United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed August 18, 1999
Division No. 94-1
In re: Madison Guaranty Savings
& Loan Association
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
---------
Before: Sentelle, Presiding Judge, Fay and Cudahy*,
Senior Circuit Judges.
O R D E R
Pursuant to the Independent Counsel Reauthorization Act
of 1994, 28 U.S.C. ss 591-599 (1994), the court, on its own
motion, concludes that termination of the office of Indepen-
__________
* Senior Judge Cudahy dissents from the ORDER.
dent Counsel in the above-captioned matter is not currently
appropriate under the standard set forth in 28 U.S.C.
s 596(b)(2).
Per Curiam
For the Court:
Mark J. Langer, Clerk
by
Marilyn R. Sargent
Chief Deputy Clerk
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed August 18, 1999
Division No. 94-1
In re: Madison Guaranty Savings & Loan Association
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, as Amended
---------
Before: Sentelle, Presiding Judge, and Fay and Cudahy,
Senior Circuit Judges.
ON TERMINATION OF INDEPENDENT
COUNSEL QUESTION
Opinion of the Special Division filed Per Curiam.
Dissenting Opinion filed by Senior Judge Cudahy.
Per curiam: 28 U.S.C. s 596(b)(2) empowers the Division
of the Court "on its own motion or upon the request of the
Attorney General [to] terminate an office of independent
counsel ... on the ground that the investigation of all matters
within the prosecutorial jurisdiction of such independent
counsel ... have been completed or so substantially complet-
ed that it would be appropriate for the Department of Justice
to complete such investigations and prosecutions." The stat-
ute further provides that the Division should enter an appro-
priate order on its own motion at the end of the first two-year
period of the independent counsel investigation, the second
two-year period and thereafter at the end of each succeeding
year. We have never interpreted this section to empower the
Division to supervise independent counsel. Indeed, it could
not constitutionally do so. In Morrison v. Olson, 487 U.S.
654 (1988), the Supreme Court upheld the constitutionality of
the Ethics in Government Act against a challenge that it
violated the separation of powers doctrine precisely because
the Division created under the Act "has no power to supervise
or control the activities of the counsel." Id. at 695. We have
consistently followed the Supreme Court's teaching on this
doctrine. See, e.g., In re North (Walsh Show Cause Order),
10 F.3d 831, 837 (D.C. Cir., Spec. Div., 1993). Therefore, in
the absence of a motion from the Attorney General, or a
party having standing to raise an actual case or controversy
cognizable by the court under Article III, as in Walsh Show
Cause Order, supra, we have limited our termination inquiry
to request of the independent counsel as to whether the
investigation was completed. Where, as in Walsh Show
Cause Order, there has been a dispute concerning the comple-
tion, or even a potential dispute, we have called upon the
independent counsel for further filing. Otherwise, we have
not engaged in conduct that might have crossed the constitu-
tional barrier into supervision. Nor do we intend to do so
today.
In the current case, as in prior instances under the statute,
the Division has inquired of the independent counsel and
received his assurance that his work is ongoing. Having
neither the constitutional authority to supervise nor a motion
from the Attorney General, nor any Application by any other
party having standing to bring before the court an Article III
controversy, we have not looked beyond the public record to
seek support for this proposition. In this case, the public
record offers ample support.
As our dissenting colleague recognizes, this investigation
has reached the fifth anniversary of the appointment, a good
deal less time than that occupied by the investigation in In re
North or In re Pierce, and has been unusually productive,
having resulted, as our colleague recognizes, in the impeach-
ment of a President, as well as twenty-four (24) indictments
and sixteen (16) convictions not alluded to by our dissenting
colleague. While we cannot, without challenging the border
of unconstitutional supervision, inquire as to the precise day-
to-day nature of the remaining work, it is quite evident that it
involves at least the production of a final report, along with
such "residual noninvestigative and nonprosecutorial authori-
ty duties relating to the filing of the Final Report," as would
normally accompany the winding-down of an investigation of
the present scope. See In re North, 10 F.3d at 834.
For reasons that are not clear to us, our dissenting col-
league would depart from our usual custom and commence
supervision in the case of Independent Counsel Starr as has
never been done with any other independent counsel. Noth-
ing known to us explains why we should visit upon this
particular independent counsel a level of supervision different
than that ever before afforded in the absence of some motion
by the Attorney General or some other party having the
standing to bring a case or controversy within the cognizance
of the court rather than an exercise in unconstitutional super-
vision.
For those reasons, we have today issued an order declining
to terminate the Office of Independent Counsel in this matter.
Cudahy, Senior Circuit Judge, dissenting:
Terminating the office of an independent counsel when his
work is completed is one of the most important obligations
with which this court is charged. An endless investigation,
which the passivity of the majority invites, can serve no
possible goal of justice and imposes needless burdens on the
taxpayers. The approach advocated by the majority renders
the termination provisions of the Independent Counsel Act,
28 U.S.C. s 596(b)(2), a dead letter. The language in Morri-
son v. Olson, 487 U.S. 654, 695 (1988), on which the majority
relies may preclude this Division from attempting to "super-
vise or control" the manner in which an independent counsel
carries out his duties. There is certainly no indication,
however, that the Supreme Court intended to nullify the
termination provisions of the statute.
I do seem to agree with the majority on certain preliminary
questions. First, this Division must make a termination
decision. Second, this decision must be based on some infor-
mation. Third, the Division can request this information
from an independent counsel. On the questions of how much
information, what kind of information and what sort of deci-
sion the available information dictates, I emphatically dis-
agree. The approach advocated by the majority here is in
stark contrast to the aggressive performance of this Division
in In re North (Walsh Show Cause Order), 10 F.3d 831 (D.C.
Cir. 1993).
The Independent Counsel statute provides that the Division
"shall" make a determination, even if on its "own motion." 28
U.S.C. s 596(b)(2). We need not wait for some other party to
suggest that the Division exercise its powers of termination
(as ex-President Reagan did in In re North). The statute
also directs that our termination decision be based on specific
information: whether an independent counsel's investigations
are "completed or so substantially completed that it would be
appropriate for the Department of Justice to complete such
investigations...." We further know that the Division can,
without breaching any constitutional walls that separate pow-
ers, request that an independent counsel provide information
regarding the status of his investigations so that the Division
may determine whether the statutory "conditions for termi-
nation [have] been met." In re North, 10 F.3d at 832. In
fact, in the North case, the Division's informational requests
of Independent Counsel Lawrence Walsh took the emphatic
form of an Order to Show Cause why his investigation should
not be terminated. See id.
I have sought to have this Division request specific infor-
mation from the Independent Counsel about further investi-
gative activity that he could usefully undertake and which
could not now properly be turned over to the Department of
Justice. My efforts along these lines have been rebuffed.
The only word which is available to me of the Independent
Counsel's possible investigative prospects are very general
representations that such prospects may exist, conveyed in an
informal "contact" between the Independent Counsel and the
Presiding Judge of this Division. Despite the very high
esteem in which I hold the Presiding Judge, I do not believe
that vague intimations informally conveyed are an adequate
basis for our official action. I strongly believe that the
Division needs more information--of the specific kind identi-
fied in the statute--in order to make its decision. In any
event, based on what I know (or do not know) now, there is a
strong case for termination, and it would be very difficult to
persuade me otherwise.
This investigation is celebrating its fifth birthday, and it
has led to the impeachment of the President of the United
States followed by his acquittal by the Senate. This is a
natural and logical point for termination, since it is not clear
how additional measures against the principal subject of the
investigation could be pursued. Nor is there any indication
that the Independent Counsel would pursue them--whatever
they might be. In addition, there apparently are no pending
prosecutions against lesser figures. The past record of the
Independent Counsel in procuring indictments and convic-
tions of others implicated in the investigation is certainly of
interest but is quite irrelevant to future prospects or legiti-
mate needs at this stage of the process.
From the information at my disposal, I must conclude that
there is nothing further to be done, beyond a Final Report,
and certainly nothing that cannot properly be turned over to
the Department of Justice, as the statute provides. Termi-
nation, of course, may be conditional on completion and
submission of a Final Report. See In re North, supra. I
would therefore terminate the office of this Independent
Counsel subject to completion and submission of a Final
Report.
For these reasons, I respectfully dissent.