Olson brought suit against Morrison, who was appointed “independent counsel” by the Attorney General to investigate Olson for potential violations of federal
A court may appoint a prosecutorial officer without violating the President’s constitutional power under the Appointments Clause.
Olson was a government official who allegedly gave false and misleading testimony before a House subcommittee. The Attorney General named Morrison independent counsel to investigate whether Olson violated federal law. Olson brought suit against Morrison in her official capacity, arguing that the appointment of an independent counsel unconstitutionally took executive powers away from the President.
Does the independent counsel provision of the Act violate the constitutional principle of separation of powers?
No, the independent counsel provision of the Act does not violate the principle of separation of powers and is constitutional.
The Act should be struck down because criminal prosecution is an exercise of purely executive power and the Act deprived the President of exclusive control of that power.
The independent counsel provision of the Act did not violate the principle of separation of powers. Independent counsel is not under the control of Congress because although members of Congress can request the Attorney General to apply for the appointment of an independent counsel, the Attorney General has no duty to comply with the request. Similarly, independent counsel is not under the control of the judiciary, given that it has no power to appoint an independent counsel except at the specific request of the Attorney General. Finally, the Act does not undermine the powers of the executive branch because the Attorney General retains the power to remove the independent counsel and the power to not request appointment if he/she finds no reasonable grounds to believe that further investigation is warranted.