Independent Counsels Under the Ethics in Government Act of 1978: A Violation of the Separation of Powers Doctrine or an Essential Check on Executive Power?

I. INTRODUCTION When Watergate Special Prosecutor Archibald Cox attempted to investigate allegations of misconduct by officials in the Nixon administration, President Richard Nixon ordered him fired. 1 Although Leon Jaworski replaced Cox as Watergate Special Prosecutor, 2 the President's dismissal of Cox patently demonstrated that the executive branch could not carry out an impartial investigation of its own members. In response to this fundamental conflict of interest, Congress enacted the Ethics in Government Act of 1978. 3 The Ethics Act provides for the appointment of independent counsels to investigate and prosecute certain high level executive officers suspected of criminal violations. 4 To ensure that these independent counsels may act without bias, the Act vests significant authority over their appointment, supervision, and removal in the judicial rather than in the executive branch of the federal government. The notion of removing a prosecutor from the supervision of the executive branch has been the subject of controversy since Watergate. 5 This controversy stems from concern that the independent counsels' close relationship with the judicial branch may contravene the separation of powers doctrine. 6 In 1987, this controversy continued as former National Security Council member Oliver North, 7 former White House deputy chief of staff Michael Deaver, 8 and former Assistant Attorney General Theodore Olson 9 brought suit in federal court challenging the constitutionality of the Ethics Act on separation of powers grounds. Opponents of the Ethics Act claim that the Act vests the independent counsel with substantial authority to ...