The Tale of the Omnipotent Prosecutor: How Recent Events Expose Flaws in the Supreme Court's Analysis of the Independent Counsel Clause of the Ethics in Government Act

Article excerpt

What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm--in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. l


The historical power struggles between the Legislative and Executive branches of government, as well as between the Democrat and Republican parties, have recently intensified. Investigations by the Independent Counsel(2) (hereinafter the "IC") have been an important weapon used against the Executive Branch. The IC's large base of supporters argue that the office is necessary to ferret out corruption and crime within the high ranks of the Executive Branch.3 Precisely because of the IC's independence, supporters point to the avoidance of any possible conflicts of interest or political power plays that could taint an ongoing investigation.4 In reply, others have argued that the IC unconstitutionally usurps executive control over its law enforcement duty.5 Many have also criticized the creation of the IC as poor policy, in practice achieving the opposite of the policy goals it was meant to promote. Questions remain regarding the constitutionality and policy rationale of the IC and its use as a check upon high level executive officials.

This Note will attempt to answer these questions of constitutionality and policy by focusing on the role of the IC as created by its enabling legislation-the Ethics in Government Act of 1978 (hereinafter "the Act").6 Part II provides a short overview of special prosecutions that formed the historical backdrop to the Act. Part III analyzes the Act's mechanics in order to give the reader a working knowledge of the IC's interworkings. Part IV discusses the Supreme Court's rationale in Morrison v. Olson,7 which upheld the Act's constitutionality. Using recent events involving the IC, Part V points out flaws in the Supreme Court's analysis of the Act's constitutionality and policy rationale. Part VI will advance a possible solution to achieve the desired result of holding upper executive officers accountable without creating the undesirable effect of imbalance in government.

II. Historical Overview of Special Prosecutors

The history of investigations into scandal and accusations of wrongdoing by upper level executive officers in the United States dates back at least as far as Grant's administration, when a Special Investigator was retained to look into the Whiskey Ring scandal.8 Following that, the Harding Administration's Tea Pot Dome scandal and the Truman Administration's tax evasion scandal were investigated by Special Assistants to the Attorney General.9 The next major scandal to occur and be investigated by an "outside" investigator was Watergate.10 The Special Investigators ("Regulatory Special Investigators") assigned to investigate these scandals were appointed by the Attorney General and remained under the control of the Executive Branch. …