Further Proof of the Unconstitutionality
of the Office of Independent Counsel

The Supreme Court Opinion in Morrison v. Olson,
examined more closely

The proof of Supreme Court's misrepresentation
of the Federal Constitutional Convention

Extract of the Supreme Court's Opinion
in Morrison v. Olson, et al. 487 U.S. 654,674-675.
The Court's Survey of the Federal Convention
pertaining to the inferior Officers Clause

The Meaning of inferior Officers

Section 27 of Act to establish the Judicial Courts
of the United States, September 24, 1989

The True Meaning of the Constitution
can only be determined honestly

A closer Analysis of the Constitution,
further proving that the Independent Counsel Statute
is unconstitutional

Further Proof of the Unconstitutionality
of the Independent Counsel Statute,
from The Federalist

The federal Office of "Independent Counsel,"
created by the Ethics in Government Act,
U.S. Congress, 1978, for investigating
possible Violations of federal criminal Laws,
and particularly for the criminal Prosecution
of such Persons as the President of the United States,
and other high Officers of the United States,
is unconstitutional.

- An Analysis of the Constitution of the United States
with respect to the Question of the proper Mode
of Inquisition into the alleged criminal Behavior
of federal Officers, including the President
of the United States.

The Supreme Court Opinion in Morrison v. Olson,
examined more closely

Recall that the Supreme Court opinion in Morrison v. Olson, delivered by the Chief Justice, William Rehnquist, held that the Constitution does not preclude "interbranch" appointments, like that provided for by the Ethics in Government Act (independent counsel): That the inferior officers clause of Article II, Section 2 of the Constitution gives Congress the discretionary power to authorize a "Court of Law" to appoint executive department officers, provided that they be subordinate "in some degree" to some higher officer, and that as an incident to such power, such a court may instruct the officer of the articles of his office, as to define the independent counsel's "prosecutorial jurisdiction." This Part II presents more substantial proof to refute the Supreme Court opinion. Among other things, it is shown below that the Supreme Court in its Morrison opinion misrepresented the federal constitutional convention of 1787, specifically, the authoritative volumes, The Records of the Federal Convention of 1787, compiled by M. Farrand.

Specifically, the Court opinion omits the parts of the Records which explicitly clarify that an "inferior officer" belongs to the office of the superior officers above him, which parts contradict and disprove the Court's statement that "there is nothing" in the records of the proceedings of the Federal Convention to suggest that "interbranch" appointments are not authorized by the inferior officers clause of the Constitution: "there is nothing" in the proceedings of the federal convention to suggest, asserted the Supreme Court (Chief Justice Rehnquist), that the "Framers" of the Constitution "intended to prevent Congress from having that power."

This Part II also consults Blackstone's Commentaries on the Laws of England, in order to learn the meaning of "inferior officers" that the makers of the Constitution most certainly understood and intended. The addendum will quote more at length from the chapter, where the only mention of "inferior officers," was by two examples: 1. The sheriff and his "inferior officers," the under sheriffs, bailiffs, and gaolers. The under-sheriff "usually performs all the duties of the office" of the sheriff. (Book I, Ch.9, page 333) 2. The high constable and petty constables, the latter being the "inferior officers" of the high constable. Thus, the people who ordained and established the Constitution certainly understood and intended that an "inferior officer" mentioned in Article II, Section 2 of the Constitution is to be an officer who is wholly subordinate to his respective superior officer above him, and therefore serving only the office of the superior officer, and not in another department of the Government. But first, the proof of the Supreme Court's misrepresentation is given as follows:

The proof of Supreme Court's misrepresentation
of the Federal Constitutional Convention

The case Morrison v. Olson, et al., arose out of the appointment of an "Independent Counsel" (appellant Morrison, et al.) to investigate allegations that the appellee Olson (assistant and deputy Attorney Generals) "had given false and misleading testimony" to a subcommittee of the Congress. The appellant sought to compel by subpoena the appellee's testimony before a grand jury. The appellees moved in the District Court of the District of Columbia to quash the subpoena, claiming that the Independent Counsel provisions of the Ethics in Government Act are unconstitutional. The District Court "upheld the constitutionality of the Act," but on appeal, the United States Court of Appeals for the District of Columbia reversed the District Court's decision, ruling that the Ethics in Government Act is not valid (that is, not constitutional). Whereupon, the Independent Counsel Morrison petitioned the Supreme Court (as appellant) for a "review;" and the Supreme Court then upon its deliberation "reversed" the Appeals Court ruling.

The Appellees in their arguments before the Supreme Court (Olson, and others) contended that the Independent Counsel provisions of the Ethics in Government Act are unconstitutional, and more specifically, they argued, in part, that the inferior officers clause of Article II, Section 2 did not allow a Court of Law to appoint officers in the executive department of the Government; that is, one branch of government appointing "inferior officers" of another branch: that such "interbranch" appointments are not authorized by the inferior officers clause of Article II, Section 2 of the Constitution.

On page 674-675 of the Supreme Court's opinion in Morrison v. Olson, the Court cited parts of the record of the Federal Constitution Convention of 1787 which pertain to the inferior officers clause of Article II, Section 2 of the Constitution, and asserted, as a ground for rejecting the appellees' contention, that "the history of the Clause [in the Convention's proceedings] provides no support for appellees' position." The Court's opinion, delivered by Chief Justice William Rehnquist, purports to survey the entire record of the proceedings of the federal Convention pertaining to the development of the Article II provisions in Constitution for the appointment of ambassadors, and other public ministers, judges of the Supreme Court, and all other officers of the United States, including inferior officers, to prove its statement. (See the insert below for the Court's entire survey of the "process of drafting of Constitution" in regards to the issue of the inferior officers clause.)
 

We also note that the history of the Clause provides no support for appellees' position. Throughout most of the process of drafting the Constitution, the Convention concentrated on the problem of who should have the authority to appoint judges. At the suggestion of James Madison, the Convention adopted a proposal that the Senate should have this authority, 1 Records of the Federal Convention of 1787, pp. 232-233 (M. Farrand ed. 1966), and several attempts to transfer the appointment power to the President were rejected. (See 2 id., at 42-44, 80-83.)

The August 6, 1787, draft of the Constitution reported by the Committee of Detail retained Senate appointment of Supreme Court Judges, provided also for Senate appointment of ambassadors, and vested in the President the authority to "appoint officers in all cases not otherwise provided for by this Constitution." (Id., at 183, 185.) This scheme was maintained until September 4, when the Committee of Eleven reported its suggestions to the Convention. This Committee suggested that the Constitution be amended to state that the President "shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, and other public Ministers, Judges of the Supreme Court, and all other Officers of the [United States], whose appointments are not otherwise herein provided for." (Id., at 498-499.) After the addition of "Consuls" to the list, the Committee's proposal was adopted, id., at 539, and was subsequently reported to the Convention by the Committee of Style. (See id., at 599.)

It was at this point, on September 15, that Gouverneur Morris moved to add the Excepting Clause to Art. II, 2. (Id., at 627.) The one comment made on this motion was by Madison, who felt that the Clause did not go far enough in that it did not allow Congress to vest appointment powers in "Superior Officers below Heads of Departments." The first vote on Morris' motion ended in a tie. It was then put forward a second time, with the urging that "some such provision [was] too necessary, to be omitted." This time the proposal was adopted. (Id., at 627-628.) As this discussion shows, there was little or no debate on the question whether the Clause empowers Congress to provide for interbranch appointments, and there is nothing to suggest that the Framers intended to prevent Congress from having that power.

"... he [The President] ... shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public ministers and consuls, Judges of the supreme Court, and all other officers of the U.S. whose appointments are not otherwise herein provided for." (Records, Vol. 2, page 599)

As stated in the Court's opinion, on September 15 Gouverneur Morris moved in the Convention to add to this provision the clause,

"but the Congress may by law vest the appointment of such inferior Officers as they think proper, in the President alone, in the Courts of law, or in the heads of Departments." (Records, Vol. II, p. 627)

The Court in Morrison refers to this added-on clause as the "Excepting Clause." At the end of its survey, the Court's opinion concentrates on Morris' motion. The Court opinion, again delivered by Chief Justice Rehnquist, states:

"It was at this point, on September 15, that Gouverneur Morris moved to add the Excepting Clause to Art. II, 2. Id., at 627. The one comment made on this motion was by Madison, who felt that the Clause did not go far enough in that it did not allow Congress to vest appointment powers in "Superior Officers below Heads of Departments." The first vote on Morris' motion ended in a tie. It was then put forward a second time, with the urging that "some such provision [was] too necessary, to be omitted." This time the proposal was adopted. Id. , at 627-628. As this discussion shows, there was little or no debate on the question whether the Clause empowers Congress to provide for interbranch appointments, and there is nothing to suggest that the Framers intended to prevent Congress from having that power."

(The "Id., at 627" is the Court's citation of page 627 of Volume 2 of Farrand's The Records of the Federal Convention of 1787.)

This statement of the Supreme Court's opinion misrepresents the The Records of the federal Convention of 1787. For contrary to the Court's statement, these Records in fact supply two passages which together absolutely suggest that the Framers (meaning, the delegates of the federal Convention) intended that an "inferior officer" which the Congress may think proper to be appointed without the Senate's advice and consent, is to be appointed only by a superior officer above him in the same department the same branch of the Government.

Firstly, the Chief Justice Rehnquist for the Court has painted the impression, and erroneously so, that Madison merely said that Congress should be allowed to vest "appointment powers" in "Superior Officers below Heads of Departments," thus giving no indication that the context of the Madison quotation is that the head of a department, or a superior officer below the head, may not appoint inferior officers of another "branch" of the Government, like "judges" of a division of a court appointing an executive officer (a prosecutor), as is prescribed by the Ethics in Government Act in regards to the "independent counsel." Chief Justice Rehnquist failed to quote the whole statement by Madison. The whole statement is as follows:

"It [Morris' proposition] does not go far enough if it be necessary at all Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices." (Farrand, II, 627)

The part in bold is missing in Chief Justice Rehnquist's opinion. Plainly, "the lesser offices" (and the word is, "offices," not "officers"), are the inferior offices within a specific Department, and therefore, are under the head of that department.

Secondly, and more pointedly, some days earlier in the Convention, right before the Convention acted on the question whether the Senate should be given a concurring power over the appointments of the officers of the United States, with the President nominating the officers, there occurred a debate as to the wisdom or inconveniences of the Senate involved in the appointment of the officers of the government. Mr. King, a delegate from Massachusetts, is recorded in the same Records as having argued, on September 7:

"... He differed from those who thought the Senate would sit constantly. He did not suppose it was meant that all the minute officers were to be appointed by the Senate, or any other original source, but by the higher officers of the departments to which they belong." (Records, II, page 539)

The Supreme Court opinion delivered by the Chief Justice Rehnquist specifically cites page 539 of the Records in its survey, but mentioned only that "consuls" were added to the list of officers to be appointed, a fact which is merely noted on that page of the Records. Chief Justice Rehnquist for the Court failed to mention the King statement that is so perfectly relevant to the Court's holding in Morrison, a statement that wholly clarifies the meaning (and purpose) of the inferior officers clause that was eventually added some days later, on September 15, by Gouverneur Morris' motion, a statement which flatly contradicts the Court's holding in Morrison. In Mr. King's statement, "minute officers" are plainly inferior officers; and therefore, inferior officers are to be appointed by the higher officers of the department "to which they belong", and not by the head of some other department of government, hence, also, not by a Court of Law, if the inferior officers is under the executive department of the Government.

Plainly, therefore, the Supreme Court in its opinion in Morrison v. Olson, as delivered by the Chief Justice, Mr. William Rehnquist, misrepresented the records of the federal Convention that ordained the Constitution, and therefore, the evidence of the intentions of the makers of the Constitution as to the true meaning of the inferior officers clause, when the Court held in Morrison that there is nothing in the records of the federal Convention to suggest that the Framers intended that "interbranch" appointments are not permitted by Article II, Section 2 of the Constitution. Whoever wrote that Court opinion, and whoever verified it before the Chief Justice delivered it, presumably the Chief Justice himself and the other judges of the Court, must have had their eyes on page 539 of the Records, since the Court opinion cites that specific page number, among its page references to the Records, and could not have failed to notice Mr. King's statement. It appears, therefore, that the Court deliberately misrepresented the records of the making of the Constitution, by suppressing the King statement, and the rest of Madison's statement mentioned earlier, in order to consolidate the Supreme Court's usurpation of the executive power of the Government, by maintaining the Judiciary's appointment and supervision of an office of "independent counsel" for prosecuting the President of the United States, and also, as discussed below, by the Supreme Court's appointment of a marshal for serving the Supreme Court, as another supposedly "inferior officer" allowed to be appointed by a "Court of Law."

The Meaning of inferior Officers

In Part I of the present Treatise, Blackstone's Commentaries on the Laws of England is consulted, the chapter on "subordinate Magistrates" (Book I, Chapter 9), in order to learn the meaning of "inferior officers" that the makers of the Constitution most certainly understood and intended. The present addendum will quote more at length from that chapter from Blackstone, where the only mention of "inferior officers," was by two examples: 1. The sheriff and his "inferior officers," the under sheriffs, bailiffs, and gaolers. The under-sheriff, said Blackstone, "usually performs all the duties of the office" of the sheriff. (Book I, Ch.9, page 333) 2. The high constable and petty constables, the latter being the "inferior officers" of the high constable. Thus, the people who ordained and established the Constitution certainly understood and intended that an "inferior officer" mentioned in Article II, Section 2 of the Constitution is to be an officer who is wholly subordinate to his superior officer above him, and therefore serving only the office of the superior officer.

This chapter of Blackstone's Commentaries on "subordinate Magistrates" is critically important; for it proves beyond question what is the thing inferior officer that was established in the science of constitutional law at the time of the making of the United States Constitution. The original brief quotes the introductory paragraphs of this chapter. The following passages continue into the descriptions of the sheriff and the constable, the only officers treated by Blackstone that have associated with them "inferior officers."

I. The sheriff is an officer of very great antiquity in this kingdom, ... the sheriff does all the king's business in the county; ...

Sheriffs were formerly chosen by the inhabitants of the several counties. ... But the custom now is ... that all the judges, and certain other great officers, meet in the exchequer chamber on the morrow of All Souls yearly, ... and then there nominate three persons to the king, who afterwards appoints one of them to be sheriff.

Sheriffs, by virtue of several old statutes, are to continue in their office no longer than one year; and yet it hath been said that a sheriff may be appointed durante bene placits, or during the king's pleasure: and so is the form of the royal writ. Therefore, till a new sheriff be named, his office cannot be determined, unless by his own death, or the demise of the king; in which last case it was usual for the successor to send a new writ to the old sheriff: but now by statute 1 Ann. st. I.c.8. all officers appointed by the preceding king may hold their offices for six months after the king's demise, unless sooner displaced by the successor. ...

We shall find it is of the utmost importance to have the sheriff appointed according to law, when we consider his power and duty. These are either as a judge, as the keeper of the king's peace, as a ministerial officer of the superior courts of justice, or as the king's bailiff.

In his judicial capacity he is to hear and determine all causes of forty shillings value and under, in his county court, ... and he has also judicial power in divers other civil cases. ...

As the keeper of the king's peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office. He may apprehend, and commit to prison, all persons who break the peace, or attempt to break it: ... He may, and is bound ex officio to, pursue and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody. He is also to defend his county against any of the king's enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the posse comitatus, or power of the county: which summons every person above fifteen years old, and under the degree of a peer, [who] is bound to attend upon warning, under pain of fine and imprisonment.

But though the sheriff is thus the principal conservator of the peace in his county, yet, by the express directions of the great charter he, together with the constable, coroner, and certain other officers of the king, are forbidden to hold any pleas of the crown, or, in other words, to try any criminal offence. For it would be highly unbecoming, that the executioners of justice should be also the judges; should impose, as well as levy, fines and amercements, should one day condemn a man to death, and personally execute him the next. Neither may he act as an ordinary justice of the peace during the time of his office: for this would be equally inconsistent; he being in many respects the servant of the justices.

In his ministerial capacity the sheriff is bound to execute all process issuing from the king's courts of justice. In the commencement of civil causes, he is to serve the writ, to arrest, and to take bail; when the causes comes to trial,he must summon and return the jury; when it is determined, he must see the judgment of the court carried into execution. In criminal matters, he also arrests and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself. ...

To execute these various offices, the sheriff has under him many inferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of 500 l.

The under-sheriff usually performs all the duties of the office; a very few only excepted, where the personal presence of the high-sheriff is necessary. But no under-sheriff shall abide in his office above one year; and if he does, by statute 23 Hen.VI, c.8. he forfeits 200 l. a very large penalty in those early days. And no under-sheriff or sheriff's officer shall practice as an attorney, during the time he continues in such office: for this would be a great inlet to partiality and oppression. ...

Bailiffs, or sheriff's officers, are either bailiffs of hundreds [hundred is a district], or special bailiffs. Bailiffs of hundreds are officers appointed over those respective districts by the sheriffs, to collect fines, therein; to summon juries, to attend the judges and justices at the assises, and quarter sessions; and also to execute writs and process in the several hundred. ...

Gaolers are also the servants of the sheriff, and he must be responsible for their conduct. Their business is to keep safely all such persons as are committed to them by lawful warrant: ...

I shall next consider some officers of lower rank than those which have gone before, and of more confined jurisdiction; but still such as are universally in use through every part of the kingdom.

Fourthly, then, of the constable. ...

Constables are of two sorts, high constables, and petty constables. The former ... are appointed at the court leets of the franchise or hundred over which they preside, or, in default of that, by the justices [of the peace] at their quarter sessions; and are removable by the same authority that appoints them. The petty constables are inferior officers in every town and parish, subordinate to the high constable of the hundred, first instituted about the reign of Edward III.

Blackstone does not say who appoints the under-sheriff, but it is plainly implied that the sheriff appoints his under-sheriff. Blackstone does say that the bailiffs are appointed by the sheriff. Certainly, there is no statement that a court of justice, such as the king's bench, or the court of oyer and terminer, for example, leading courts of criminal jurisdiction, held the power to appoint the under-sheriffs. The high constables and the petty constables of their respective precincts were appointed "at the court of leets" of each precinct, or the justices of the peace. But this "court of leets" was vested with powers in addition to judicial powers, as their powers included "preserving the peace" (as also the justices of the peace); so it was natural that they should appoint the high constable and petty constables of their respective districts. In this case, the inferior officer is the petty constable, and the superior officer is the high constable. So, the same authority that appointed the superior officer, appointed the inferior ones as well. Also, the high constable cannot be considered an inferior officer, as that denomination applied to the petty constables only in relation to the high constable.

From these facts from Blackstone's Commentaries, it is reasonably certain that the inferior officers clause of the Constitution of the United States was not intended to allow a judicial court to appoint executive officers, such as the equivalent of a bailiff for executing the writs of the court. For by Blackstone the sheriffs appointed their bailiffs, not the courts; as the sheriff in his ministerial capacity executes the process and writs issued by the count, and the bailiffs are the inferior officers for immediately performing these tasks, the bailiffs being the "sheriff's officers". Also, the inferior officers under a superior officer should be subordinate, that is, wholly subordinate, to the superior officer. In view of Blackstone's descriptions, the officer under the laws of the United States which corresponds to the sheriff in the British Constitution in so far as the execution of writs issued by the courts, would be the marshal, as originally provided for by the 1789 law establishing the judicial Courts. The original brief quotes the parts of this 1789 law pertaining to the "attorney for the United States" erected for each of the thirteen "districts" of the United States that the law defined, and the clerk of each of the courts, but not the marshal. The section pertaining to the marshals is given below for completeness sake:

Sec. 27. And be it further enacted, That a marshal shall be appointed in and for each district for the term of four years, but shall be removable from office at pleasure, whose duty it shall be to attend the district and circuit courts when sitting therein, and also the Supreme Court in the district in which that court shall sit. And to execute throughout the district, all lawful precepts directed to him, and issued under the authority of the United States, and he shall have power to command all necessary assistance in the execution of his duty, and to appoint as there shall be occasion, one or more deputies, who shall be removable from office by the judge of the district court, or the circuit court sitting within the district, at the pleasure of either; ..."

The authority for appointing the marshals is not stated in the 1789 law, but by the Constitution they would have had to have been appointed by the President with the advice and consent of the Senate, as the law established the officer, hence, Article II, Section 2 of the Constitution would apply. The provision for the removable of the marshall at pleasure must have been regarded as a proper measure, to ensure the President's command of the execution of the laws; although the law is confusing as to who was to remove the marshal. It is of interest that the judge of a court could remove the deputy marshal at pleasure; though the judges do not appoint the deputy. Anyway, the law is of no value for determining the meaning of the Constitution, as it was a law enacted after the Constitution went into effect. At least it gives no evidence that a court of law could appoint the officers for executing the court judgements.

There is no plain indication in Blackstone, nor in the records of the Federal Convention, nor in The Federalist, that the makers of the United States Constitution intended that "inferior officers" of one department of the Government (not being a court) can be appointed by a head of another department, or by a court of law. The evidence in all these materials is to the contrary.

It is also plainly untenable that the inferior officers appointment clause can be construed as implying power to create an office for prosecuting officers of the United States for crimes, when the Constitution expressly directs that the House of Representatives shall have the sole power of impeachment, where impeachment is a mode of criminal prosecution, and is expressly prescribed in the Constitution in terms of delinquent officers of the United States, by Article IV, Section 4. The Supreme Court opinion in Morrison v. Olson, which holds that the Independent Counsel Statute is constitutional on the sole basis of the inferior officers clause, wholly neglects to consider the express sole Power directives in the Constitution on impeachment and the trial of all impeachments. Also, by the way, the prosecutor in Blackstone's Commentaries for ordinary criminal prosecutions is a "counsel for the crown" (IV, ch. 27, p.348), not an independent counsel. In an impeachment proceeding, the prosecutor, said Blackstone, is the House of Commons, the counterpart of the House of Representatives under the United States Constitution. (I, ch. 7, p. 259) It is concluded that the Supreme Court opinion in Morrison v. Olson et al. is erroneous and wrong, and misrepresents the true intentions of the Federal Convention with respect to the nature of inferior officers and the allocation of the power of their appointment.

The True Meaning of the Constitution
can only be determined honestly.

The directives in the Constitution pertaining to impeachment and inferior officers, of course, turn on the definition or meaning of these expressions. But here each officer of the Government, and members of Congress, ought to be bound by oath or affirmation to support the Constitution, as required by Article VI of the Constitution, and that means, to find out honestly what the Constitution truly means. The Constitution ought to mean what the people who ordained and established it intended it to mean. Their declared objects for ordaining the Constitution include, to "secure the Blessings of Liberty to ourselves and our Posterity;" and therefore, their intended meaning of the Constitution was intended for us today as well as themselves. If we do not follow this principle, then the real constitution of the government in the United States will be that whatever those who get power by whatever means decide on; and then the rest of us will be cut out of the right to enjoy the protection of the Constitution that was intended and established for us. In this regard, we ought not assume that the opinions or dicta of the Supreme Court are the precepts of Constitution; for the power of the Supreme Court is judicial only, according to Article III of the Constitution.

In order to properly determine the true meaning of any part of the Constitution, it is absolutely certain, that one cannot assuredly determine the true meaning of the Constitution without consulting Blackstone's Commentaries on the Laws of England, and Vattel's The Law of Nations, as well as the Records of the Federal Conventions, and The Federalist. The Constitution itself does not define the terms and expressions used in the Constitution, such as impeachment, indictment, crimes and misdemeanors, grand jury, inferior officer, judicial power, and the executive power. Therefore, we are plainly obliged to consult the treatises on constitutional law and the law of nations that the makers of the Constitution certainly consulted, and consulted thoroughly, when composing the Constitution, and the treatises which the makers of the Constitution consulted primarily were Blackstone and Vattel, as is perfectly evident when comparing the Constitution with Blackstone's Commentaries on the Laws of England and Vattel's The Law of Nations.

During the proceedings of the federal Convention of 1787 that ordained the Constitution, the trial of impeachments (impeachments of any national officers) as provided for in the original draft of a Constitution was placed under the jurisdiction, and, later, the original jurisdiction, of the Supreme Court; though without naming the authority that would have the power to impeach. This proves that impeachment was regarded by the makers of the Constitution as the peculiar, exclusive mode of criminal prosecution of delinquent officers of the United States. (See Records of the federal Convention, Vol. I, pages 21-22, Resolve No. 9 of the Randolph Resolutions, and the report of the Committee of Detail, article XI, Section 3 on the jurisdiction of the Supreme Court, Records, II, page 186.) Later in the federal Convention, of course, it was resolved to place the impeachment power solely in the House of Representatives, and the power to try all impeachments solely in the Senate, though the Senate's judgement to the removal of the party from office and disqualification to hold (future) office; but the party convicted by the Senate shall still be liable and subject to indictment, trial and conviction in the court of criminal jurisdiction for ordinary prosecutions (Article I, Section 3). Also, The Federalist, No. 65, confirms that impeachment under the Constitution is the mode of criminal prosecution peculiar, and exclusive, to the officers of the United States. This essay No. 65 will be reviewed later in the section on "High Crimes and Misdemeanors."

The preceding proves that the inferior officers appointment clause is not grant of power to the Congress to erect an office (Independent Counsel) for prosecuting high officers of the United States for crimes. However, the question of whether or not a President can be prosecuted for crimes apart from an impeachment needs a thorough treatment, which is provided by the following closer analysis of the Constitution and the intentions of its makers. By the way, the question of what constitutes a "high Crime and Misdemeanor" for an impeachable offense is thoroughly treated later in present Treatise.

A closer Analysis of the Constitution,
further proving that the Independent Counsel Statute
is unconstitutional.

The question has frequently been raised in the public: Can a "sitting" President be indicted? The very question suggests that the Constitution is not clear on this point, making it a matter of opinion, whether or not the office of "Independent Counsel" under chapter 40 of title 28 of the United States Code is constitutional. But really, the Constitution is clear on this. Consider the following parts of the Constitution:

1. By Article II, Section 1, "The executive Power shall be vested in a President of the United States."

2. The President is bound by oath to "faithfully execute the Office of President" (Art. II, Sec. 1).

3. Article II, Section 3 directs that the President "shall take Care that the Laws be faithfully executed."

4. Article II, Section 4 directs that the President "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

5. Article I, Section 2 directs that the House of Representatives "shall have the sole Power of Impeachment;" and Article I, Section 3 directs that "the Senate shall have the sole Power to try all Impeachments."

6. Article II, Section 1 provides that "In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President." (This section is affected by the 25th Amendment to the Constitution, which declares that "in case of the removal of the President from office or of his death or resignation, the Vice President shall become President.)

From these directives of the Constitution, it follows that the President remains in possession of the office of President unless he dies, or resigns, or is removed from office upon impeachment by the House of Representatives for a high crime and misdemeanor and conviction by the Senate.

Now, by the power and duty of the President, any executive officer, and particularly, a criminal prosecutor, as a United States attorney, must be subordinate to the President, and be subject to the commands of the President in the performance of such office of criminal prosecution. For the entire executive power of the Government is vested in the President alone, by Article II, Section 1, plainly; and therefore, Congress may make no law taking any portion of the executive power from the President without a manifest contravention of Article II, Section 1 of the Constitution. Plainly, a part of the execution of the laws is the business of a criminal prosecutor for the United States. Therefore, since the President is vested with the whole executive power, any office of counsel, as an attorney for the United States, erected by a statute for prosecuting persons for crimes must be an instrument in the hands of the President, the chief executive magistrate by the Constitution, else the President would not possess the executive power and could not then discharge his duty to take care that the laws be faithfully executed.

Suppose now that the President, the chief executive magistrate, has committed a criminal office, and more specifically, a high crime, not a petty offense. Should he prosecute himself for the crime? Surely, that would be an absurdity. It would be absurd to suppose that a delinquent President would carry out a writ of execution of a judgment pronounced against him by a Court, a writ directed at him to arrest himself and put himself in prison. But the Constitution confers upon the President no privilege or prerogative of immunity from a criminal prosecution. It results, therefore, that the impeachment power vested solely in the House of Representatives is the only power provided in the Constitution for prosecuting the President for crimes. The Constitution presumes that the President's oath binds him to be law abiding, to execute the office of President faithfully, and to take care that the laws be faithfully executed. Therefore, should the President violate the law and commit a high crime, or high misdemeanor, thereby violating his oath, he would be bound by honor of his oath resign from the office of President. If, however, he does not resign after violating his oath by the commission of a high crime or misdemeanor, then the House of Representatives may enquire into the matter and prosecute him for the offence, should they find him guilty of having committed a criminal offence of the rank of a "high crime and misdemeanor."

The Constitution also provides for the removal of a delinquent President, and thereby answers the problem of how to execute a judgment against the President. Article II, Section 4, declares that the President shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crime and misdemeanor. Article I,Section 1, together with Article II, Section 4, make clear that judgement upon the conviction shall extend to "the removal from office." There are three steps involved in the removal of a delinquent President from office: conviction, judgment, and execution of judgement, which are distinct steps laid down in Blackstone's Commentaries on the Laws of England (IV, chapters 27, 29, and 32).

The conviction is the finding of guilty of the crime charged in the impeachment, upon the trial of the impeachment by the Senate; and the judgment is the penalty which the law annexes to the crime, which the Senate is duty bound by Article II, Section 4, to pronounce, the required penalty being that the President shall be removed from office. (Article I, Section directs that the judgment in case of impeachment shall not extend further than the removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; the person convicted shall thereafter be liable and subject to indictment, trial, judgement, and punishment, according to law.) The power of the Senate as the court which tries the impeachment, by the common law as laid down by Blackstone's Commentaries, is to issue to the appropriate executive officer or officers the necessary writ of execution, commanding him or them to remove the President from office, and thereby empowering the officer or officer to do so. Upon the President's removal from office, the Vice President becomes the President, by Amendment 25. Such appears to be the constitutional procedure for the removal of a delinquent President from office.

The Constitution may be examined even more closely. Article II, Section 4 makes it plain that an impeachment of an officer of the United States, and the prosecution of the impeachment at the trial in the Senate, is the criminal prosecution of the civil officers of the United States for crimes. Article II, Section 4 directs that the President, and all other civil officers of the United States, shall be removed from office on the impeachment for, and conviction of, high crimes and misdemeanors. This section plainly indicates that the mode of the formal accusation of civil officers of criminal wrong doing is by impeachment, a special term of the English common law referring to parliamentary impeachment, which is a criminal prosecution of persons intrusted with the public affairs, that is, officers of the government. The formal accusation of impeachment is not a presentment or indictment by a grand jury. The Fifth Amendment of the Constitution pertains to "a presentment or indictment of a Grand Jury, thereby proving that impeachment must be a different mode of criminal prosecution. No where in the Constitution is it stated that a civil officer of the Government may be accused of a crime by a presentment or indictment of a grand jury, or may be convicted by the Supreme Court or any inferior Court of the United States. Moreover, Article I, Section 3 of the Constitution expressly provides for the possible "indictment, trial, judgment, and punishment" of a delinquent officer, according to law, which plainly involves proceedings in the courts of criminal jurisdiction; but after he is removed from office upon the conviction by the Senate of an impeachment by the House of Representatives.

The People of the United States who ordained and established the Constitution did so in part, to establish justice and to secure the blessings of liberty to themselves and their posterity (the preamble). The Constitution can only mean what the People intended it to mean, by what its makers plainly expressed. To hold, as the Supreme Court in Morrison has held, that the exceptional power granted to the Congress by Article II, Section 2, to "vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments," implies a discretion power for the Congress to erect an inferior office, and establish its "inferior officer," but call him an "independent counsel," for prosecuting the highest executive officers of the Government, including the President, for crimes, is patently absurd; more so, because the preceding clause in Article II, Section 2 expressly directs the President to appoint, by and with the advice and consent of the Senate, all officers of the United States, and because the Constitution expressly directs that the House of Representatives shall have the sole power of impeachment, impeachment being a criminal prosecution.

Who else could impeach officers of the Government, if the House of Representatives were not vested with the sole power of impeachment, but some independent office other than the Senate? For the Senate is to try all impeachments, as Article I, Section 3 expressly directs. The trier cannot be the prosecutor. So, manifestly, the expression, "the sole Power of Impeachment" vested in the House of Representatives by Article I, Section 2, can only mean to preclude any other body or office assuming an "impeachment" power, that is, to preclude a concurrent power of impeachment. For if the words "the sole" in the Article I, Section 1 clause conferring to the House of Representatives "the sole Power of Impeachment" were omitted, so as to read, "The House of Representatives shall have power to impeach civil officers of the United States," &c., then an office could be erected with a concurrent power of impeaching civil officers of the United States for high crimes and misdemeanors. Therefore, impeachment under the Constitution must be the only mode of criminal prosecution of civil officers of the United States for crimes, or at least, for high crimes and misdemeanors. This deduction is supported by Blackstone's definition of impeachment, given in Book IV, as discussed below.

To suppose that the a power which is not expressly delegated or granted to the Congress or the Courts by the Constitution, such as a power to appoint and authorize an "inferior officer" to prosecute the highest executive officers of the Government, including the President of the United States, for high crimes, can be established as part of the "constitutional law" of the United States on the opinion of the Supreme Court that the inferior officers appointment clause of Article II, Section 2 implies such power, when the Constitution expressly declares a power for prosecuting the President for crimes and expressly directs that that power shall be vested solely in the House of Representatives, is plainly wrong, and deprives the People of their right to ordain and establish the Constitution for the United States. For the People can only ordain and establish that which they declare.

Furthermore, an express provision for the removal of civil officers of the United States from office is disregarded in favor of a Supreme Court perception and "doctrine" of implied powers. This is a system of government where the Government gets its powers from the Supreme Court, not from the People, and plainly violates the Tenth Amendment of the Constitution and the manifest tenor of the Constitution, as well as the republican principle that the powers of the Government shall be derived from the consent of the People (Declaration of Independent, July 4, 1776). The word consent is agreement given that is plain to the senses, hence, the Government powers can only be those that are plainly declared, with plain, established meanings of words and expressions.

The Constitution's directive that the House of Representatives shall have the sole power of impeachment is entirely consistent with Blackstone's Commentaries on the Laws of England, specifically the mode of criminal prosecution called parliamentary impeachment. Said Blackstone,

"But an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law, and has been frequently put in practice; being a presentment to the most high and supreme court of criminal jurisdiction [the house of lords] by the most solemn grand inquest of the whole kingdom [the house of commons]. ... The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords; ...

For, though in general the union of the legislative and judicial powers ought to be most carefully avoided, yet it may happen that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either dares not or cannot punish. Of these the representatives of the people, or house of commons, cannot properly judge; because their constituents are the parties injured: and can therefore only impeach. But before what court shall this impeachment be tried? Not before the ordinary tribunals, which would naturally be swayed by the authority of so powerful an accuser. Reason therefore will suggest, that this branch of the legislature, which represents the people, must bring it's charge before the other branch, which consists of the nobility, who have neither the same interests, nor the same passions as popular assemblies. ... It is proper that the nobility should judge, to insure justice to the accused; as it is proper that the people should accuse, to insure justice to the commonwealth...."

(IV, Ch. 19, pp. 256-258, the part on "The high court of Parliament.")

According to Blackstone's Chapter 23 of Book IV, on "the several Modes of Prosecution," the manner of the prosecution of delinquents for crimes that are proper for the ordinary criminal cases are discussed; and therein are defined the presentment and indictment. Said Blackstone,

"A presentment, generally taken, is a very comprehensive term; including not only presentments properly so called, but also inquisitions of office, and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king." (IV, Ch. 23, page 298).

An indictment is the mode of prosecution which involves the preferring to a grand jury a bill of indictment by a prosecutor in the name of the king, as the king is the prosecutor, by royal prerogative (Book I, Ch. 7, p. 258); and the grand jury then hears and enquires into the evidence on behalf of the prosecutor, which evidence the prosecutor lays before the grand jury, and then either endorses the bill of indictment, if satisfied with the truth of the accusation, or asserts otherwise, whereupon the party is discharged.

Since Blackstone characterized an impeachment by the house of commons as a presentment, and since a "presentment," generally taken, is a comprehensive term for the "formal accusation" of criminal wrong doing, it follows that impeachment under the Constitution of the United States is the intended mode of prosecution of officers of the United States for crimes. Again, Amendment V of the Constitution mentions the presentment, as well as the indictment mode of criminal prosecution, which proves that the makers of the Constitution followed Blackstone's Commentaries on the Laws of England in writing the Constitution; and so the impeachment is the peculiar mode of prosecution of the officers of the government for crimes.

Furthermore, Article II, Section 4 of the Constitution declares that:

"The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

If the makers of the Constitution had intended that the civil officers of the United States shall also be removed from office upon an indictment for, and conviction of, treason, bribery, or other high crimes and misdemeanors, then certainly they ought to have, and surely, they would have, so specified the indictment mode in the very section of the Constitution which expressly provides for the removal from office of civil officers of the United States on conviction of crimes (Art. IV, Sec. 4), a point which is reinforced by Article I, Section 3 of the Constitution, which expressly provides that,

"Judgments in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

So, this proves that an indictment was understood by the Federal Convention of 1787 as one mode of criminal prosecution, and impeachment another mode, where impeachment is a presentment by the House of Representatives, not by a grand jury, but by "the most solemn grand inquest of the nation," the House of Representatives (the counterpart of the house of commons of the British constitution.

Should we not expect the judges of the Supreme Court to know these established modes of criminal prosecution: that the mode of impeachment is the peculiar mode of prosecution for the case of delinquent officers of the government: that being a presentment, not an indictment, and presentment not by a grand jury but by the grand inquest of the nation?

This is further reinforced by the chapter of Blackstone's Commentaries on the king's prerogative as the prosecutor, except in cases of parliamentary impeachment. In discussing the king's prerogative of pardoning offenses:

"And hence also arises another branch of the prerogative, that of pardoning offences; for it is reasonable that he only who is injured should have the power of forgiving [the king is considered the person injured in criminal offences, according to Blackstone]. And therefore, in parliamentary impeachments, the king has no prerogative of pardoning: because there the commons of Great Britain are in their own names the prosecutors, and not the crown; the offence being for the most part avowedly taken to be done against the public." (I, Ch. 7, p. 259)

Likewise, the Constitution of the United States declares that the President

"shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Thus, the impeachment is a prosecution for crimes.

Article II, Section 4 of the Constitution prescribe the only mode of the prosecution and the removal of the civil officers of the United States, including the President, for reasons of criminal behavior, namely, the mode of impeachment. It does not prescribe any of the other modes, indictment, presentment, information, or appeal, the four modes of criminal prosecution which Blackstone's describes for the prosecution of delinquents in the courts of law. (Book IV, Ch. 23). Therefore, impeachment is a special form of a formal accusation of criminal offenses committed, defined for, and restricted to, civil officers of the United States accused of high crimes and misdemeanors. The word impeach is synonymous with accuse, except that impeach, which is a word associated with impeccable, seems to be reserved for the accusation of persons of high station in the society, that is, persons appointed or elected to public office.

The Constitution does not specify any alternative mode of criminal prosecution of officers of the United States, such as by the ordinary mode of presentment or indictment by a grand jury, or by an information presented to a court by a counsel or attorney for the United States. Plainly, the act of impeachment is a criminal prosecution, and since it is specifically and expressly provided in the Constitution for the case of criminal offenses committed by civil officers of the United States, including the President, who, upon conviction and removal from office, shall be liable and subject to further prosecution by the ordinary mode of indictment and trial in a court of law, we ought to suppose that had the Federal Convention intended that the President and all other civil officers of the United States be subject to the ordinary mode of criminal prosecution while in office as an alternate mode of prosecution, they would have so specified it; like the attention they gave to providing expressly that "the Party convicted [in a trial of an impeachment] shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

Moreover, it should not be in need of reminding; but, the Constitution of the United States is not a law made by the legislature but by the People, a fundamental law prescribing the powers and duties of the officers of the Government, and the sanctions if they shall misbehave: a law enjoining the officers that shall have power to do this or that, and shall do, or shall not do, this or that; and prescribing the consequences if they should they violate their oath of office and duties. Plainly, Article II, Section 4, together with Article I, Section 3, prescribes the manner of the prosecution of delinquent officers for crimes: beginning with the formal accusation (impeachment), through the trial and conviction, followed by the removal from office; and then the party convicted being still subject to further prosecution, by indictment, trial, and punishment, according to law. The Constitution does not declare that "A civil officer who is suspected of having committed a high crime and misdemeanors shall be liable and subject to indictment, trial, conviction, and punishment, according to law, regardless of whether or not the House of Representatives chooses not to impeach the officer." We ought not to assert as constitutional law that rule, construction, or doctrine that is not plainly declared.

It is concluded that the Office of Independent Counsel erected by the Ethics in Government Act is unconstitutional, and the Supreme Court's opinion in Morrison v. Olson, et al., is wrong. The inferior officers clause of the Constitution, Article II, Section 2, confers no power to the Congress to erect such an office. The impeachment under the Constitution is the peculiar, exclusive prosecution of officers of the United States for high crimes and misdemeanors, and that since Article I, Section 2 directs that the House of Representatives shall have the sole power of impeachment, and the Senate shall have the sole power of trying all impeachments, and the independent counsel statute is unconstitutional, since it violates these directives of the Constitution and establishes another office of executive power, independent of, and not subordinate to, the President, for prosecuting officers of the United States for crimes, all in contravention of the Constitution's impeachment power directives.
 

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