## Facts

- A dispute arose between Congress and the Executive Branch over production of Environmental Protection Agency documents related to Superfund enforcement.
- The House Judiciary Committee investigated alleged obstruction and misleading testimony by senior Department of Justice officials in connection with document production.
- The Committee referred its findings to the Attorney General under the independent-counsel provisions of the Ethics in Government Act of 1978, 28 U.S.C. §§ 591–598.
- A Special Division of the D.C. Circuit appointed Alexia Morrison as independent counsel to investigate and prosecute potential crimes by three former DOJ officials, including Theodore B. Olson.
- Morrison obtained grand-jury subpoenas; the subpoenaed officials refused compliance and moved to quash, asserting the statute was unconstitutional.
- The district court upheld the statute, denied the motions to quash, and issued contempt orders for continued noncompliance.
- The officials appealed; the D.C. Circuit consolidated the matters under a sealed caption.

## Issues

1. Whether the independent counsel is a principal officer who must be appointed by the President with Senate confirmation under the Appointments Clause.
2. Whether, even if the independent counsel is an inferior officer, Congress may vest appointment power in an Article III court for an officer exercising prosecutorial authority.
3. Whether the statutory limits on presidential control—especially good-cause removal and judicial involvement in removal—violate separation-of-powers principles.
4. Whether assigning appointment, jurisdiction-defining, reporting, and removal-related functions to an Article III Special Division violates Article III limits on nonjudicial duties.

## Decision

- The D.C. Circuit reversed the district court and held the independent-counsel provisions unconstitutional.
- The court concluded the independent counsel functioned as a principal officer due to broad, ongoing authority and insufficient subordination to any executive superior; thus judicial appointment violated the Appointments Clause.
- The court further held that, even if treated as an inferior officer, the scheme impermissibly interfered with the President’s Article II duty to ensure faithful execution of the laws by placing key prosecutorial power beyond effective presidential control.
- The court set aside contempt orders predicated on the independent counsel’s asserted authority to compel compliance with the subpoenas.

## Legal Principles

- An officer exercising substantial and continuing prosecutorial discretion, with limited supervision and substantial autonomy over an investigation’s scope and duration, may be deemed a principal officer for Appointments Clause purposes.
- Vesting appointment of an officer who exercises core executive prosecutorial power in an Article III court raises serious Appointments Clause and structural Article II concerns.
- Separation of powers requires that the President retain sufficient control over officials who execute federal criminal law; statutory insulation from direction and constrained removal may be unconstitutional when it materially impairs that control.
- Assigning judges nonadjudicatory administrative responsibilities closely tied to executive enforcement (appointment, jurisdiction definition, oversight reports, and removal involvement) can violate Article III limits and reinforce separation-of-powers defects.

## Conclusion

The D.C. Circuit invalidated the Ethics in Government Act’s independent-counsel mechanism, reasoning that the office’s prosecutorial autonomy made it constitutionally incompatible with judicial appointment and with limits on presidential control over law enforcement, and it vacated contempt orders issued to enforce subpoenas issued by the independent counsel.


In re Sealed Case (Three Cases), 838 F.2d 476 (D.C. Cir. 1988)