concurring in part and dissenting in part:
I agree that the Independent Counsel should continue in office to fulfill his duties under the Ethics in Government Act * relating to his final report.
I dissent from the provisions of the court's order and opinion prohibiting the Independent Counsel from responding to comments filed by persons named in his report. We have no statutory authority to impose this prior restraint on the Independent Counsel. Construction of the statute to permit such restraint raises constitutional issues that we should avoid.
I
In accordance with 28 U.S.C. § 596(b)(1)(A) the Independent Counsel has notified the Attorney General that he has completed his investigations and prosecutions. This notice should allay concerns of persons named in the report that the Independent Counsel will launch an investigation or initiate a prosecution on the basis of information contained in their comments.
Notification to the Attorney General does not terminate the office of Independent Counsel. The Independent Counsel must file a final report before his office is terminated. See § 596(b)(1)(B).
Section 594(h)(1)(B) prescribes the content of the report. This section, when read with § 594(h)(2) regarding the court's authority to disclose the report to Congress and the public, evidences congressional intent to make the report a public record except in unusual circumstances. The report must set forth "fully and completely a description of the work of the independent counsel, including the disposition of all cases brought, and the reasons for not prosecuting any matter within the prosecutorial jurisdiction of such independent counsel." § 594(h)(1)(B). To assure that the report is full and complete and to afford a measure of fairness to persons mentioned in the report, Congress authorized the court to furnish relevant portions of the report to such persons. Within a time limit set by the court, these persons may submit "comments and factual information" that the court may include as an appendix to the report. 28 U.S.C. § 594(h)(2). The court has authorized comments, and they will be published in an appendix prepared by the Independent Counsel.
The Independent Counsel's authority to respond to comments is part and parcel of his report. Some of the comments are ad*836dressed to the Independent Counsel requesting him to correct either factual information contained in his report or the inferences that he has drawn from the facts. To deny the Independent Counsel an opportunity to respond to these requests either by correcting the report or explaining why he has not done so denies both Congress and the public insight into those portions of the report in question. Some of the comments may raise new matters apparently pertinent to the Independent Counsel’s actions. The Independent Counsel should be able to respond, explaining that the omission of these matters was inadvertent or that their inclusion was unnecessary.
I do not share the notion that the public interest is served by denying the Independent Counsel the opportunity to respond because persons mentioned in the report may wish, in turn, to file additional comments. In both civil and criminal proceedings, courts permit response. A proponent speaks first; the opponent then speaks, and the proponent responds. This practice has been codified by the Rules. See, e.g., Fed.R.Crim.P. 29.1; Fed.R.App.P. 34(c); Sup.Ct.R. 28.2. It is the orderly way to conduct a discussion, a debate, or a trial. I see no reason why we should depai't from it. We have already given the persons named in the report time to comment. I deem it highly unlikely that the Independent Counsel will unduly delay release of the report should he decide to respond. The court in its discretion may permit further comment if it deems fairness to the commentator or the public interest will be served. In any event, persons who wish to make further comments will be free to do so after the report and the appendix have been released.
Prohibiting the Independent Counsel from responding to comments that warrant response will defeat the congressional directive that the Independent Counsel report his actions “fully and completely.” Congress and the public will be the losers. So much for the practical reasons why responding enables the Independent Counsel to complete his report — I turn now to the issue whether prohibiting the Independent Counsel from responding complies with the Act.
II
The Department of Justice has set forth its views about the construction of the Act with reference to the Independent Counsel’s authority and responsibility relating to his final report. In a letter to the Independent Counsel from Philip B. Heymann, Deputy Attorney General, dated November 9, 1993, the Department recognized the Independent Counsel’s authority to respond to comments. The text of the letter follows:
Thank you for giving the Department of Justice an opportunity to comment on the Order to Show Cause and accompanying Memorandum issued by the Special Division of the District of Columbia Circuit on November 2, 1993.
The Department of Justice believes that the Independent Counsel must continue to represent the United States in any proceedings before the Special Division concerning the Final Report. Only a construction of the statute which recognizes that the Independent Counsel has both the authority and the responsibility to handle all proceedings relating to the Final Report after formally notifying the Attorney General that its investigation is concluded allows a rational and orderly termination of the Office of Independent Counsel. Moreover, the statute establishing the Independent Counsel contemplates that the Department of Justice will play no role in the Final Report. Therefore, the Independent Counsel is the appropriate party to respond to comments submitted pursuant to section 591(h) and perform any other functions related to the Final Report.
I would appreciate it if you would make the views of the Department of Justice known to the Special Division of the Court by filing this letter with the Court, (emphasis added).
The Act confers very limited powers on the court with respect to the Independent Counsel. Adherence to these limitations is essential to preserve the constitutionality of the Act. In Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988), the Supreme Court upheld the constitutionality of the Act. Addressing the argument that the *837Act violated the separation of powers doctrine, the Supreme Court pointed out that the Act conferred on this court only limited power. Pertinent to the issue now before us, the Supreme Court said that this court “has no power to supervise or control the activities of the counsel.” 487 U.S. at 695, 108 S.Ct. at 2621. Referring to this court as the Division, the Supreme Court reiterated that the “powers delegated by the statute to the Division are not supervisory....” 487 U.S. at 695, 108 S.Ct. at 2621.
Yet, by denying the Independent Counsel authority to respond to comments, this court is construing the statute as permitting it to exercise supervision and control over the Independent Counsel in performance of his duty to report “fully and completely” his activities pursuant to § 594(h)(1)(B). This court’s assumption of power is contrary to the Supreme Court’s construction of the statute in Monison. Prohibiting the Independent Counsel from responding raises a serious constitutional issue under the separation of powers doctrine.
To be sure, § 596(b)(2) authorizes this court to terminate an office of Independent Counsel when all matters within its prosecu-torial jurisdiction have been completed. The statute then provides: “At the time of such termination the independent counsel shall file the final report required by 594(h)(1)(B).” Several observations are pertinent to this grant of power to this court. Section 594(h)(1)(B) contemplates that the office will not terminate until the report is filed. The statute does not give this court authority to terminate the Independent Counsel’s office piecemeal by picking and choosing what duties regarding his report the Independent Counsel shall perform or by ordering how he shall perform them. This court does not have statutory authority to terminate or accelerate termination by exercising supervision or control over the Independent Counsel with respect to the contents of his report. This proposition is so obvious and fundamental that it has found its way into Hornbook law. “The Special Division, in short, should not use the power of termination as a method of supervising the Independent Counsel.” John E. Novak & Ronald D. Rotunda, Constitutional Laiv 261 (4th ed. 1991) (Hornbook Series). In sum, this court is not empowered under the guise of its termination power to prohibit the Independent Counsel from responding to comments.
Concern about the termination provision prompted the Supreme Court to admonish this court against its casual use. After explaining how the miscellaneous powers of the Division did not conflict with Article III of the Constitution, the Court sounded a note of caution: “We are more doubtful about the Special Division’s power to terminate the office of the Independent Counsel pursuant to § 596(b)(2).” Morrison, 487 U.S. at 682, 108 S.Ct. at 2614. Pointing out that it is the duty of courts “to construe a statute in order to save it from constitutional infirmities,” 487 U.S. at 682, 108 S.Ct. at 2614, the Court construed the Act to place severe limitations on this court: “As we see it, ‘termination’ may occur only when the duties of the counsel are truly ‘completed’ or ‘so substantially completed’ that there remains no need for any continuing action by the independent counsel.” 487 U.S. at 682-83, 108 S.Ct. at 2614-15.
Denying the Independent Counsel the option to address the comments to his report is tantamount to terminating a central function of the Independent Counsel’s office. As the Court noted in Monison, “the termination provision [of the Ethics in Government Act] was ‘intended to serve only as a measure of last resort.’ ” 487 U.S. at 683 n. 21, 108 S.Ct. at 2615 (quoting In re Sealed Case, 838 F.2d 476, 522 n. 13 (D.C.Cir.1988) (Ruth Bader Ginsburg, J., dissenting)). The Supreme Court also noted that the legislative history of the Act counseled caution in that exercise of the power to terminate:
This paragraph provides for the unlikely situation where a special prosecutor may try to remain as special prosecutor after his responsibilities under this chapter are completed_ The drastic remedy of terminating the office of special prosecutor without the consent of the special prosecutor should obviously be executed with caution.
487 U.S. at 683 & n. 21, 108 S.Ct. at 2615 & n. 21 (quoting S.Rep. No. 95-170, p. 75 *838(1977)). No extraordinary circumstances justify this court’s termination of an important function of the Independent Counsel.
When all is said and done, the Independent Counsel may decline to respond to the comments. But whether he responds or not should be his decision and not this court’s. To construe the Act otherwise, to assume control and supervision over the Independent Counsel in the discharge of his duties to report, and to terminate his office before he has completed his report raise constitutional issues in the application of the Act that should be avoided. For these reasons, I dissent from the order prohibiting the Independent Counsel from responding to comments.
The Ethics in Government Act of 1978, Pub.L. No. 95-521, tit. VI, § 601(a), 92 Stat. 1867, provided the original authority for the appointment of a `special prosecutor"-now renamed the Independent Counsel. The Independent Counsel Reauthorization Act of 1987, Pub.L. No. 100-191, 101 Stat. 1293, amended the statute, see 28 U.S.C.A. § 591 note (1993). There is, in this instance, no conflict between the old Statute and the 1987 amendments with respect to the Independent Counsel's activities at issue. For this reason, I refer to the current codification of the Act, Independent Counsel Walsh holds both an appointment by the Special Division pursuant to the 1978 Act and a parallel appointment by the Attorney General.