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September 20, 2017

Lesson 3: Independent Counsel

“The executive Power,” begins Article II of the Constitution, “shall be vested in a President of the United States of America.” No ifs, ands or buts about it. The Constitution limits the president’s powers here and there: certain of his executive branch appointees (the document leaves Congress and the president to specify which) and all his judicial appointees must be confirmed by the Senate, two-thirds of which must ratify any of his treaties.

But the Constitution leaves to the president the power Donald Trump most famously exercised on reality television: firing people. This was acknowledged most recently by none other than James Comey, whom Trump “terminated” as FBI director, in his valedictory letter to agency personnel. “I have long believed,” he wrote, “that the president can fire an FBI director for any reason, or for no reason at all.”

Former President Bill Clinton probably wished he had the same power over a different federal official: the independent counsel.

The Supreme Court ruled in Humphrey’s Executor v. U.S. (1935) that the president could not fire “quasi-legislative” agency officials appointed under laws passed by Congress and signed by the president that limited the president’s dismissal power. And in Morrison v. Olson (1988) the Court upheld the independent counsel statute that prohibited the president from firing those appointed by the courts. Justice Antonin Scalia dissented from the 8-1 decision, arguing that the act unconstitutionally restricted the president’s power under Article II.

The Independent Counsel Act had passed in 1978, in response to the firing in 1973, during the Nixon administration, of special prosecutor Archibald Cox—often referred to as “the Saturday Night massacre.” Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than carry out Nixon’s order, because of promises they had made during confirmation hearings; the firing was carried out by the next in the chain of command, Solicitor General Robert Bork, who had made no such promise.

The Independent Counsel Act, which prohibited the president from firing counsels except for very limited cause, attracted much criticism, from both parties.

When obviously spurious charges arose against President Jimmy Carter’s chief of staff, the law required an investigation.

Just before the 1992 presidential election Independent Counsel Lawrence Walsh re-indicted former Defense Secretary Caspar Weinberger, and included language in his indictment roping in President George H.W. Bush. This evoked fury from Republicans. Bush pardoned Weinberger a month later.

Democrats five years later went nuclear on the report by Independent Counsel Kenneth Starr, including explicit descriptions of the sexual behavior of President Bill Clinton. Clinton was impeached by the House of Representatives in 1998 and acquitted by the Senate in 1999.

The Independent Counsel Act expired in 1999. In Congress neither Republicans nor Democrats made any significant effort at re-authorization then, nor has there been any significant move to re-enact the law in the succeeding 18 years.

The closest thing to its substitute is a special counsel, appointed by the Attorney General, and fireable by the President.

September 20, 2017