15

This Solon-like role even extended to the Legislative Branch of Government. Until 1820 the Attorney General, on occasion, gave advice to the House on matters pending before them. It was also at this time that Attorney General William Wirt reminded his colleagues within the Executive Branch that his role placed him outside political considerations. When sought by the Secretary of the Navy for advice, he declared: "As my official duty is confined to the giving of my opinion on questions of law, I consider myself as having nothing to do with the settlement of fact. [emphasis in original]." Not only is the Attorney General the chief of law officers within our government, but he is also an agent for the Federal courts. Indeed, the fact that his office is set forth in the Judiciary Act of 1789 (1. U.S. Stat. L. 73) indicates that, to a large extent, his role, as opposed to those of other officers of the Executive, is one of law. As set forth in Chapter XX, Section 35 of the Act, the only qualification which the holder of the position must meet is that he be "a meet person, learned in the law." Ultimately, it is the Senate which, by confirmation of the President's nominee, attests to the qualifications of an individual to be Attorney General. On eleven occasions (involving eight nominees) the Senate has rejected nominees for Cabinetlevel positions and three of these instances have involved nominees for Attorney General."

On June 22, 1870, the Office of Attorney General was transformed into the Justice Department. The necessity for creating an enlarged legal counsel office grew out of the hearings of the Joint Committee on Retrenchments, created by Congress in 1867 to examine war expenditures. The committee scrutinized the legal work carried on within the Federal Government and took testimony in December of 1867 from Attorney General Henry Stanbery. While other pressing and sensational matters of state captured public attention, the matter of enlarging the law administration received continuous consideration during sessions of the Thirty-ninth, Fortieth, and Forty-first Congresses.

"A chief object of the act of 1870 was to make it possible to create a staff sufficiently large to transact the law business of the government in all parts of the country. If assistant counsel were employed, these extra men were to be designated either as assistant district attorneys or as assistants to the attorney-general; and so, holding commissions as such, they could be made strictly responsible to the attorney-general for the performance of duties."

7

The expansion of the Attorney General's staff and elevation of his office to departmental-Cabinet status did not alter the legal officer status of his position. With the establishment of the Justice Department in 1870 (16 Stat. 162) there appears to have been a presumption that the Attorney General needed staff asssitance and that law administration within the Federal Government required consolidation. The fact that this consolidation occurred under the Attorney General testifies to the prevailing viewpoint that this was an official whose first concern must be for the law. His functions were not affected, but other agents of government were brought under his authority in order that they might operate with the same spirit of respect for the law which was imbued in the office of the Attorney General. Thus the Attorney General remained a legal counsel for the President, the Cabinet, and the agencies of the Executive Branch; served as the chief of the law officers of the Federal Government; and acted as an agent for the Federal Courts.

The foregoing paragraphs seek to indicate the circumstances and underlying thought surrounding the creation of the Office of the Attorney General and the Department of Justice. To some extent research of this type is hampered by the lack of ready resources. We have attempted to provide a concise and accurate portrayal of these matters based upon the best available materials.

4 Ibid., p. 466.

5 Ibid., p. 451.

These rejections include: Henry Stanbery nominated by President Johnson and defeated by a 11-29 vote on June 2, 1868; Charles B. Warren nominated by President Coolidge and defeated by a 39-41 vote on March 10, 1925 and defeated a second time on March 16, 1925 by a 39-46 vote.

7 Learned, op. cit., p. 62.

[From the Library of Congress, Congressional Research Service, Oct. 31, 1973]
CONSTITUTIONALITY OF AN INDEPENDENT PROSECUTOR

(Prepared by Robert L. Tienken, American Law Division, Senior Specialist in American Public Law)

Reference is made to your request for information on the possible creation of an Office of Federal Independent Prosecutor who would have the responsibility of investigating and prosecuting all federal criminal suits. It is expected that the office would have the same general relationship to the Executive and Legislative branches that the General Accounting Office has.

It is questionable whether such an office could be created by legislation because of a separation of powers problem-the office would be beyond the direction and control, including the power of dismissal, of the President and his agent, the Attorney General.

The Comptroller General has been deemed to occupy the dual status of an "officer" of the Legislative branch and an officer of the Executive branch (U.S. ex rel. Brookfield Construction Co. v. Stewart (D.C.D.C., 234 F. Supp. 94 (1964)).

"First, he makes investigations of matters relating to the receipt, disbursement and application of public funds, and reports the results of his scrutiny to the Congress with appropriate recommendations. In addition, he pursues investigations that may be ordered by either House of Congress, or by any Committee of either House, in matters relating to revenue, appropriations or expenditures, 31 U.S.C. § 53. In performing these functions the status of the Comptroller General is that of an officer of the legislative branch of the Government. The Congress has comprehensive authority to undertake investigations in aid of legislation, or in connection with the appropriation of funds. Investigations are an aid to legislation and to the making of appropriations and are therefore auxiliary to the basic functions of the Congress. The Congress may conduct investigations either through Committees or through an official such as the Comptroller General.

"The Comptroller General has also a second status as the chief accounting officer of the Government. His second principal function is that of approval or disapproval of payments made by Government departments and other agencies, as well as settling and adjusting accounts in which the Government is concerned, 31 U.S.C. § 71. This is an executive function and in performing it the Comptroller General acts as a member of the Executive branch of the Government.1 (Supra, p. 99).

The Comptroller General is authorized to exercise his powers and functions "without direction from any other officer" (31 U.S.C. § 44). In addition, the balances that he certifies in accounts are "final and conclusive upon the executive branch of the Government." (Ibid.).

In exercising his executive powers the Comptroller General is not subject to the direction or control of the President.

In making determinations respecting claims of private parties against the Government his decisions are binding only upon the executive agencies (U.S. v. Stewart, supra, p. 100), but private parties involved may contest in the courts any claim for refund or pursue a judicial remedy for money damages in the Court of Claims or in an appropriate U.S. District Court where a decision by the Comptroller General to an agency, which the agency enforces, is erroneous as a matter of law (ibid.). The Comptroller General thus can be said to exercise a quasi-judicial function in the carrying out of certain of his duties.

The constitutional status of the Comptroller General is, consequently, an anomolous one. The office is made independent of the executive departments, by statute (31 U.S.C. § 41); the Comptroller General is independent of executive control (31 U.S.C. § 44); yet a major part of his duties, i.e. accounting, is a responsibility of the Executive branch.

On the other hand he acts as an investigating and counselling agent for the Congress, duties which are not normally those exercised by executive branch organs. The statute, however, does not designate the G.A.O. as a part of the Legislative branch. It merely makes it independent of the Executive.

Finally, the Comptroller General exercises certain quasijudicial functions in the handling of claims against the United States.

Section 43 of Title 31, United States Code, does provide that the Comptroller General and the Assistant Comptroller General may be removed at any time by joint resolution of Congress for certain causes and after a hearing. However, this provision may be unconstitutional because the provision is contradictory to the rationale of Myers v. U.S., 272 U.S. 51 (1926) which held that officers of the United States exercising executive powers and appointed by the President (Article II, Sec. 2, cl. 2) whether or not with the advice and consent of the Senate, are removable by the President, and with the opinions in Humphrey's Executor v. U.S., 295 U.S. 602 (1935), and Wiener v. U.S., 357 U.S. 349 (1958), which held that officials of regulatory agencies exercising quasi-legislative and quasi-judicial powers are removable by the President only for cause. In addition, they cannot be considered officers of Congress because the Constitution does not provide for the appointment of officers by the Congress, but only for the appointment by each respective House of its own officers for internal purposes (Article I, § 2, cl. 5, § 3, cl. 5).

This mixture of unsupervised executive functions, quasi-judicial functions, plus service as agent of the Congress, raises constitutional questions that are relevant to the proposal to create an Office of Independent Federal Prosecutor by statute.

While powers are not separated rigidly among the three coordinate branches of the Government (Wayman v. Southard, 10 Wheat (23 U.S.) 1 (1825)), and. Congress does delegate to the Executive, under accepted standards, authority to carry out functions which do not have to be totally regulated by the Legislature (see, for example, Hampton & Co. v. U.S., 276 U.S. 394 (1928)), it (Congress) cannot confer power which it does not possess such as Article II executive power (see, in this connection, Humphrey's Executor v. U.S., 295 U.S. 602 (1935); Wiener v. U.S., 357 U.S. 349 (1958)). The Constitution vests in the President the executive power substantially through Article II, sec. 3, to see to the faithful execution of the laws (see Humphrey's Executor, supra, and Wiener, supra; Meyers v. U.S., 272 U.S. 52 (1926), and such power is delegable to his subordinates over whom he exercises control and responsibility to such a degree that the power of removal must belong to him to enable him to fulfill that role (ibid.).

Congress may, however, delegate some legislative functions and Article I judicial functions to independent regulatory agencies which are empowered to issue regulations and to adjudicate questions arising under such regulations in the exercise of so-called quasi-legislative and quasi-judicial functions. Such agencies may exercise some executive functions-not executive powers-which are incidental to the carrying out of the quasi-legislative and quasi-judicial functions (see Humphrey's Executor v. U.S., supra; Wiener v. U.S. supra) including, where authorized by statute, the authority to initiate equity proceedings to enforce a parent statute (see, Interstate Commerce Commission v. Chatsworth Cooperative Marketing Association, (C.A. 7th) 347 F. 2d 821 (1965); Federal Trade Commission v. Guignon (C.A. 8th) 390 F. 2d 323 (1968)). Such agencies can be and are placed by Congress beyond the reach of the Presidential directive power and the commissioners may only be removed for cause by the President.

However, Congress may impose quasi-legislative and/or quasi-judicial duties upon an executive officer whose primary responsibility is to exercise executive power and such officer may be removed by the President under his power to see that the laws are faithfully executed for reasons not set forth in a statute (see, for instance, Morgan v. U.S., 298 U.S. 468 (1936)).

Congress may also impose mere ministerial functions on executive officers the discharge of which would be according to the law and not under the direction of the President (see, Kendall v. U.S., 12 Pet. 524 (1838)).

What is important in a separation of powers analysis is not where an agency is located by legislation but what type of powers it exercises. If the agency or its head exercises primarily Article II executive powers it is arguable that they must be performed under the direction of the President and Congress cannot make it or him independent of the President (see, Humphrey's Executor, supra; Wiener, supra). If, however, it or he exercises

quasi-legislative and quasi-judicial functions with some contingent executive functions, Congress may make it or him independent of the President but need not. If Congress could give to an independent agency powers which could not constitutionally be given to such an agency alone, it could encroach upon and reduce the President's powers by simple legislation. This would constitute unconstitutional legislation (see, Springer v. Philippine Islands, 277 U.S. 189 (1928)).

Consequently, it is arguable that Congress, in authorizing the Comptroller General to carry out his accounting duties free from the control of the President and in providing that he can only be removed by means of a joint resolution, has unconstitutionally breached the separation of powers concept. That the constitutionality of the office of Comptroller General is questionable on the grounds that it is essentially an executive office the recipient of which is appointed by the President with the advice and consent of the Senate and thus the removal of whom is exclusively within the power of the President (Myers v. U.S., supra) is noted by Westel W. Willoughby in, "The Constitutional Law of the United States," 2d Ed., 1929, vol. III, § 1000. In his volume, "The Comptroller General, A Study in the Law and Practice of Financial Administration," 1939, Harvey C. Mansfield (pp. 84, 85, 90) flatly states that the Budget and Accounting Act of 1921, in which the office is created, is unconstitutional in this respect.

How do these principles apply to the creation of an Office of Independent Federal Prosecutor?

The Executive is charged. with the true and faithful administration of the acts of Congress. Among the duties of the Executive is to prosecute those whom it reasonably believes should be prosecuted as violators of the law. (Application of Texas Co. et al., (D.C. Ill.) 27 F. Supp. 847 (1939); see also Christian v. U.S. (D.C. Fla.) 235 F. Supp. 382 (1964); Richbourg Motor Co. v. U.S., 281 U.S. 528 (1930); Ponzi v. Fessenden, 258 U.S. 254 (1922); U.S. v. Cox (C.A. 5th), 342 F. 2d 167 (1965). As stated by the court in Pugach v. Klein, (D.C.N.Y.) 193 F. Supp. 630, 634, 635 (1961), a case involving discretionary authority in a U.S. attorney to prosecute:

"Article II, Section 3 of the Constitution provides that '(The President) shall take care that the Laws (shall) be faithfully executed.' The prerogative of enforcing the criminal law was vested by the Constitution, therefore, not in the courts, nor in private citizens, but squarely in the executive arm of the government. . . . The remedy for any dereliction of his (District Attorney's) duty lies not with the courts, but with the executive branch of our government and ultimately with the people.

Title 28 U.S. Code § 547 (a)(1) provides that "Except as otherwise provided by law, each United States attorney, within his district, shall (1) prosecute for all offenses against the United States. "Section 519 pro

vides, "Except as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties." Section 516 provides, "Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General," (see also, Executive Order 6166, June 10, 1933, which administratively authorized the Department of Justice as the sole agency for the prosecution of crimes within the Federal Government (see Christian v. United States (D.C. Fla.) 235 F. Supp. 382 (1964)), and Executive Order 11396, February 7, 1968, which authorized the Attorney General to coordinate Federal law enforcement and crime prevention programs).

It is arguable that the phrase, "except as otherwise authorized by law" when used in relation to criminal prosecutions only refers to some other agency within the Executive branch than the Department of Justice, an agency or officer who would be under the ultimate control of the President and subject to dismissal by him. This was the original division of authority established by the Judiciary Act of 1789 (1 Stat. 92, § 35). United States Attorneys in each judicial district were authorized to execute the laws of the United States and to bring actions and to represent the United States in court, in the performance of which they were subject to the direction of

the President (2 Op. Atty. Gen. 482 (1831). The Attorney General was authorized by the same section of the statute to represent the United States in the Supreme Court. Such division or function within the Executive branch created no constitutional problem because the President possessed ultimate overall direction. No instances have been found where Congress has transferred any part of the power to prosecute outside of the Executive branch. Although it has permitted temporary appointment of U.S. Attorneys by U.S. District Courts (see infra), it has vested authority to initiate civil actions such as an injunction suit in regulatory agencies (see, for instance, S.E.C. v. Robert Collier & Co., (C.C. 2nd, 76th F. 2d 939 (1935) (Securities and Exchange Commission), but not the power of criminal prosecution.

In consequence it is suggested that while an Office of Independent Federal Prosecutor could be established it would probably have to be established within the Executive branch because the prosecution of offenders is generally denoted as an executive power. This means that the President or the Attorney General should have some power of control over the Prosecutor and probably authority direct or indirect as respects his dismissal. Appointment of such an official could be by the President by and with the advice and consent of the Senate, by the President alone, or by the Attorney General, as might be provided by statute (Art. II, Sec. 2, cl. 2).

Under this reasoning the "Prosecutor" would not be independent, but the office could be established separate and apart from the Department of Justice and discretion in initiating prosecutions could be statutorily granted to the Prosecutor (see, 28 U.S.C. §§ 516, 519, 547).

Functions of the Federal Bureau of Investigation respecting the decision and prosecution of crimes against the United States (28 U.S.C. § 533 (1)), the acquisition, preservation and exchange of criminal identification records with other jurisdictions (28 U.S.C. § 534), and the investigation of crimes involving Government officers and employees (28 U.S.C. § 535), among other functions, would have to be transferred to the new office.

The budget for the office could be submitted to the Office of Budget and Management as are those of other agencies (see 31 U.S.C. §§ 2, 24).

The functions of such existing divisions of the Department of Justice as the antitrust, criminal, internal security, and criminal cases in the tax division, might well have to be transferred to the new office, and a new office of Federal District Criminal Prosecutor, as distinguished from U.S. Attorney, might well have to be created.

Other problems such as working relationships between the new office and the Department of Justice and the new office and other government agencies would have to be developed.

Legislation could provide for the submission of reports to Congress but Congress could not attempt to administer the office nor appoint the Prosecutor.

Should it be desired to create an office exercising a wholly executive function but divorced from control by the President, it is arguable that a constitutional amendment would be necessary authorizing Congress to enact the appropriate legislation.

It has been suggested that another approach would be for Congress to vest the power to appoint an Office of Independent Prosecutor in the Judiciary pursuant to Article II, § 2, cl. 2 of the Constitution which reads in part, “. . . but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments," (underlining supplied).

Congress has, under such authority, vested in the courts the power to appoint clerks of the courts (Ex parte Hennen, 38 U.S. 230 (1839)), supervisors of elections of Representatives (Ex parte Siebold, 100 U.S. 371 (1880), and United States Commissioners (Rice v. Ames, 180 U.S. 371 (1901).

Under such authority combined with its authority over the District of Columbia, (Article I, § 8, cl. 17), Congress has vested power to appoint Members of the Board of Education in the District of Columbia in the Judges of the United States District Court for the District of Columbia (Hobson v. Hansen (D.C.D.C.) 265 F. Supp. 902 (1967), appeal dismissed 393 U.S. 801 (1968)).

Finally, it has empowered United States District Courts to appoint U.S. Attorneys-prosecutors-to fill temporary vacancies in their districts (28 U.S.C., § 546 (U.S. v. Solomon, (D.C.N.Y.) 216 F. Supp. 835 (1963)).

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