NCJ Number
56034
Journal
Yale Law Journal Volume: 87 Issue: 8 Dated: (JULY 1978) Pages: 1692-1722
Date Published
1978
Length
31 pages
Annotation
THE CONSTITUTIONALITY OF FEDERAL LEGISLATION PROPOSING COURT APPOINTMENT OF SPECIAL PROSECUTORS IN CASES INVOLVING ALLEGED WRONGDOING BY FEDERAL EXECUTIVES (E.G., THE WATERGATE EPISODE) IS EXAMINED.
Abstract
THE BILL IN QUESTION, THE PUBLIC OFFICIALS INTEGRITY ACT OF 1977, IS AN ATTEMPT TO DEAL WITH THE PROBLEM OF HOW TO LIMIT EXECUTIVE CONTROL OVER PROSECUTIONS OF EXECUTIVES WITHOUT TRANSGRESSING CONSTITUTIONAL LIMITS REGARDING THE SEPARATON OF POWERS. JUSTIFICATION FOR THE COURT APPOINTMENT OF INDEPENDENT PROSECUTORS EMPOWERED TO INVESTIGATE AND BRING INDICTMENTS WHILE FUNCTIONING SEPARATELY FROM THE EXECUTIVE IS FOUND IN THE GRAND JURY'S FUNCTION AS AN INDEPENDENT BODY THAT CAN RESPOND TO EXECUTIVE WRONGDOING AND IN THE PROSECUTOR'S RELATIONSHIP TO THE GRAND JURY IN ITS INVESTIGATIVE CAPACITY. ARGUMENTS IN FAVOR OF INDEPENDENT SPECIAL PROSECUTORS ARE SEVERAL: (1) THE CONSTITUTION SAYS THAT THE EXECUTIVE, NOT THE LEGISLATURE OR THE JUDICIARY, HAS THE POWER TO ENFORCE THE LAW, BUT IT DOES NOT DEMAND THAT THE EXECUTIVE BE FREE TO CONTROL THE INVESTIGATION OF EXECUTIVE WRONGDOING OR TO OBSTRUCT THE BRINGING OF A VALID INDICTMENT; (2) THE PRINCIPLE OF ACCOUNTABILITY, MADE CLEAR IN THE CONSTITUTIONAL PROVISION FOR IMPEACHMENT, CAN BE VIABLE ONLY WHEN INVESTIGATIONS ARE MADE AND INFORMATION REACHES THE PUBLIC; AND (3) IF THE EXECUTIVE BRANCH IS NOT TO BE INSULATED FROM THE PRESSURES OF THE POLITICAL SYSTEM, THE PROSECUTOR MUST BE FREE OF EXECUTIVE CONTROL DURING INVESTIGATION OF ALLEGED CORRUPTION. IT IS FURTHER CONTENDED THAT THE BILL'S PROVISION IN EFFECT EMPOWERING GRAND JURIES TO RETURN INDICTMENTS WITHOUT EXECUTIVE CONCURRENCE IS NECESSARY TO ASSURE ACCOUNTABILITY. HOWEVER, THE BILL'S PROVISION FOR COURT APPOINTMENT OF SPECIAL PROSECUTORS TO SERVE IN A POSTINDICTMENT CAPACITY IS FOUND NOT TO BE CONSTITUTIONAL. (LKM)