Article: a symposium on morrison V. Olson: addressing the constitutionality of the independent counsel statute: executive c

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LEXSEE 38 AM. U.L. REV. 275
Copyright (c) 1989 The American University Law Review

American University Law Review
WINTER, 1989
38 Am. U.L. Rev. 275
LENGTH: 15835 words
* Assistant Professor of Law, University of Virginia. I would like to thank Pamela Karlan, Michael Klarman, Peter Low, Charles McCurdy, George Rutherglen, William Stuntz, and Nicholas Zeppos for offering comments on an earlier draft. I would also like to thank Jeffrey Beyle, Joni Gamble, and Daniel Vogel for their research assistance. Finally, as an attorney for the Department of Justice from 1983-1987, I participated in the early phases of the independent counsel litigation. The views expressed in the Article, however, are my own.

... In essence, the Court determined that Congress' interest in providing for an impartial investigation of senior executive branch officials outweighed the intrusion on the Executive's prerogative to control criminal law enforcement. ... In this Article, I will focus on the question left unanswered by the majority and argue that, at least from a historical perspective, criminal law enforcement cannot be considered a core or exclusive power of the executive branch. Resolving whether criminal law enforcement is an exclusive executive branch function is critical not only to assess the propriety of the Supreme Court's decision in Morrison, but also to gauge its scope. ... When Congress under the 1789 Judiciary Act established the office of district attorney, it implicitly vested the district attorneys with exclusive authority to prosecute all federal crimes within their jurisdiction. ... Upon application of a private citizen, Justice Livingston issued warrants against three suspects for violation of the Neutrality Act. ... Congress in 1806 and in 1808 granted to certain county courts in New York and Pennsylvania "cognizance of all complaints and prosecutions for fines, penalties and forfeitures arising under the United States revenue laws," including the power "to exercise all and every power in the cases of a criminal nature, cognizable before them . . . for the purpose of obtaining a mitigation or remission of any fine, penalty or forfeiture." ...


In Morrison v. Olson, n1 the Supreme Court held that Congress may vest prosecutorial authority in a government official independent of the President's effective control. Although the majority recognized that the independent counsel statute n2 "reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity," n3 it concluded that the President retained "sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties." n4 In essence, the Court determined that Congress' interest in providing for an impartial investigation of senior executive branch officials outweighed the intrusion on the Executive's prerogative to control criminal law enforcement. n5

In a sharp dissent, Justice Scalia rejected the Morrison majority's premise that granting the independent counsel a measure of statutory tenure n6 comported with the President's constitutional responsibility to "take care" that the laws are faithfully executed. n7 Fragmenting control over criminal law enforcement, in his view, undermined the constitutional mandate for a unitary executive. n8 To buttress that determination, Justice Scalia, as had the Court of Appeals [*277] for the District of Columbia, n9 asserted that criminal law enforcement is a "core" or exclusive function of the executive branch, which must be directed by the President or by someone under the President's control. n10 He concluded that "the President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law." n11

The assertion that criminal law enforcement is a core executive function carries a certain ring of plausibility. To many, criminal law enforcement is almost synonymous with the executive arm of the state. Several Supreme Court opinions have suggested as much, n12 and statements to that effect appear in lower court opinions. n13

Although the asserted special status of criminal law enforcement constituted one of the principal disputes in the court of appeals, n14 the majority in Morrison never addressed the issue directly. The [*278] Supreme Court stated only that "[t]here is no real dispute that the functions performed by the independent counsel are 'executive' in the sense that they are law enforcement functions that typically have been undertaken by officials within the executive branch." n15 The Morrison majority skirted the question whether criminal law enforcement stands on a different footing from the exercise of other executive branch functions, such as implementation of the civil laws passed by Congress or conduct of foreign relations.

In this Article, I will focus on the question left unanswered by the majority and argue that, at least from a historical perspective, criminal law enforcement cannot be considered a core or exclusive power of the executive branch. Resolving whether criminal law enforcement is an exclusive executive branch function is critical not only to assess the propriety of the Supreme Court's decision in Morrison, but also to gauge its scope. If criminal law enforcement rests uniquely within the executive's control, then the validity of the Court's analysis would be open to serious question. n16 Moreover, the Court's decision would then suggest that Congress can interfere substantially with other "special" or "core" executive functions, such as the foreign relations power. n17

If, on the other hand, contrary to past judicial pronouncements, criminal law enforcement does not warrant such distinctive status, that finding would bolster the result reached by the Morrison Court. Congress could then exercise at least some discretion in shaping how criminal laws are to be enforced, though perhaps not as fully as it has historically in the civil context by establishing independent agencies to implement broad statutory mandates. n18 At the same [*279] time, the Morrison analysis might not necessarily apply in areas subject to more exclusive Presidential direction. n19

Most commentators agree that the Executive's power vis-a-vis the other branches rests on a continuum. n20 At one end is the discharge of ministerial duties in civil matters, a function subject to considerable congressional and judicial intrusion. n21 There is generally no dispute that Congress can direct an officer in the executive branch to make a report to Congress n22 or to pay a specified amount to a claimant. n23 At the other end of the spectrum are the discretionary conduct of foreign relations and authority to grant pardons, powers with which Congress and the judiciary can only minimally interfere. n24 The Executive's more routine responsibility to exercise discretion [*280] in executing the broad mandates passed by Congress lies somewhere between the two poles. Because there is probably no presidential task completely immune from congressional regulation, n25 some accommodation among the branches is required to determine whether a disputed congressional measure unduly intrudes into the prerogatives of the President. n26 The accommodation, however, will differ substantially depending upon the nature and source of the executive power at stake. Thus, the question avoided by the Morrison majority concerns where on the continuum the Executive's responsibility for criminal law enforcement should lie, towards the end with the foreign relations power, or towards the middle, closer to the Executive's duty to implement the many non-criminal laws enacted by Congress.

There is no question but that the Executive historically has enjoyed substantial authority in overseeing and coordinating criminal law enforcement efforts. The executive branch of the new nation enjoyed greater authority in criminal law enforcement than had the comparatively impotent Executive under the Articles of Confederation and even in comparison to the executive governments in the colonies and newly-formed states. n27

[*281] Yet from the inception of the republic, the President has not exercised total dominion over criminal law enforcement matters. Despite the executive branch's leading part, Congress, the courts, private citizens, and state officials have played significant supporting roles in federal criminal law enforcement. Although the historical record may not answer directly the precise question reached by the Supreme Court -- whether federal prosecutors must be subject to the President's plenary removal authority -- it lends considerable support to the majority's conclusion that Congress retains wide latitude in deciding the extent and manner of the Executive's criminal law enforcement efforts. n28

In this Article, I do not by any means purport to present a definitive historical account of the Executive's criminal law enforcement efforts. I will, however, dispute Justice Scalia's implicit conclusion that criminal law enforcement must be historically viewed as a core executive function. After briefly addressing in Part I the constitutionally prescribed role of Congress in shaping criminal law enforcement policy, I will focus in Part II on three contexts in which Congress has acted "affirmatively" to circumscribe executive control.

First, Congress for almost a century directed that criminal law enforcement responsibility be decentralized, entrusting the bulk of such efforts to part-time district attorneys who had little contact with the President and his subordinates in the nation's capital. Second, private citizens, even after the Constitution was ratified, continued to play a prominent role in enforcing the criminal laws, just as they did at common law and continue to do today in England. Third, the initial and succeeding Congresses vested federal criminal law enforcement responsibilities in state officials, thereby removing a segment of overall enforcement from the Executive's direct control. Thus, Congress, by determining both who can enforce the criminal laws and how those laws should be enforced, has long helped shape and confine the Executive's discretion in criminal law enforcement matters.


Before examining the historical underpinnings of the majority's [*282] conclusion in Morrison, it is helpful to sketch the respective constitutional powers of Congress and the Executive in shaping federal criminal law enforcement. n29 The Constitution explicitly grants neither the Executive nor the legislative branches full control over federal criminal law enforcement. n30 To be sure, the Constitution vests the President with the "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment," n31 but it nowhere directs the President explicitly to assume unfettered control of criminal law enforcement. n32 Similarly, the Constitution directs the Executive to "take care that the laws be faithfully executed," n33 yet does not distinguish between criminal and civil law enforcement. From a textual analysis, therefore, the President's control over enforcement of the criminal laws seems to stand on much the same footing as civil law enforcement: certainly, the Executive is to carry out the law in both contexts, but that duty is shaped largely by the "laws" that Congress enacts. n34

In contrast to the President's uncertain responsibilities, the Constitution affords Congress a more tangible role in shaping criminal law enforcement. First, the Constitution assigns Congress the fundamental task of defining the content of criminal laws. Congress retains the discretion to table or modify any criminal law proposed by the executive branch. Indeed, Congress historically has refused [*283] to enact many criminal laws suggested by the executive branch. n35 Even if the Executive urges that such laws are imperative because of the threat that particular conduct poses to the well-being of the nation, Congress may disagree and refuse to act. n36 Conversely, if Congress objects to the Executive's enforcement of a particular criminal law, Congress can of course repeal or suspend the law. n37

Second, the Constitution also grants Congress some authority to decide how the criminal laws are to be enforced. Congress may specify what penalties are to be assessed for various criminal violations, n38 what law enforcement agencies have jurisdiction over particular criminal investigations, n39 and what procedures the executive branch must follow in investigating crimes. n40 As an initial matter, therefore, Congress and not the President decides how best to meet criminal law enforcement objectives. Moreover, even after enactment of a criminal law, Congress may decide to confer amnesty upon those who have violated that law and thereby directly participate [*284] in criminal law enforcement. n41

Third, Congress' control over the appropriations process affords the legislature a potent weapon with which to influence the Executive's criminal law enforcement authority. n42 Article I, section 9 provides that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Justice Story explained that but for the appropriations clause,

the executive would possess an unbounded power over the public purse of the nation; and might apply all its moneyed resources at his pleasure. The power to control and direct the appropriations constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public peculation. n43

Congress has in fact made it a crime for any executive official to spend monies in excess of that appropriated by Congress. n44 As with its authority to define the content of the criminal laws, Congress' control over the purse strings represents a "negative" restraint on the Executive's duty to enforce the criminal laws. n45 The Executive [*285] must obtain Congress' agreement prior to taking any law enforcement measure which expends resources. n46

The constitutional structure does not directly answer the question whether Congress may vest criminal law enforcement authority in an officer independent of the President's plenary removal authority. Yet our system of separated powers affords Congress the ability to influence the Executive's enforcement of the criminal laws in various ways. Congress' powers to decide which conduct to make criminal, to prescribe how the Executive is to enforce such laws, and to appropriate funds only for criminal law enforcement purposes which it approves provide a structure within which Congress can check the Executive's control over criminal law enforcement.


The constitutionality of the independent counsel statute hinges upon Congress' power to designate the personnel who are to exercise federal criminal law enforcement responsibility. Congress at a minimum enjoys the authority to determine which executive branch agency is to carry out specific criminal enforcement functions; n47 the question posed by the independent counsel statute concerns whether Congress may in addition vest enforcement responsibilities [*286] in personnel who are not subject to the President's plenary removal power. In other words, the issue focuses on whether Congress' exercise of its Article I authority to determine the manner in which the federal criminal laws are to be enforced has intruded into the Executive's Article II prerogative to enforce the criminal laws. Examination of prior congressional enactments is quite illuminating, for Congress has vested criminal law enforcement responsibility not only in senior executive branch officials but also in executive branch officials insulated from direct control of the Attorney General, in individuals shielded from any executive branch control, and in state officials similarly independent of the executive branch's supervision.

A. The Absence of Centralized Control Within the Executive Branch Over Criminal Law Enforcement

From an early period, Congress limited the Executive's effective control over criminal law enforcement "affirmatively" by dispersing supervisory responsibility among various executive officials. Congress vested limited supervisory authority in the Attorney General, declining to provide him with the means to develop and implement effective federal policy to combat crime. Although there were marshals and deputy marshals who served as federal enforcement officials, the Executive also had to rely on private citizens and state officials to aid in apprehending and holding criminals. n48 The deputy marshals were subject to removal not by the Executive, but by the courts. n49 The reality of a vigorous, unified criminal law enforcement machine in the executive branch is of comparatively recent origin.

Although Congress created the office of Attorney General in the 1789 Judiciary Act, it vested that office with only limited power. Congress directed the Attorney General "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments. . . ." n50 Yet Congress provided the Attorney General with no mechanism for supervising the federal district attorneys. n51 The Attorney General [*287] might not learn of suits progressing in the newly created trial courts, had virtually no say in the positions taken by the district attorneys in such suits, and had little opportunity to coordinate the positions taken by the district attorneys. As a result, the Attorney General could not shape the record in cases winding their way to the Supreme Court. n52 Attorney General Randolph soon complained that:

[I]t may frequently arise that the United States may be deeply affected by various proceedings in the inferior courts, which no appeal can rectify. The peculiar duty of the Attorney General calls upon him to watch over these cases; and being, in the eye of the world, responsible for the final issue, to offer advice at the earliest stage of any business; and indeed, until repeated adjudications shall have settled a clear line of partition between the federal and State courts, his best exertions cannot be too often repeated to oppose the danger of a schism. For this purpose the attorneys of the districts ought, I conceive, to be under an obligation to transmit to him a state of every case in which the harmony of the two judiciaries may be hazarded, and to communicate to him those topics on which the subjects of foreign nations may complain in the administration of justice.

Perhaps, too, in the review which the President takes of the affairs of the Union at the opening of each session of Congress, the judicial department will be comprehended. But the Attorney General, who ought to be able to represent the true situation of it, must be forever incompetent to the task until he may officially, and with the right of expecting an answer, propound his inquiries to the district attorneys. n53

Congress, however, failed to respond to Randolph's entreaty. n54

During President Washington's administration, the Secretary of State evidently assumed titular responsibility for supervising the district attorneys, although that supervision was lax. n55 Moreover, the [*288] district attorneys did not even have control over all legal proceedings in their districts, for Congress vested the Comptroller of the Treasury with the power and discretion to institute legal proceedings in cases of delinquent revenue officers. n56 In 1816, President Madison complained to Congress of the lack of overall coordination of the nation's legal affairs. n57 Congress, however, declined to vest the Attorney General with greater power, and several years later merely transfered the Comptroller's power to a new Agent of the Treasury n58 and vested that agent with the authority to supervise the district attorneys. n59

Similarly, when President Jackson later protested to Congress that this bifurcated authority resulted in inefficient and insufficient law enforcement control, Congress chose not to centralize authority in the Attorney General, as Jackson had sought, but instead created a new office, Solicitor of the Treasury, with powers comparable to those formerly enjoyed by the Agent of the Treasury. n60 While some in Congress agreed with the President that unifying control over law enforcement would enhance the Executive's authority to enforce the [*289] law effectively, n61 others were suspicious of adding duties to the office of the Attorney General. n62 Jackson signed the bill, but lamented that:

[T]he public interest would be greatly promoted by giving to that officer [the Attorney General] the general superintendance of the various law agents of the Government, and of all law proceedings, whether civil or criminal, in which the United States may be interested. . . . n63

In the succeeding years, new executive efforts to centralize responsibility and control of law enforcement matters were unsuccessful. n64 Indeed, even the Solicitor of the Treasury had reason to complain, importuning Congress that:

It is respectfully suggested that criminal cases be reported to the solicitor in the same manner as those of a civil nature. . . . A general supervisory power over these cases would enable the solicitor to give such instructions to marshals and district attorneys as would secure the apprehension of many dangerous criminals who might otherwise escape by fleeing from one district to another. n65

It was not until the centripetal pressures of the Civil War that Congress agreed to begin centralizing law enforcement authority. n66

For almost a century, Congress thus withheld the means necessary to enable the Executive to coordinate effective control over criminal law enforcement. By diffusing supervisory responsibility, n67 Congress circumscribed the Executive's practical ability to control law enforcement. Therefore, any claim that criminal law enforcement is a "core" or exclusive executive power must explain the embarrassing [*290] early history of largely ineffective executive control over law enforcement matters.

As this historical perspective suggests, the Attorney General need not be vested with the authority to oversee or trigger an investigation by the independent counsel. Rather, that role could, consistent with historical practice, be assigned to the United States Attorney for the Southern District of New York or to any other officer within the executive branch. Indeed, the Department of Justice need not be involved at all in the investigation and prosecution. There traditionally has been no requirement of a centralized criminal justice bureaucracy. n68

To be sure, the limited funding and dispersal of authority within the executive branch by themselves do not imply that Congress, or anyone other than an officer removable at the President's pleasure, has ever exercised a direct role in criminal law enforcement. What federal criminal law enforcement existed could still have remained within the Executive's control, subject only to Congress' appropriations power. But the decentralization does suggest that the President historically has not been able to structure the Executive's law enforcement machinery in the way he sees fit -- rather, Congress has joined in determining that structure.

B. Participation by Private Parties in Criminal Law Enforcement

Congress has also acted in more direct ways to shape the contours of criminal law enforcement, particularly by vesting significant responsibility in private citizens. Congress has long assigned some criminal law enforcement responsibility outside of the Executive's control altogether. Although that responsibility has today diminished, the past participation by private citizens in criminal law enforcement indicates that the Executive has not historically enjoyed exclusive authority over criminal law enforcement measures.

1. The role of individuals in criminal law enforcement prior to the ratification of the Constitution

At common law in England, law enforcement actions generally were initiated and prosecuted by the individuals who were victims of crime. Crime was viewed not as an attack upon the public, but essentially as an attack upon the individual victim. n69 At their own expense, victims could initiate prosecutions against those suspected of [*291] theft, battery, and other crimes, and they would typically hire attorneys to prosecute the cases. n70 For the victims, personal access to the criminal justice system replaced the prior tradition of individual or family retribution.

Because of the expense involved in private prosecution, Parliament provided a series of monetary incentives to encourage suits. In some contexts, a successful prosecutor could recover the costs of the suit, in others, a victim could obtain restitution, and in still others, the victim could gain double damages from the defendant. Damages were considered part of the criminal case. n71 Although by the eighteenth century public officials in England prosecuted "public" crimes in the name of the king, n72 the criminal law enforcement system was largely dependent upon the actions of private individuals.

To augment the private law enforcement scheme, Parliament also provided incentives for persons other than victims to participate in law enforcement activities. If a private individual successfully initiated and then completed a prosecution against a wrongdoer, he or she could split a statutory fine or forfeiture with the government. n73 These civil suits, so-termed "qui tam" actions, n74 grew out of the criminal statute and were considered an integral means of promoting criminal law enforcement. Qui tam actions served as a type of informer's statute, encouraging those aware of criminal activity to come forward to help enforce the laws.

The system of private law enforcement existed, with variations, in the colonies. n75 Although the importance of public prosecutors grew with the expansion and increasing mobility of the population, n76 individuals still played a fundamental role in the criminal justice system. Private citizens initiated prosecutions directly or sued via qui tam actions to collect penalties owed to the state. n77 In the United States, because the Articles of Confederation did not provide for general [*292] federal criminal law enforcement, n78 private citizens were primarily responsible for criminal law enforcement in the period prior to the ratification of the Constitution.

2. The role of private citizens in criminal law enforcement under the Constitution

The creation of a formidable federal executive power in the Constitution did not automatically end the participation of private citizens in enforcing the criminal law. Although Congress never vested victims with a general right to prosecute defendants under federal criminal provisions, citizens in the first years under the Constitution evidently presented evidence of crimes directly to the grand jury. n79 More commonly, individuals continued as at common law to bring evidence of crimes before magistrates and then, upon the magistrate's approval, to obtain a bench warrant for the defendant's arrest. n80 Without any involvement from the district attorneys, [*293] therefore, grand juries issued presentments of crimes n81 and judges ordered suspects arrested, pending trial. More importantly, Congress enacted a web of civil qui tam provisions that authorized victims and non-victims alike to help enforce the criminal laws.

a. Initiation of prosecutions by private citizens

After ratification of the Constitution, victims did not directly participate in criminal prosecutions in federal court, as they had in the colonies and continued to a certain extent to do in the states. n82 When Congress under the 1789 Judiciary Act established the office of district attorney, it implicitly vested the district attorneys with exclusive authority to prosecute all federal crimes within their jurisdiction. n83

Nonetheless, private citizens helped initiate prosecutions by contacting the grand jury and attempting to persuade it to issue presentments against suspects. More commonly, judges on their own volition exhorted grand juries to investigate certain conduct or to issue presentments against particular individuals. n84 Members of the grand jury could share with other members any evidence of crime that came to their attention. n85 Although individuals or judges were also free to present evidence of wrongdoing to the district attorneys, they retained the discretion to bypass the executive branch at this early stage of the criminal process and contact the grand jury directly.

An early opinion by Attorney General Bradford indicates that the colonial practice of privately-initiated prosecutions continued at [*294] least for a brief period under the Constitution. n86 Bradford responded to a request made by the Secretary of State on behalf of the British consul stationed in Norfolk, Virginia. n87 Apparently, a crowd had gathered outside the consul's residence in early 1794, insulting him and demanding that he deliver individuals within the residence to the crowd, presumably because the crowd believed that the individuals had committed various criminal violations. n88 The district attorney declined to prosecute members of the crowd on the ground that violence perpetrated upon a consul did not constitute a federal crime. n89

Despite agreeing with the district attorney that federal prosecution was not warranted, the Attorney General apprised the Secretary of State that an avenue of redress was still available to the consul. Attorney General Bradford stated that:

[I]f the party injured is advised or believes that the federal courts are competent to sustain the prosecution, I conceive he ought not to be concluded by my opinion or that of the district attorney. If he desires it, he ought to have access to the grand jury with his witnesses; and if the grand jury will take it upon themselves to present the offense in that court, it will be the duty of the district attorney to reduce the presentment into form, and the point in controversy will thus be put in a train for judicial determination. n90

The Attorney General thus plainly believed that private citizens could, in effect, lobby the grand jury, even if the Executive had already determined not to press charges. n91

Instead of contacting the grand jury directly, private citizens could appear before a federal or state judicial official and swear out a complaint against a suspected criminal. The magistrate was empowered to order the defendant incarcerated pending further proceedings before a grand jury. Since there was no federal police force and there were so few district attorneys, this direct involvement of private citizens was important to effective law [*295] enforcement. n92

The proceedings in United States v. Skinner n93 are illustrative. Upon application of a private citizen, Justice Livingston issued warrants against three suspects for violation of the Neutrality Act. n94 This Act proscribed, in part, outfitting ships with the intent of employing those ships against foreign nations with whom the United States was at peace. n95 The Act set criminal penalties and included a qui tam provision providing that, upon conviction, the ships would be forfeited. n96

Counsel for the defendants moved in part that their clients be released on the ground that the prosecution had been commenced without direction from the government. n97 Private counsel for the informer argued that the involvement of the district attorney was not needed, and the court agreed in emphatic terms:

[N]o instructions were necessary on the part of the president, or any other officer of government, to justify the issuing a warrant for the violation of this or any other law. . . . Nor was it necessary that the application for a warrant should be made by the district attorney, as any individual might complain of the infraction of a law, and he considered it his duty to award a warrant whenever complaint was made to him on oath of a crime's being committed, whether such warrant were applied for by the district attorney or any other person. n98

Prosecutions were thus launched by private initiative, and private citizens could participate in the legal process even after the arrest. n99

[*296] Despite the involvement of private citizens at the initial phase of criminal prosecutions, district attorneys apparently retained the discretion not to act on presentments brought by grand juries. n100 Public prosecutors on numerous occasions dropped prosecutions for any number of reasons, whether for reasons of strategy, legal judgment, or politics. n101 As Chief Justice John Marshall noted, "[t]he usage in this country has been, to pass over, unnoticed, presentments on which the [district] attorney does not think it proper to institute proceedings." n102 The case in Hill itself arose out of the district attorney's issuance of a series of nolle prosequis. n103 Thus, while individuals played a role in starting the prosecution process, they did not control the prosecutions once begun.

b. Qui tam actions

In addition to initiating criminal prosecutions, private citizens also indirectly participated in enforcing the criminal law through civil qui tam actions. Within the first decade after the Constitution was ratified, Congress enacted approximately ten qui tam provisions authorizing individuals to sue under criminal statutes to help enforce the law. n104 For example, under a regulatory act passed in [*297] 1791, Congress specified duties on liquor imported from abroad as well as on that manufactured domestically. The law made criminal the willful failure to pay the duties and set a range of penalties and forfeitures correspondingly. Congress further provided that:

One half of all penalties and forfeitures incurred by virtue of this act shall be for the benefit of the person or persons who shall make a seizure, or shall first discover the matter. . . . And any such penalty and forfeiture shall be recoverable with costs of suit, by action of debt, in the name of the person or persons entitled thereto, or by information, in the name of the United States of America; and it shall be the duty of the attorney of the district wherein any such penalty or forfeiture may have been incurred, upon application to him, to institute or bring such information accordingly. n105

Thus, as was relatively typical, Congress provided what we would now consider to be both civil and criminal penalties for the same conduct, and authorized private citizens to bring defendants to justice "by action of debt." n106 Moreover, the district attorney, upon receiving evidence of a criminal violation, was not authorized to use independent discretion in determining whether to bring a criminal action.

Through the qui tam actions, private citizens helped enforce the criminal laws. Such actions were long considered quasi-criminal. Indeed, during the nineteenth and early twentieth centuries, civil qui tam actions represented the functional equivalent of criminal prosecution, and initiation of a qui tam action probably precluded the executive branch from initiating its own criminal prosecution for [*298] the same conduct. n107

The Supreme Court first addressed the nature of "civil" qui tam actions in Adams, qui tam v. Woods. n108 The question raised was whether the two-year statute of limitations prescribed for all criminal prosecutions applied to a qui tam action. n109 The plaintiff had sued the defendant under a criminal provision which made it unlawful for any individual to carry on the slave trade from the United States to a foreign nation. n110 The plaintiff argued that, because the qui tam suit was a civil action, the two-year statute of limitations was inapplicable. The Supreme Court rejected that argument, reasoning that the statute protected individuals from punishment, no matter whether by the government in a criminal prosecution, or by an individual through a "penal" qui tam civil action. Chief Justice Marshall noted that:

[A]lmost every fine or forfeiture under a penal statute may be recovered by an action of debt, as well as by information; and to declare that the information was barred, while the action of debt was left without limitation, would be to attribute a capriciousness on this subject to the legislature, which could not be accounted for. n111

Courts during the ensuing century also viewed qui tam actions as criminal for purposes of applying the fifth amendment privilege against self-incrimination. For example, in Newgold v. American Electrical Novelty & Mfg. Co., n112 the plaintiff moved to compel the defendant to produce his books and papers in order to demonstrate certain alleged patent infringements. The court, however, denied the motion, ruling that compelled production in the qui tam setting -- unlike in a civil context -- would violate the defendant's privilege against self-incrimination. n113 The court noted that the qui tam provision [*299] at stake "not only describes the recovery as a penalty, but omits altogether any special reference to any private injury to the patentee, [and] seems to contemplate only the deceit of the public and the public wrong." n114

Similarly, courts also construed qui tam actions to require plaintiffs to prove liability under the "beyond a reasonable doubt" standard of proof reserved for criminal actions. n115 In United States v. Shapleigh n116 the government had sued under the False Claims Act to recover for the defendant's alleged overcharge of merchandise to the United States Army. The court acknowledged that "[i]n controversies of a civil nature the purpose is generally to obtain the determination of some rights of person or property, or to recover compensation for some injury." n117 But in qui tam actions, the court continued, "the government enacts a statute which provides that a case in its nature criminal, whose purpose is punishment . . . and whose successful prosecution disgraces the defendant, and forfeits his property to the state as a punishment for crime," is civil in form. The court concluded that the form should not be controlling, for "[e]very consideration which induced the courts to establish the rule that the prosecutor must prove the crime charged beyond a reasonable doubt . . . demands that this rule be applied [in the qui tam setting]." n118

[*300] Because qui tam actions historically were viewed as criminal or quasi-criminal, Congress, by authorizing such actions, determined that private individuals could don the mantle of a public prosecutor. To a substantial extent, those proceedings were treated as criminal for purposes of statutes of limitation, evidentiary rulings, and the relevant standard of proof. n119 In the proceedings, private individuals represented the United States in construing the reach and import of the relevant criminal provisions, in selecting the appropriate penalty, and in arguing any jurisdictional or procedural questions which arose in the case. By shaping precedents, as well as by litigating specific cases, individuals through qui tam actions unquestionably participated in setting federal criminal law policy.

The significant role afforded private citizens in law enforcement looms larger when considering that initiation of a qui tam action, at least during the late nineteenth and early twentieth centuries, n120 likely precluded a subsequent criminal action based upon the same conduct. In that period, the Supreme Court held in a series of cases that, after institution of criminal proceedings, double jeopardy precluded a defendant from being sued for what we would consider today civil penalties. In United States v. Chouteau, n121 for example, the government had sued a distiller for defrauding the government of tax revenues under Rev. Stat. 3303, after settling a prior criminal prosecution. The Supreme Court held that the government could not proceed with the civil suit:

Admitting that the penalty may be recovered in a civil action, as well as by a criminal prosecution, it is still as a punishment for the infraction of the law. The term "penalty" involves the idea of punishment, and its character is not changed by the mode in which it is inflicted, whether by civil actions or a criminal prosecution. n122

Only one suit for penalties could therefore be instituted, irrespective of its form, and the sequence of the suits was irrelevant. n123

[*301] Because civil qui tam actions were viewed as "penal," institution of a qui tam action apparently precluded a later criminal action. In the qui tam setting, the court in Shapleigh explained that:

[W]here provision is made by statute for the punishment of an offense by fine or imprisonment, and also for the recovery of a penalty for the same offense by a civil suit, a trial and judgment of conviction or acquittal in the criminal proceeding is a bar to the civil suit, and a trial and judgment for the plaintiff or defendant in the civil suit is a bar to the criminal proceeding. n124

The qui tam action thus was dispositive of any subsequent criminal proceeding. n125 Because the qui tam action, like a criminal prosecution, was brought on behalf of the United States, and because the two actions were nearly identical in terms of penalty prescribed, statutes of limitation, evidentiary considerations, and burden of proof, the preclusive effect of one on the other seems logical. n126 Such was the result in at least some state courts. n127 Therefore, by authorizing civil qui tam actions in the past, n128 Congress not merely [*302] supplemented but also to some extent supplanted the Executive's role in enforcing criminal provisions.

Nor could the government intervene to take charge of the civil qui tam action once filed. The court in United States v. Griswold articulated the conventional view that "although the United States is the plaintiff, [the private plaintiff] is its authorized representative, and not the district attorney, who is not authorized or required to act or interfere in the matter, otherwise than as expressly provided by the statute." n129 By authorizing civil qui tam actions, therefore, Congress partially displaced executive authority over enforcing criminal statutes. n130

Congress thus has long acted affirmatively to circumscribe the Executive's overall authority over criminal law enforcement. In authorizing civil qui tam actions, Congress limited the Executive's ability not only to control all law enforcement, but even to initiate its own criminal prosecution for the same conduct. As with contemporary citizen suits, n131 Congress determined that private enforcement was needed to supplement executive branch oversight. Congress clearly has limited overall executive control in experimenting with other ways to ensure effective criminal law enforcement. n132

[*303] In accordance with the historical tradition, therefore, Congress could vest in private citizens the power to trigger the criminal investigation of high-ranking officials within the executive branch. Information gathered by private citizens could provide grounds for appointment of an independent counsel. Alternatively, by authorizing a qui tam action, Congress could permit private citizens to sue the government officials to collect penalties incurred because of misfeasance in office. The history of involvement by private parties in federal criminal prosecutions lends considerable support to the result reached in the independent counsel case.

C. Prosecutorial and Investigative Functions Vested in State Officials

The first Congresses feared that exclusive reliance upon federal law enforcement machinery would not suffice to enforce the penal laws of the nation. In addition to affording individuals significant enforcement responsibility, Congress vested jurisdiction in state courts over actions seeking penalties and forfeitures, granted concurrent jurisdiction to state courts over some criminal actions, and assigned state officials auxiliary law enforcement tasks. Thus, Congress assigned law enforcement responsibility to state officials who were far removed from control of the executive branch.

Initially, Congress vested district courts with the jurisdiction "exclusively of the courts of the several States" over all crimes and offenses "that shall be cognizable under the authority of the United States." n133 The Act further vested the circuit courts with concurrent jurisdiction over the same criminal offenses. n134 At the time, Federalists apparently wished to preserve as much authority as possible for the national government, but they as well as anti-Federalists agreed that jurisdiction over federal offenses did not have to be vested exclusively in federal courts. n135

Congress soon determined that including state courts in its grant of jurisdiction over penal offenses would aid law enforcement efforts. In 1794, for example, Congress provided in the Carriage Tax [*304] Act that all fines, penalties, and forfeitures might be sought "before any magistrate or state court, having competent jurisdiction." n136 A similar jurisdictional provision was included in the License Tax on Wines and Spirit Act. n137 Also in 1794, Congress vested in state courts jurisdiction not only over qui tam actions but also over "all suits, actions, and causes of action" arising out of the laws for collecting revenue upon stills and spirits distilled in the United States accruing more than fifty miles from the nearest federal district court. n138 Other penal provisions could be enforced similarly in the state courts. n139

As discussed previously, actions for penalties and fines were viewed largely as criminal in those years; indeed, some of the provisions might still be viewed as criminal today. The decisions whether to sue and what punishments to seek remained in the discretion of individuals outside the Executive's control. Vesting such jurisdiction in state courts made the executive branch, to a certain extent, dependent upon state officials in executing federal laws. State magistrates, judges, and juries all played integral parts in upholding the efficacy of the enforcement scheme. Whatever modest influence the Executive could wield over federal judges, who had been appointed by the President and remained subject to congressional oversight, certainly did not exist at the state level. Indeed, some members of Congress objected to granting state courts jurisdiction over penal actions for just that reason. n140

Furthermore, Congress assigned state officials specific law enforcement tasks as well as authorizing jurisdiction in their courts. Congress in 1806 and in 1808 granted to certain county courts in New York and Pennsylvania "cognizance of all complaints and prosecutions for fines, penalties and forfeitures arising under the United States revenue laws," including the power "to exercise all and every power in the cases of a criminal nature, cognizable before them . . . for the purpose of obtaining a mitigation or remission of any fine, [*305] penalty or forfeiture." n141 Thus, Congress vested the state courts with the authority not only to preside over federal penal actions, but also to exercise discretion in recommending to the Secretary of the Treasury whether or not federal law enforcement would best be served by remitting particular punishments. Accordingly, some federal criminal law enforcement decisions were largely dependent upon the discretion exercised by state officials. In vesting such jurisdiction and authority in state courts, Congress followed the tradition first adopted under the Articles of Confederation. n142

Congress vested other auxiliary law enforcement duties directly in state officials. Under the Fugitive Slave Act of 1793, n143 Congress directed state magistrates to arrest alleged fugitives, and then upon a proper showing, to issue a certificate to permit removing the slaves from the jurisdiction. n144 Under the Alien Enemy Act of 1798, n145 the state courts were empowered to direct the apprehension of aliens and to order their removal after a hearing. n146 State officials were also given the power to arrest deserting seamen. n147 Although the tasks required by Congress cannot be characterized as prosecution, they were certainly related to criminal law enforcement. n148 Congress directed that state officials could arrest those suspected of violating federal law, and then determine whether or not to deprive the individuals of freedom through either deportation or a remand to servitude.

In addition, Congress also vested jurisdiction in state courts to [*306] hear at least some criminal prosecutions. Under the Post Office Act of 1799, Congress provided that:

All causes of action arising under this act may be sued, and all offenders against this act may be prosecuted, before the justices of the peace, magistrates, and other judicial courts of the several states . . . and such justices, magistrates, or judiciary shall take cognizance thereof, and proceed to judgment and execution as in other cases. n149

Far from fearing loss of control, the Postmaster General welcomed the measure, explaining that vesting jurisdiction in state courts was necessary "to prosecute at as little expense to the public and individuals as can be conveniently done." n150 Indeed, the provision in the postal laws for concurrent jurisdiction over some crimes remained in force until 1960. n151

Although Congress was silent as to whether the criminal cases were to be tried by a federal or state prosecutor, at least some prosecutions were initiated and carried out by state officials. For instance, in State v. Wells, n152 the defendant challenged an indictment in state court based upon his violation of the postal laws. He contended in part that Congress could not constitutionally assign jurisdiction over criminal matters to the state courts. Although the trial court was sympathetic to the defendant's claims, the appellate court reversed, holding that "[a]n offense against the laws of the United States is an offense against the laws of South Carolina; and she has the right to punish it." n153 Enforcement of the federal laws was thus made dependent upon individuals who in no way were under the control of the President.

To be sure, as the federal government continued to grow, many [*307] who had first championed concurrent jurisdiction as a means of checking the power of the federal judiciary began to fear federal encroachment upon the independence of the states. n154 State courts increasingly refused to exercise jurisdiction over federal crimes as well as over federal penal statutes. n155 Such refusals to accept jurisdiction, however, stemmed not from any concern for diluting the executive branch's control over criminal prosecution, but rather from the perceived intrusion into state sovereignty. In general, state judges, as well as some federal judges, n156 believed that no juristic entity could punish for criminal acts threatening another entity's sovereignty. Some state courts in the first half of the nineteenth century acted on this belief not only by declining jurisdiction over penal actions brought under federal laws, but also by refusing to undertake some ancillary law enforcement duties prescribed by Congress. n157

A series of Supreme Court decisions starting at the turn of the century rejected the notion of inviolable sovereignties. The Court upheld the right of Congress to provide for federal bankruptcy proceedings in state courts (and the concomitant authority of state courts to entertain such jurisdiction), n158 to direct that federal officials be tried for state crimes in federal courts, n159 to punish state officials for their failure to discharge duties prescribed by Congress, n160 and to authorize federal causes of action to be heard in state court, n161 even if they were penal in [*308] nature. n162 In light of these decisions, the jurisprudential obstacle blocking Congress from authorizing state officials to prosecute their citizens for violation of federal laws was removed.

Although Congress has not recently provided for concurrent jurisdiction over criminal offenses, n163 it achieved substantially the same objective under the Volstead Act n164 by authorizing state officials to sue in equity on behalf of the United States in order to restrain conduct made criminal by that Act. Thus, state officials exercised the discretion to determine what conduct fell under the federal criminal laws and when to sue for violations of those criminal laws. Moreover, state officials at times brought state criminal charges against defendants who continued a course of unlawful conduct. n165 State officials acted as proxies for executive branch officials in enforcing the prohibition laws. n166 Congress presumably could [*309] vest state officials with more direct criminal responsibilities. n167

Once again, the historical examples do not illustrate who within the federal government can be charged with the responsibility to enforce the criminal laws. These examples do show, however, that significant law enforcement responsibilities have at times been discharged by state officials immune from close executive branch supervision. State officials have wielded influence in determining when to arrest individuals suspected of violating federal laws, when to recommend mitigation of a punishment otherwise due under federal law, and even when to prosecute. The historical examples suggest that some responsibility to enforce the Ethics in Government Act, whether through direct criminal actions or suits in equity, could be vested in the state judicial system, outside the direct control of the Executive.

Examining prior congressional enactments concerning criminal law enforcement demonstrates that Congress has long influenced and conditioned the Executive's constitutional responsibility to enforce the criminal laws. Congressional dispersal of supervisory authority over criminal laws, and congressional authorization for private individuals and state officials to play a prominent role in criminal law enforcement are ample testament to Congress' power to help shape criminal law enforcement. Historical support for the view that criminal law enforcement constitutes a "core" or exclusive executive power is thus scant.

Viewed through a historical lens, criminal law enforcement does not lie at the end of the continuum marking the Executive's greatest power in relation to the coordinate branches of government. Rather, Congress possesses considerable discretion in shaping and guiding the Executive's enforcement of the criminal laws. The Ethics in Government Act, to the extent of assigning discrete prosecutorial responsibility to an officer somewhat independent of the President, appears consistent with historical precedent.

Moreover, the balance of power between Congress and the Executive has unquestionably shifted in the two hundred years since the 1789 Judiciary Act. If Congress could, consistent with the separation of powers doctrine, exercise such significant authority in criminal law enforcement in the early years of the republic when the Executive was comparatively weak, n168 then its recent exercise of discretion [*310] in granting the independent counsel a measure of statutory tenure seems unobjectionable, at least from a historical perspective. Although granting all prosecutorial authority to officers independent of the President's control might disrupt the balance among the branches, n169 the limited measure adopted by Congress in the Ethics Act comports with the place historically occupied by criminal law enforcement on the continuum marking the Executive's powers.


As a practical matter, the Executive today enjoys near total control over federal criminal law enforcement, with the exception perhaps of the investigations and prosecutions covered in the Ethics in Government Act. n170 The increase in executive control over criminal law enforcement probably stems from the dramatic expansion of both federal crime and the sophistication of criminals engaged in such conduct. n171 Congress has therefore legislated an administrative structure and provided the resources to enable the Executive to develop a strong, centralized arm for enforcing the criminal laws. Unlike its counterparts in the first years of the republic, therefore, recent Congresses willingly have granted increased powers to the Executive over federal criminal law enforcement.

With the perceived need to increase centralization of criminal law enforcement, Congress has drastically reduced the role of private citizens in enforcing the criminal laws. Non-governmental personnel can no longer present evidence directly to the grand jury and are unlikely to do so indirectly by filing a complaint with a magistrate. Moreover, Congress has cut back on the availability of qui tam actions and those that exist do not preclude future criminal actions brought by the federal government. Even then, some civil qui tam actions are subject to executive branch control. n172

[*311] To augment the centralization, Congress has also reduced the role assigned to state courts and state officials. Congress has withdrawn the jurisdiction previously vested in state courts over federal crimes, and it has also greatly restricted the auxiliary law enforcement tasks assigned to state officials. Congress has concurred with the Executive that, in many contexts, state officials only inefficiently aid in enforcing federal criminal statutes. Thus, Congress' present agreement with the Executive on effective criminal law enforcement strategy masks the historical conflicts that have taken place.

In turn, the enactment of broader criminal provisions has fostered increased sensitivity to notions of individual justice. The expanded breadth of federal criminal legislation today subjects more individuals to potential federal prosecution and thereby calls for greater exercise of prosecutorial discretion. n173 Reinstitution of a broad scheme of privately-initiated prosecutions (or quasi-criminal qui tam actions) would therefore cast a wide net and could well result in less even-handed enforcement of the law, permitting private motives to dominate instead of what one hopes is dispassionate professional judgment. n174 Furthermore, allowing prosecution by government officials who are not subject to close supervision gives rise to similar concern over arbitrary and uneven enforcement of the law. n175 Unified executive control over lawmaking may promote fairness for the individual defendant.

[*312] The increased executive control over criminal law enforcement may therefore have stemmed from the tacit concurrence of all three branches of government. Congress, for its part, has strengthened the Executive's hand in its efforts to combat crime and to ensure uniform law enforcement. And, in some contexts, courts have augmented the Executive's authority in criminal law enforcement to promote unified enforcement efforts at the expense of individual involvement in criminal prosecutions. n176

Such enhanced executive control may represent sound policy grounded in concern for both effective and fair criminal law enforcement. But sage policy should not be confused with constitutional mandate. Congress, at least historically, has possessed the authority to shape executive discretion in criminal law enforcement matters in various ways, including designation of the personnel who are to exercise federal law enforcement responsibility. While criminal law enforcement should perhaps remain under the President's direct control, there is little historical support for the effort to transform that policy into a constitutional norm.

Thus, a look to history sheds new light on the Supreme Court's recent decision in Morrison v. Olson, providing support for the Court's unstated premise that criminal law enforcement is not an exclusive function of the executive branch. That conclusion, oddly enough, suggests that the independent counsel decision may have a more limited impact than might otherwise be imagined. Although the Supreme Court has decisively and, in my view, correctly decided where criminal law enforcement falls on the continuum marking the Executive's powers, it has yet to decide whether Congress can similarly circumscribe the Executive's authority over functions such as the conduct of foreign relations that rest more fully in the Executive's control.

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