.C. 528.  The
Department of Justice has done so.  28 C.F.R. Pt. 45;  Young, slip op.
15-16.  See also Exec. Order No. 11,222, 3 C.F.R. 306 (1964-1965
comp.) (federal employees may not have financial interests that
conflict with their duties).  Further and more stringent statutes on
this subject could be adopted.

   If Congress were to conclude that the Attorney General and the
entire Department of Justice might be burdened by a conflict of
interest in certain matters involving high-level executive officials,
it could constitutionally establish a separate office within the
Executive Branch and provide for presidential appointment, with
consent of the Senate, of a person to fill that office.  See Frey &
Geller, Better Than Independent Counsels, The Washington Post, Feb.
14, 1988, at C7;  H. Baker, The Proposed Judicially Appointed
Independent Office of Public Attorney:  Some Constitutional Objections
and an Alternative, 29 Sw. L.J. 671, 682-683 (1975).  Indeed, this and
other possible measures would be available within the constitutional
structure even if Congress believed at a particular time that every
person then in the Executive Branch, except the President, suffered
from a conflict of interest.  It is only the President whose power and
duties must be preserved under Article II.

   2. The congressional concerns that underlie the independent counsel
statute thus reduce, in the end, to a concern about the President
himself.  The independent counsel statute rests on Congress's belief
that, in certain cases, there is a "fundamental institutional conflict
of interest" in having the President remain accountable for a criminal
investigation and prosecution (H.R. Rep. 95-1307, supra, at 2).  But
as that statement betrays, and as the Senate Committee later stated
explicitly, that conflict is "inherent in our system of government"
(S. Rep. 97-496, supra, at 4).  In this respect, it is like the
conflict inherent in the courts' deciding cases affecting judges' pay
(see United States v. Will, 449 U.S. 200, 214 (1980);  Atkins v.
United States, 556 F.2d 1028 (Ct. Cl. 1977), cert. denied, 434 U.S.
1009 (1978)) and in Congress's deciding whether particular laws will
apply to it.  It is not for Congress, outside the Article V amendment
process, to decide that the structure established by the Framers is
defective and to assume to cure the defect.

   Such attempts to improve upon the Constitution are especially
unwarranted where, as here, they concern a problem the Framers
specifically addressed.  The Framers comprehensively considered the
conflicts of interest that might result from occupying various offices
under the new Government, and the Constitution contains numerous
provisions that address the subject.  E.g., Art. I, Section 6 (no
Senator or Representative may be appointed to civil office that was
created or the emoluments of which were increased during the time for
which he was elected;  no person holding any office under the United
States shall be a Member of either House);  id. Section 9, Cl. 8 (no
person holding public office may accept foreign gifts, emoluments,
offices, or titles without congressional consent);  Art. II, Section
1, Cl. 2 (No Senator or Representative or person holding office may be
an elector);  id. Section 1, Cl. 7 (President's salary not to be
increased or decreased during time for which he is elected and
President may not receive other emoluments from the United States or
any State).  The Framers did not, however, include a provision
requiring the disqualification of the President from exercising his
broad powers under Article II in these or any other circumstances.
/36/ Moreover, the Constitution's provision for the advice and consent
of the Senate was designed to furnish precisely the sort of check on
"any incautions or corrupt nomination by the Executive" (2 Farrand 43
(Madison)) or the appointment of "obsequious instruments of his
pleasure" (The Federalist No. 76, at 458 (Hamilton)) that Congress
sought to provide by vesting appointment of the independent counsel in
a court.  The Constitution therefore fully accommodates Congress's
concern with ensuring the appointment of a prosecutor having the
requisite qualities of integrity, fairness, and determination.

   3. Most important, the Constitution provides for impeachment (Art.
II, Section 4) specifically to deal with abuses of power by the
President and other officers, and the Framers quite deliberately chose
to vest the high responsibility of impeachment in bodies that
themselves are politically accountable to the people (Art. I, Section
2, Cl. 5 (House has the sole power to impeach);  id. Section 3, Cl. 6
(Senate has the sole power to try impeachments)).  See The Federalist
No. 65, at 396-401 (Hamilton);  id. at 397 (in this "NATIONAL INQUEST
into the conduct of public men()," "who can so properly be the
inquisitors for the nation as the representatives of the nation
themselves?");  4 Elliot's Debates 114 (James Iredell).  The Framers
understood that impeachment was a remedy of real substance.  /37/ The
role they expected that mechanism to play is demonstrated by the
express exemption of impeachment from the President's otherwise
plenary pardon power.  Art. II, Section 2, Cl. 1.  The Framers adopted
this exemption specifically to insure against presidential protection
of "high officers of state" (4 Elliot's Debates 113) -- who, once
removed, could still be prosecuted "in the ordinary course of law"
(see The Federalist No. 65, at 399 (Hamilton)).  Justice Story
explained (Story 551) that the exemption from the pardon power "takes
from the President every temptation to abuse it in cases of political
and official offenses by persons in the public service." The exemption
was designed as a "check upon his power, so that he cannot by any
corrupt coalition with favourites, or dependents in high offices,
screen them from punishment."

   The independent counsel statute seeks to bypass the impeachment
process that the Framers designed to guarantee both that high officers
of government could be investigated and removed from office and that
the President, himself subject to impeachment, could be prevented from
protecting his "favourites, or dependents in high offices." The
Framers assigned the impeachment mechanism to Congress because they
wanted the responsibility of dealing with high government misconduct
to rest in a politically accountable assembly.  Just as the President
may not be divested of or avoid his responsibilities under the Take
Care Clause, Congress may not avoid its often difficult, but no less
crucial, duty of overseeing the Executive Branch through the means the
Constitution provides for that task.

   4. Of course, less drastic tools than impeachment are available
under the Constitution.  Ever since 1789, those tools have been used
with great frequency.  The regular prosecutorial organs of the
Department of Justice may be, and have been, used to prosecute high
ranking officials.  See United States v. Agnew, 428 F. Supp. 1293 (D.
Md. 1977).  /38/ Congress may create or provide for the creation of
permanent watchdog offices like the Inspector General Offices (5
U.S.C. (& Supp. IV) App. at 987-993) or the Office of Professional
Responsibility of the Justice Department (28 C.F.R. 0.39).  It may
establish an agency of government to address official misconduct or
create a separate unit within an existing department, like the Public
Integrity Section in the Justice Department's Criminal Division.  It
may create special prosecutor offices, or authorize their
administrative creation, on a case-by-case basis.  /39/ These
approaches have hardly proved useless:  through such normal mechanisms
and through the statutory or regulatory creation of special
prosecutors, high-level executive officers serving under Presidents
Jefferson, Grant, Hayes, Theodore Roosevelt, Harding, Coolidge,
Truman, and Nixon were prosecuted, and many others have been
investigated.  See generally Responses of the Presidents to Charges of
Misconduct (C. Vann Woodward ed. 1974).  Congress also has broad
powers to conduct its own investigations short of impeachment, as it
did, for example, in the Watergate and Iran/Contra hearings.  See
McGrain v. Daugherty, supra (investigation of Attorney General's
failure to prosecute alleged corruption).  /40/ And Congress has
numerous means of applying political pressure to help secure the
President's faithful execution of the laws.  There is no warrant after
200 years of experience under the Constitution for the independent
counsel statute's extra-constitutional means of addressing a problem
that the Constitution itself furnishes ample means to address, through
properly accountable institutions of government.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   LOUIS R. COHEN

   WILLIAM C. BRYSON

      Deputy Solicitors General

   JAMES M. SPEARS

   ROBERT J. CYNKAR

      Deputy Assistant Attorneys General

   EDWIN S. KNEEDLER

   RICHARD G. TARANTO

      Assistants to the Solicitor General

   ROBERT E. KOPP

   DOUGLAS LETTER

   THOMAS M. BONDY

      Attorneys

   APRIL 1988

   /1/ Contrary to appeallant's argument (Br. 24-29), this Court is
not foreclosed from reaching the question of the constitutionality of
the independent counsel statute.  We share appellant's concern,
reflected in Blair v. United States, 250 U.S. 273 (1919), that grand
jury proceedings generally not be subject to interruption by
witnesses' legal challenges to subpoenas.  In this case, however,
appellant herself did not object to the interruption of grand jury
proceedings that occurred when appellees responded to subpoenas by
challenging her authority to proceed (J.S. App. 9a n.6).  Because
appellees have been held in civil contempt for their refusal to comply
with the subpoenas, there is a case or controversy between appellant
and appellees, and the question whether to consider appellees'
challenge is a matter of prudence and sound judicial administration.
In light of appellant's failure to object to resolution of the
constitutional questions by the district court, the unique and
fundamental character of appellees' challenge to the prosecutor's
authority, and the purely legal nature of that challenge, it was
proper for the court of appeals to address the important
constitutional questions presented.  Cf. Gardner v. Toilet Goods
Ass'n, 387 U.S. 167 (1967);  Abbott Labs v. Gardner, 387 U.S. 136, 149
(1967);  American Trucking Ass'ns, Inc. v. ICC, 747 F.2d 787 (D.C.
Cir. 1984).  It is likewise proper for this Court to do so.

   /2/ See Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41, 68-69
(describing the disorganization that plagued the Continental
Congress's efforts to direct the American Revolution);  C. Thach,
supra, at 52-53 ("state experience * * * taught the value of
integration" in the Executive);  id. at 31-34, 41-42 (describing state
experience with a divided executive);  id. at 62 (Confederation
experience prompted demands for "unitary departmental control and
integration" in execution of laws);  id. at 57-68 (describing
Confederation experience).

   /3/ The Convention rejected Edmund Randolph's proposal that the
Executive consist of three members drawn from separate regions of the
country.  1 Farrand 66, 71-74, 88, 91-92, 97.  It also turned down
proposals for the President to have a Privy Council, consisting either
of the Chief Justice and the heads of executive departments (2 id. at
335-337) or of representatives of regions (id. at 533, 537, 542).  The
resolutions adopted to guide the Committee on Detail and that
Committee's draft both expressly provided that the Executive was to
consist of "a single Person" (id. at 132, 171).

   /4/ The Senate cites (Br. 21 & n.29) an 1823 opinion of the
Attorney General in which he explained that the Constitution does not
impose on the President the duty to execute the laws personally (1 Op.
Att'y Gen. 624, 624-626).  The same opinion also makes clear that the
Constitution "places the officers engaged in the execution of the laws
under (the President's) general superintendence" and that, if the
President is not satisfied with their conduct, he may take steps "to
cause them to be displaced, prosecuted, or impeached" (id. at 625).

   /5/ The fact that Congress may assign nondiscretionary duties to
particular executive officers, and that the President may not instruct
those officers to countermand their statutory orders (see Kendall v.
United States, 37 U.S. (12 Pet.) 524, 610-613 (1838)), is of course
fully consistent with the President's duty to "take Care * * * ." See
Strauss, supra, 84 Colum. L. Rev. at 607 (footnote omitted) (the duty
in Kendall "left no scope for judgment" and the decision accordingly
"holds only that the President and other executive officials must act
within the law").

   /6/ As Justice Stevens said in his concurring opinion in Synar
(slip op. 14), "a particular function, like a chameleon, will often
take on the aspects of the office to which it is assigned."

   /7/ Thus, as we explain below (pp. 29-33) in discussing Humphrey's
Executor v. United States, 295 U.S. 602 (1935), whether the President
must be able to remove at will the members, appointed by him with
Senate consent, of independent agencies that perform
"quasi-legislative" and "quasi-judicial" functions presents questions
quite distinct from those presented in this case.

   Moreover, the President's accountability for the exercise of
discretionary executive power is of course not imperiled by the
ordinary protections against removal from office enjoyed by federal
employees in the civil service, who are so situated in the hierarchy
of authority leading up to the President that their every exercise of
discretionary power is subject to control by a superior in that
hierarchy.  See United States v. Perkins, 116 U.S. 483 (1886).

   /8/ Buckley, 424 U.S. at 137-138, offers a close analogy.  The
members of the Federal Election Commission as then constituted were
not appointed in accordance with the Appointments Clause.  The Court
therefore considered which of the Commission's powers could be
exercised by commissioners not so appointed.  The Court's answer was
that certain powers "falling in the same general category as those
powers which Congress might delegate to one of its own committees"
could be exercised by the Commission, but other powers, notably the
Commission's "enforcement power, exemplified by its discretionary
power to seek judicial relief" (id. at 138), could not be so
delegated, because "it is to the President, and not to the Congress,
that the Constitution entrusts the responsibility 'to take Care that
the Laws are faithfully executed'" (ibid. (citation omitted)).

   /9/ In Young v. United States ex rel. Vuitton et Fils S.A., No.
85-1329 (May 26, 1987), the Court ruled that a court may appoint an
attorney for the special purpose of assisting it in punishing
contempts.  The Court viewed that power as an integral part of the
inherent Article III authority to ensure respect for the courts (slip
op. 7-12) and carefully distinguished the task of prosecuting crime
generally.  The Court explained that merely because contempt is a
crime "does not mean that any prosecution of comtempt must now be
considered an execution of the criminal law in which only the
executive branch may engage.  * * * (T)hese proceedings are not
intended to punish conduct proscribed as harmful by the general
criminal laws.  Rather, they are designed to serve the limited purpose
of vindicating the authority of the court." Id. at 11-12.

   /10/ Judicial supervision of grand juries is wholly different.  The
grand jury, expressly referred to in the Fifth Amendment, has always
been understood to be a distinctive institution, directly involving
the people rather than an ordinary governmental office within one of
the Branches;  and limited judicial supervision of grand juries is
considered an ancillary aspect of the Article III judicial power.  See
United States v. Sells Eng'g, Inc., 463 U.S. 418, 423-424 (1983);
Brown v. United States, 359 U.S. 41, 49 (1959).  Even in that setting,
courts have recognized that such supervision is constrained by
separation-of-powers principles.  United States v. Gatto, 763 F.2d
1040, 1046 (9th Cir. 1985);  United States v. Chanen, 549 F.2d 1306,
1312 (9th Cir.), cert. denied, 434 U.S. 825 (1977).  In any event,
judicial supervision of grand juries involves no judicial role in the
exercise of policy discretion.  Nor is any involvement in prosecutors'
policy decisions called for by the judicial role, expressly referred
to in the Fourth Amendment, in making determinations of probable cause
upon applications for warrants.

   /11/ For example, as Professor Cox testified, President Theodore
Roosevelt decided not to prosecute United States Steel Corporation for
an antitrust violation because such an action might have impaired
business confidence during the economic recovery following the
financial panic of 1907.  Removing Politics from the Administration of
Justice:  Hearings on S. 2803 and S. 2978 Before the Subcomm. on
Separation of Powers of the Senate Comm. on the Judiciary, 93d Cong.,
2d Sess. 202 (1974).  The current Iran/Contra investigation involves a
host of foreign-relations and national-intelligence issues and has
already required investigation in and contact with several foreign
nations, including Israel.  See also United States v. Deaver, No.
87-096 (D.D.C. June 22, 1987) (subpoena of Canadian ambassador);  J.S.
App. 57a-58a.

   /12/ The Senate Committee indicated in 1982 that compliance with
Justice Department policies was only a "goal" (S. Rep. 97-496, 97th
Cong., 2d Sess. 16) and that the independent counsel "should be guided
by his perception of fundamental fairness and of what is required to
conduct the investigation conscientiously" (ibid.).  The Committee
further stated that the Statute "should not be interpreted to mean
that failure of the (independent counsel) to follow Departmental
policies would constitute grounds for removal * * * .  (This) would
seriously compromise the (counsel's) independence" (ibid.).  Contra,
App't Br. 58;  Sen. Br. 25 n.34;  CC Br. 9.

   /13/ The Special Division exercised that authority in the case for
which amicus Walsh was appointed:  after receiving a letter from
several Members of Congress, it defined his jurisdiction to include
more events and persons than those included in the Attorney General's
application.  See In re North, No. 86-6 (D.C. Cir. Indep. Counsel
Spec. Div. (Order of Dec. 19, 1986));  In re Sealed Case, 829 F.2d 50,
65 n.3 (D.C. Cir. 1987) (Williams, J., concurring in part and
dissenting in part), cert. denied, No. 87-869 (Jan. 19, 1988).

   Under 28 U.S.C. 594(e), an independent counsel "may ask the
Attorney General or the division of the court to refer matters
related" to her original jurisdiction.  The Special Division ruled In
re Olson, 818 F.2d 34, 48 (1987), that the division could not grant
such a request after the Attorney General had denied it.  Whether the
independent counsel could bypass the Attorney General altogether was
not discussed.  In the 1987 reauthorization, Pub. L. No. 100-191, 101
Stat. 1293, Congress made clear that such a bypass is authorized.  See
H.R. Rep. 100-316, 100th Cong., 1st Sess. 28-29 (1987).

   /14/ Cf. Chadha, 462 U.S. at 942 n.13.  The Constitution plainly
would not allow the President to give an Article III court the power
to appoint a special Secretary of State who would thereafter
independently conduct one section of the Nation's foreign affairs;
neither does it allow the Attorney General to give irretrievably away
the President's responsibility for the discretionary law enforcement
decisions (regarding, e.g., charges, grants of immunity, pleas) made
by the independent counsel.

   /15/ In addition, the Attorney General must base his decision on
limited information, because he is expressly forbidden to use
compulsory grand jury process or to issue subpoenas in conducting his
preliminary investigations.  28 U.S.C. 592(a)(2).  Under the 1987
reauthorization, he is also barred from rejecting referral based on
the target's state of mind.  Section 2, 101 Stat. 1295, to be codified
at 28 U.S.C. 592(a)(2)(B).

   /16/ Madison noted:  "(i)f there is a principle in our Constitution
* * * more sacred than another, it is that which separates the
Legislative, Executive, and Judicial powers.  If there is any point in
which the separation of the Legislative and Executive powers ought to
be maintained with great caution, it is that which relates to officers
and offices." 1 Annals of Cong. 581.

   /17/ Judge J. Skelly Wright rejected the contrary reading of the
Appointments Clause in his dissent in Hobson v. Hansen, 265 F. Supp.
902, 921 (D.D.C. 1967):  "Its language very naturally admits the
common-sense reading that courts of law and the other listed offices
were meant to appoint only those officers 'inferior' to them * * * .
And the narrower reading harmonizes with the most apparent purpose of
Article II:  to let Congress clothe Secretaries and courts with the
necessary authority for filling vacancies in their own staffs."

   /18/ 2 Farrand 183 (report of Committee on Detail);  id. at 498;
see C. Thach, supra, at 114-115, 127-130, 134-138.

   /19/ In The Federalist No. 69 (at 421-422) and the Federalist No.
77 (at 460-462), Hamilton objected to the secrecy and absence of
personal responsibility where appointment is vested in a small
council.  The provision for appointment of executive officers by the
three-member Special Division of the District of Columbia Circuit,
after deliberations, raises the very concerns Hamilton identified.
Although multi-member "Courts of Law" commonly appoint their own
clerks and other officers, the appointing authority in that situation
is the same as that to which the officer reports.

   /20/ The contrary suggestion of amicus Common Cause (Br. 25) is
incorrect.  Justice Story's discussion of the "discretion" of Congress
states nothing more than what appears from the text of the
Appointments Clause:  that Congress has discretion, for inferior
officers, to choose not to require presidential nomination with Senate
confirmation but instead to rely on the second portion of the Clause.
Justice Story's discussion does not state that Congress has discretion
to vest appointment of executive officers in the courts.  Indeed, in
explaining the virtues of this discretion, Justice Story stated:  "In
one age the appointment might be most proper in the president;  and in
another age, in a department" (Story 566).  He omitted any reference
to the third of the appointing authorities mentioned in the inferior
office, portion of the Clause, viz., the courts.

   /21/ A different question is presented by the voluntary assumption
of certain duties by individual judges, as opposed to the courts
themselves, at the behest of Congress or the Executive.  The precedent
for such practices includes Chief Justice Jay's service as Ambassador
to England (while he served as Chief Justice) and Justice Jackson's
service at the Nuremberg War Crimes Trials.  See In re President's
Comm'n on Organized Crime (Subpoena of Scarfo), 783 F.2d 370, 377-378
(3d Cir. 1986).

   /22/ In United States v. Eaton, 169 U.S. 331 (1898), the Secretary
of State's temporary appointment of a vice-consul as Consul was upheld
under the inferior officer portion of the Appointments Clause (even
though "Consuls" are listed in the first portion of the Clause).  The
vice-consul was a subordinate officer.  Eaton further suggests, by its
reference to the temporary and emergency nature of the appointment,
that subordinacy is only a necessary, and not always a sufficient,
condition of status as an inferior officer.  See also 2 Farrand 627
(Madison's reference to "Superior Officers below Heads of
Departments").  Similarly, a department head would be structurally
subordinate to the President, but he likely would be deemed to have
the status and responsibilities of a principal officer, not only for
historical reasons but also because he (rather than the President
personally) is vested with final statutory authority over all matters
within his department.  Cf. Classification Act of 1923, ch. 265,
Section 2, 42 Stat. 1488 ("'the head of the department' means the
officer or group of officers in the department who are not subordinate
or responsible to any other officer of the department").

   /23/ Dr. Samuel Johnson, in his Dictionary of the English Language
(7th ed. 1785), defined "inferior" to mean (1) "(l)ower in place," (2)
"(l)ower in station or rank of life:  correlative to superiour," (3)
"(l)ower in value or excellency," and (4) "(s)ubordinate." Contrary to
the suggestion of appellant (Br. 35) and her amici (e.g., CC Br. 25;
Walsh Br. 13-14 n.14), we fail to see how that definition in any way
undermines the hierarchical reading of the word "inferior" in the
context of a constitutional provision concerned with governmental
structure.

   /24/ That the Appointments Clause singles out Justices and various
foreign ministers reflects this concern.  Justices, once appointed,
serve during good behavior, and foreign ministers, in the Eighteenth
Century, had to carry out much of their work without means of quick
contact with the government at home.  Responsible appointment is in
both cases especially important.

   /25/ The FTC's functions that the Court described as
"quasi-legislative" or "quasi-judicial" were quite limited.  In
particular, they did not include rulemaking power, as the FTC did not
claim such authority until 1962.  See National Petroleum Refiners
Ass'n v. FTC, 482 F.2d 672, 693 (D.C. Cir. 1973), cert. denied, 415
U.S. 951 (1974);  Synar v. United States, 626 F. Supp. 1374, 1397 n.24
(D.D.C. 1986) (three-judge court), aff'd, Bowsher v. Synar, Supra.
The FTC's functions at the time included the conduct of investigations
on behalf of Congress (see 295 U.S. at 621, 628), individual
adjudications (see id. at 620-621, 624, 628, 629), and the performance
of duties as a master in chancery (see id. at 621, 628, 630).  See 15
U.S.C. (1940 ed.) 45, 46, 47.

   /26/ Amicus Walsh suggests (Br. 25) that the FTC Commissioners did
exercise executive power, but that suggestion rests on a misleading
description of the powers of the FTC Commissioners at the time of
Humphrey's Executor.  Aside from "investigation antitrust violations,"
which obviously may be a legislative function, the Commissioners,
amicus Walsh states, were charged with "filing complaints stating the
charges, and going to court to enforce cease-and-desist orders." To
the extent that that language is meant to suggest that the FTC could
initiate actions in court, the suggestion is false.  The FTC could
file only administrative complaints, in order to initiate its own
internal proceedings (15 U.S.C. (1940 ed.) 45(b));  and it could "go()
to court to enforce cease-and-desist orders" only by being named as a
defendant in a judicial challenge brought by a party subject to such
an order (15 U.S.C. (1940 ed.) 45(c)).  The FTC statute provided for
initiation of a court action to enforce an order of the Commission
only by "the Attorney General of the United States, at the request of
the commission" (15 U.S.C. (1940 ed.) 50).

   /27/ See, e.g., 15 U.S.C. 56(b) (FTC must refer criminal matters to
Attorney General);  15 U.S.C. 77t(b) (same for SEC);  15 U.S.C.
2076(b)(7)(B) (same for CPSC);  47 U.S.C. 401(c) (same for FCC);  49
U.S.C. (& Supp. III) 11703 (same for ICC).  See also 28 U.S.C. 547
(criminal prosecution reserved to U.S. Attorneys, under the direction
of the Attorney General, "except as otherwise provided by law");  2
U.S.C. 437d(a)(6) (FEC given only civil enforcement power);  7 U.S.C.
(& Supp. IV) 4a(c), 13a-1 (same for CFTC);  42 U.S.C. 7171(i) (same
for FERC).

   /28/ See, e.g., 15 U.S.C. 2053(a) (CPSC:  removable for "neglect of
duty or malfeasance in office but for no other cause");  47 U.S.C.
154(c) (FCC:  no specified standard for removal);  12 U.S.C. (& Supp.
IV) 2, 1812 (FDIC:  removable by President for "reasons to be
communicated by him to the Senate");  12 U.S.C. 242 (Federal Reserve
Board:  removable for cause);  15 U.S.C. 41 (FTC:  removable for
inefficiency, neglect of duty, or malfeasance in office);  15 U.S.C.
78d(a) (SEC:  no specified standard for removal).

   /29/ Because election supervisors had no guaranteed tenure (Rev.
Stat. Section 2012 (1873 ed.)), they were removable at will by, and
hence were subordinate (and hence "inferior") to, the courts that
appointed them.  See Hennen, 38 U.S. (13 Pet. at 259.  Election
supervisors also appear to have been subordinate to the chief
supervisors in their jurisdictions.  Rev. Stat. Section 2026 (1873
ed.);  see H.R. Rep. 218, 44th Cong., 2d Sess. 35-36, 42-45 (1877).

   /30/ We see no reason why all of the supervisors' functions
described by amici (Walsh Br. 15;  Sen. Br. 38;  see generally Rev.
Stat. Sections 2011-2029 (1873 ed.)), including the arrest of persons
who impeded their functions, could not be performed by Legislative
Branch officers, in the service of securing and judging congressional
elections.  See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821)
(Congress's Sergeants at Arms may arrest and imprison persons for
contempt of Congress).  In any event, the marshal or deputy marshals
generally made the arrests, at the supervisors' instance (H.R. Rep.
218, supra, at 34-36 (supervisors' instructions));  the supervisors'
power to arrest, cited by amicus Walsh (Br. 15), existed only "in the
absence of the marshal's deputies, or if required to assist said
deputies" (Act of Feb. 28, 1871, ch. 99, Section 8, 16 Stat. 436;
Rev. Stat. Section 2022 (1873 ed.)) -- circumstances in which even
private citizens are generally permitted to make or assist in an
arrest (see Rev. Stat. Section 2024 (1873 ed.);  Model Penal Code
Section 3.07 (1985)).

   /31/ There is no history in the federal system of qui tam criminal
prosecutions.  See United States ex rel. Marcus v. Hess, 317 U.S. 537,
548-549 (1943).  United States v. Trobe, 28 F. Cas. 217 (D.C.W.D. Pa.
1865) (No. 16,541);  United States v. Malebran, 26 F. Cas. 1145
(C.C.D.N.Y. 1820) (No. 15,711);  Comment, Qui Tam Actions:  The Role
of the Private Citizen in Law Enforcement, 20 UCLA L. Rev. 778 (1973).
 Cf. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ("in American
jurisprudence at least, a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another").
 Nor is it clear to what extent, if any, even the quite different
English, colonial, and state systems have allowed criminal
prosecutions to be fully controlled by private persons.  See Note, The
History and Development of Qui Tam, 1972 Wash. L.Q. 81.

   /32/ Given the President's right of control, it is irrelevant for
constitutional purposes whether district attorneys were afforded
considerable independence as a practical matter and whether they were
subject to the supervision of the Attorney General or of some other
Executive Branch officer (see App't Br. 52-53).  In fact, there was
some supervision from the beginning.  See L. White, The Federalists:
A study in Administrative History 406 (1948);  Act of May 26, 1824,
ch. 163, 4 Stat. 44.  It is likewise irrelevant that the district
attorneys, who were sworn in as officers, were "private lawyers who
worked on the basis of fees for services rendered" (CC Br. 15
(footnote omitted)).

   /33/ Judicial appointment of District of Columbia school board
members (App't Br. 34 n.42, 40;  H.R. Spkr. Br. 21 n.30) was upheld in
Hobson, 265 F. Supp. at 914-915.  But Congress has plenary legislative
power over the District of Columbia (Art. I, Section 8, Cl. 17), and
its officers need not be appointed pursuant to the Appointments
Clause.  A similar plenary power over the territories (Art. IV,
Section 3, Cl. 2) was at issue in 6 Op. Att'y Gen. 80 (1853), relied
upon by amicus Common Cause (Br. 15).

   /34/ In United States v. Allred, 155 U.S. 591, 595 (1895), the
Court observed that Commissioners "have always been considered in the
same light as masters in chancery and registers in bankruptcy, and
subject to (judicial) supervision and control." See also Go-Bart
Importing Co. v. United States, 282 U.S. 344, 353 n.2 (1931)
(Commissioner is "a mere officer of the district court").  Among the
duties ascribed to such Commissioners (see Allred, 155 U.S. at
594-595;  Rice v. Ames, 180 U.S. 371, 377-378 (1901);  Go-Bart
Importing Co., 282 U.S. at 353 n.2), only the power to "institute
prosecutions," emphasized by amicus Walsh (at 16) suggests a
prosecutorial power.  But appellant and her amici have pointed to no
instance of its use, and the statute from which the phrase comes, 8
U.S.C. (1934 ed.) 49;  Rev. Stat. Section 1982 (1873 ed.), is not
fairly read to give Commissioners such power.  The provision says that
"district attorneys, marshals, and deputy marshals, the commissioners
* * * with power to arrest, imprison, or bail offenders, and (other
officers) * * * are authorized and required * * * to institute
prosecutions against (specified persons) * * * and to cause such
persons to be arrested, and imprisoned or bailed, for trial." Almost
certainly, each person named in the first portion was to perform the
obviously corresponding duty in the second portion -- so that deputy
marshals were not suddenly to have power to grant bail, and
Commissioners were to perform only their usual duties of issuing
arrest warrants and ordering imprisonment or bail.  The succeeding
section supports this reading.  8 U.S.C. (1934 ed.) 50;  Rev. Stat.
Section 1983 (1873 ed.) (Commissioners are to exercise powers
"conferred on them herein" "in like manner as they are authorized by
law to exercise with regard to other offenses").

   /35/ Amicus Walsh argues (Br. 2-17) that the Necessary and Proper
Clause (Art. I, Section 8, Cl. 18) gives Congress the power to adopt
the independent counsel statute as an appropriate response to the
perceived problem.  But that Clause adds nothing to the analysis.
While Congress doubtless has broad power under that Clause to create
offices and to structure the Executive Branch, the Clause does not
allow Congress to adopt measures that violate other provisions of the
Constitution.  In Buckley, 424 U.S. at 134-135, this Court rejected a
nearly identical argument.  See M'Culloch v. Maryland, 17 U.S. (4
Wheat.) 316, 421 (1819) (Necessary and Proper Clause permits measures
that "are not prohibited, but consistent with the letter and spirit of
the constitution").

   /36/ Notably, in the Convention, Edmund Randolph proposed to
exclude "cases of treason" from the pardon power, arguing:  "The
President may himself be guilty.  The Traytors may be his own
instruments." 2 Farrand 626.  Other members of the Convention,
including George Mason and James Madison, shared the concern (id. at
626-627), but it was objected that if the President "be himself a
party to the guilt he can be impeached and prosecuted" (id. at 626
(James Wilson)).  See The Federalist No. 74, at 449 (Hamilton);  4
Elliot's Debates 111-112 (James Iredell);  2 id. at 497-498 (Mason and
Madison).  The Framers rejected the exception, despite the "conflict
of interest," and relied on impeachment as a remedy.  There is no
greater constitutional justification for an independent counsel than
for an independent pardon authority.

   /37/ See The Federalist No. 65, at 396-401 (Hamilton);  Id. No. 69,
at 416 (Hamilton);  Id. No. 77, at 464 (Hamilton);  Id. No. 81, at 485
(Hamilton);  Id. No. 84, at 511 (Hamilton);  2 Farrand 67-69;  Story
282-290;  P. Hoffer & N. Hull, Impeachment in America, 1635-1805, at
96-106 (1984);  id. at 146 ("By 1975, impeachment had proved itself an
effective and a fair tool of republican government.").

   /38/ See also Connelly v. United States, 249 F.2d 576 (8th Cir.
1957), cert. denied, 356 U.S. 921 (1958) (Assistant Attorney General
and Appointments Secretary under President Truman);  Miller v. United
States, 24 F.2d 353 (2d Cir.), cert. denied, 276 U.S. 638 (1928)
(Attorney General under Presidents Harding and Coolidge);  United
States v. Babcock, 24 F. Cas. 913 (C.C.E.D. Mo. 1876) (No. 14,487)
(President Grant's personal secretary);  United States v. Burr, 25 F.
Cas. 55 (C.C.D. Va. 1807) (No. 14,693) (Vice President, 1801-1805,
prosecuted by district attorney).

   /39/ Pursuant to statute, President Coolidge appointed a special
prosecutor, with Senate consent, to investigatte wrongdoing in
connection with the Teapot Dome leases.  Act. of Feb. 8, 1924, ch. 16,
43 Stat. 5-6.  A special prosecutor's office was created within the
Justice Department in the Nixon Administration.  United States v.
Nixon, supra.  The Attorney General appointed an independent counsel
in 1979 to investigate the relationship between the Carter Warehouse
and the National Bank of Georgia.  44 Fed. Reg. 25837 (1979).  All of
the current independent counsels have been offered, and several have
accepted, appointments as special prosecutors within the Department of
Justice.  See also Jones v. United States, 179 F. 584, 586-590 (9th
Cir. 1910) (special prosecutor appointed by Attorney General);  Tyner
v. United States, 23 App. D.C. 324, 363 (D.C. Cir. 1904) (special
prosecutor appointed by President Roosevelt).

   /40/ See, e.g., Hearings on the Investigation of Regulatory
Commissions and Agencies Before the Special Comm. on Legislative
Oversight of the House Comm. on Interstate and Foreign Commerce, 88th
Cong., 2d Sess. 525, 1384-1389 (1958) (Sherman Adams, under President
Eisenhower);  S. Rep. 27, 69th Cong., 1st Sess. (1926) (Sec'y of
Treasury Mellon, under President Coolidge);  H.R. Rep. 3142, 49th
Cong., 1st Sess. (1886) (Attorney General Garland, under President
Cleveland);  H.R. Rep. 186, 44th Cong., 1st Sess. (1876) (Sec'y of War
Belknap, under President Grant);  H.R. Rep. 684, 29th Cong., 1st Sess.
(1846) (Sec'y of State Webster, under President Tyler);  3 Annals of
Cong. 963 (1793) (Sec'y of State Hamilton, under President
Washington);  Responses of the Presidents to Charges of Misconduct,
supra.  See also S. Rep. 96-1015, 96th Cong., 2d Sess. (1980) (Billy
Carter, brother of President).