Olson, the Solicitor General, moved to quash the investigation of the independent counsel on the ground that the Act was unconstitutional. Olson argues that even if the independent counsel was an inferior officer, the Constitution does not permit Congress to place the power to appoint outside the Executive Branch.
Vesting of an appointment power in the courts would be improper if there was some incongruity between the functions normally performed by the courts and the performance of their duty to appoint.
The Ethics in Government Act of 1978 required the Attorney General, upon “sufficient grounds” to investigate, to conduct a preliminary investigation of possible official violations of federal criminal law. The Attorney General would then report to the U.S Court of Appeals as to whether there were reasonable grounds to believe that further investigation is warranted. If the Attorney General found such reasonable grounds, she must apply for the appointment of an independent counsel and the Court of Appeals appointed such counsel and defined her jurisdiction.
The purpose of the separation of powers and of the unitary Executive was not merely to assure effective government but to preserve individual freedom. The primary check against prosecutorial abuse is a political one and the prosecutors who exercise this discretion are selected and can be removed by a President. Like it or not, the executive power shall be vested in a President not in Congress.
The Act does not impermissbly undermine the powers of the Executive Branch or disrupts the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions. It is true that the Act reduces the amount of control that the Attorney General and the President exercise over the investigation. However, the Act does give the Attorney General several means of supervising or controlling the prosecutorial powers. Moreover, the Attorney General retains the power to remove the counsel for good cause and this sufficiently gives the Executive Branch control over the independent counsel.