Morrison v. Olson

The Watergate scandal began with a break-in at offices belonging to the Democratic party in Washington's Watergate Hotel during the summer of 1972. By the time it ended with the resignation of President Richard M. Nixon in August of 1974, the foundations of the federal government had been shaken by a series of cover-ups, investigations, and controversies that pitted the executive, legislative, and judicial branches against one another. One particularly thorny conflict had been the antagonistic relationship between the executive branch and the special counsel appointed to investigate the president and others. In 1978, Congress passed the Ethics in Government Act, Title VI of which provided for the appointment of an "independent counsel" whose job it would be to prosecute high-level officials for violation of federal criminal laws. Legislators hoped that the creation of the independent counsel would remedy the problems experienced by the special prosecutor, because the new office would have greater powers and independence.

Under Title VI, if the attorney general received information he considered "sufficient to constitute grounds to investigate whether any person [covered by the Act] may have violated any Federal criminal law," he was authorized to conduct a preliminary investigation. Upon completion of this investigation, or at the end of 90 days, the attorney general would then report to a court called the Special Division, which had also been created by the act. If the attorney general had determined that there were "reasonable grounds to believe the further investigation or prosecution [was] warranted," he would ask the Special Division to appoint an independent counsel.

Under the act, the counsel had "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice." The counsel's duties would include conducting investigations and grand jury proceedings, participating in the proceedings and litigation of civil and criminal courts, and appealing decisions by those courts. His or her powers would include "initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing information, and handling all aspects of any case, in the name of the United States." In addition, the counsel could appoint employees, request and receive assistance from the Department of Justice, accept referrals from the attorney general, and dismiss matters if he or she deemed them unworthy of investigation.

These were broad powers, resulting in an office which combined functions of an investigator with that of a prosecutor, and the term "independent" in the title seemed to suggest an even wider range of authority. The counsel could only be removed under two situations: if the attorney general requested such removal, and then "only for good cause"; or if the office itself was terminated, either because the counsel said his or her work was finished, or because the Special Division deemed the investigation concluded. Congress provided additional oversight, since the act required the counsel to report to it from time to time. Congress could also ask the attorney general to appoint an independent counsel to investigate a situation it considered worthy of attention, and though the attorney general was not compelled to do so, he or she was required to at least respond to the request.