Morrison v. Olson

Morrison relied on Blair v. United States, which restricts the issues a grand-jury witness may raise after being held in contempt for refusing a subpoena. But she did not object in the District Court when the appellees raised their constitutional claims. The court of appeals therefore could treat the objection as waived, and the Supreme Court declined to revisit it.

The asserted Blair limitation did not concern the existence of an Article III case or controversy. The appellees faced enforceable contempt orders, the parties had a concrete adversarial dispute, and the courts could resolve it. Because the claim was nonjurisdictional, ordinary waiver principles applied.

The Court held that an independent counsel is an inferior rather than a principal officer. She was removable by the Attorney General; performed restricted duties centered on a particular investigation and possible prosecution; lacked broad policymaking and general administrative authority; operated only within a defined jurisdiction; and served temporarily until completing a discrete assignment.

The Appointments Clause expressly permits Congress to vest appointment of inferior officers in the President alone, department heads, or courts of law. Nothing in its text or history imposed an absolute bar on interbranch appointments. Ex parte Siebold supported Congress's discretion to choose among the constitutionally listed appointing authorities.

Judicial appointment was not incongruous with the judicial role here. Courts have historically appointed officials with limited prosecutorial or law-enforcement responsibilities, and the Special Division was insulated from later litigation involving a counsel it appointed. Congress reasonably used the Judicial Branch to avoid the conflicts that may arise when the Executive Branch investigates senior executive officials.

Once Congress validly vested appointment of an inferior officer in a court of law, the Special Division's appointment power derived from the Appointments Clause itself rather than from Article III's judicial power. Defining the counsel's jurisdiction was also incidental to appointment because a temporary office must be tailored to the facts that prompted the Attorney General's request. The jurisdiction, however, had to be demonstrably related to those facts.

The Special Division's other duties—such as receiving reports, granting limited extensions, deciding fee requests, and determining limited disclosure questions—were largely passive or ministerial. They did not give the court supervisory authority over the counsel's investigative or prosecutorial decisions and resembled functions judges regularly perform in grand-jury, disclosure, and fee contexts.

The Court read the Division's termination authority narrowly. The court could terminate an office only when the counsel's work was truly completed or substantially complete, not to direct the pace, depth, or merits of an ongoing investigation. That construction prevented termination from becoming a judicial substitute for removal.

The statute also protected judicial impartiality. The Special Division could not review the counsel's actions or the Attorney General's actions regarding the counsel, and its members were barred from later judicial proceedings involving matters handled by that counsel. The Court cautioned, however, that the Division could not exercise powers not specifically authorized by the Act.

The Court rejected a rigid rule that turns solely on whether an officer exercises "purely executive" functions. Its removal precedents instead asked whether a restriction on removal interferes with the President's ability to perform constitutional duties. Myers established that some executive officers must remain removable at will, while Humphrey's Executor and Wiener showed that Congress may sometimes create protected tenure without violating Article II.

Although an independent counsel performs executive law-enforcement functions, the office is inferior, limited in jurisdiction and duration, and without broad policymaking or administrative responsibilities. The President's need for direct at-will control over that narrowly confined official was therefore not constitutionally decisive.

The Attorney General retained substantial means to ensure lawful and competent performance because he could personally remove the counsel for good cause, including misconduct. Congress viewed this protection as necessary to secure independence in investigations of high-ranking executive officials, and the Court concluded that it did not strip the Executive of sufficient control to violate Article II.

The Act did not aggrandize Congress at the Executive's expense. Congress could request that the Attorney General seek an appointment and could receive reports and conduct oversight, but it could not appoint, direct, supervise, or remove an independent counsel, apart from impeachment authority applicable to all federal officers.

The Special Division did not initiate appointments on its own. It could appoint a counsel only after an Attorney General request, and, once the counsel was appointed and jurisdiction defined, the court could not supervise the investigation or prosecution. Judicial review of a removal decision was a familiar judicial function aimed at ensuring compliance with the statutory good-cause standard.

The Act undoubtedly reduced the President's ordinary control over a defined category of prosecutions: the Attorney General did not choose the counsel, did not set the final jurisdiction, and could not remove the counsel at will. But the Attorney General controlled whether any counsel would be requested in the first place, retained unreviewable discretion not to request one when he found no reasonable grounds for further investigation, supplied the factual basis for jurisdiction, could remove for good cause, and benefited from the statute's requirement that the counsel generally follow Justice Department policy. Those safeguards left the Executive with sufficient authority to perform its constitutional functions.