38 AM. U.L. REV. 275
Copyright (c) 1989 The American
University Law Review
American University Law Review
38 Am. U.L. Rev. 275
ARTICLE: A SYMPOSIUM ON MORRISON
V. OLSON: ADDRESSING THE CONSTITUTIONALITY OF THE INDEPENDENT
COUNSEL STATUTE: EXECUTIVE CONTROL OVER CRIMINAL LAW ENFORCEMENT:
SOME LESSONS FROM HISTORY
HAROLD J. KRENT *
* Assistant Professor of Law,
University of Virginia. I would like to thank Pamela Karlan,
Michael Klarman, Peter Low, Charles McCurdy, George Rutherglen,
William Stuntz, and Nicholas Zeppos for offering comments on an
earlier draft. I would also like to thank Jeffrey Beyle, Joni
Gamble, and Daniel Vogel for their research assistance. Finally, as
an attorney for the Department of Justice from 1983-1987, I
participated in the early phases of the independent counsel
litigation. The views expressed in the Article, however, are my
In essence, the Court determined that Congress' interest in
providing for an impartial investigation of senior executive branch
officials outweighed the intrusion on the Executive's prerogative to
control criminal law enforcement. ... In this Article, I will focus
on the question left unanswered by the majority and argue that, at
least from a historical perspective, criminal law enforcement cannot
be considered a core or exclusive power of the executive branch.
Resolving whether criminal law enforcement is an exclusive executive
branch function is critical not only to assess the propriety of the
Supreme Court's decision in Morrison,
but also to gauge its scope. ... When Congress under the 1789
Judiciary Act established the office of district attorney, it
implicitly vested the district attorneys with exclusive authority to
federal crimes within their jurisdiction. ... Upon application of a
private citizen, Justice Livingston issued warrants against three
suspects for violation of the Neutrality Act. ... Congress in 1806
and in 1808 granted to certain county courts in New York and
Pennsylvania "cognizance of all complaints and prosecutions for
fines, penalties and forfeitures arising under the United States
revenue laws," including the power "to exercise all and
every power in the cases of a criminal nature, cognizable before
them . . . for the purpose of obtaining a mitigation or remission of
any fine, penalty or forfeiture." ...
In Morrison v. Olson,
n1 the Supreme Court held that Congress may vest prosecutorial
authority in a government official independent of the President's
effective control. Although the majority recognized that the
independent counsel statute n2 "reduces the amount of control
or supervision that the Attorney General and, through him, the
President exercises over the investigation and prosecution of a
certain class of alleged criminal activity," n3 it concluded
that the President retained "sufficient control over the
independent counsel to ensure that the President is able to perform
his constitutionally assigned duties." n4 In essence, the
Court determined that Congress' interest in providing for an
impartial investigation of senior executive branch officials
outweighed the intrusion on the Executive's prerogative to control
criminal law enforcement. n5
In a sharp dissent, Justice
Scalia rejected the Morrison majority's premise that granting
the independent counsel a measure of statutory tenure n6 comported
with the President's constitutional responsibility to "take
care" that the laws are faithfully executed. n7 Fragmenting
control over criminal law enforcement, in his view, undermined the
constitutional mandate for a unitary executive. n8 To buttress
that determination, Justice Scalia, as had the Court of Appeals
[*277] for the District of Columbia, n9 asserted that criminal
law enforcement is a "core" or exclusive function of the
executive branch, which must be directed by the President or by
someone under the President's control. n10 He concluded that "the
President's constitutionally assigned duties include complete
control over investigation and prosecution of violations of the
The assertion that criminal law
enforcement is a core executive function carries a certain ring of
plausibility. To many, criminal law enforcement is almost
synonymous with the executive arm of the state. Several Supreme
Court opinions have suggested as much, n12 and statements to that
effect appear in lower court opinions. n13
Although the asserted special
status of criminal law enforcement constituted one of the principal
disputes in the court of appeals, n14 the majority in Morrison
never addressed the issue directly. The [*278] Supreme Court
stated only that "[t]here is no real dispute that the functions
performed by the independent counsel are 'executive' in the sense
that they are law enforcement functions that typically have been
undertaken by officials within the executive branch." n15 The
Morrison majority skirted the question whether criminal law
enforcement stands on a different footing from the exercise of other
executive branch functions, such as implementation of the civil laws
passed by Congress or conduct of foreign relations.
In this Article, I will focus on
the question left unanswered by the majority and argue that, at
least from a historical perspective, criminal law enforcement cannot
be considered a core or exclusive power of the executive branch.
Resolving whether criminal law enforcement is an exclusive executive
branch function is critical not only to assess the propriety of the
Supreme Court's decision in Morrison, but also to gauge its
scope. If criminal law enforcement rests uniquely within the
executive's control, then the validity of the Court's analysis would
be open to serious question. n16 Moreover, the Court's decision
would then suggest that Congress can interfere substantially with
other "special" or "core" executive functions,
such as the foreign relations power. n17
If, on the other hand, contrary
to past judicial pronouncements, criminal law enforcement does not
warrant such distinctive status, that finding would bolster the
result reached by the Morrison Court. Congress could then
exercise at least some discretion in shaping how criminal laws are
to be enforced, though perhaps not as fully as it has historically
in the civil context by establishing independent agencies to
implement broad statutory mandates. n18 At the same [*279] time,
the Morrison analysis might not necessarily apply in areas
subject to more exclusive Presidential direction. n19
Most commentators agree that the
Executive's power vis-a-vis the other branches rests on a continuum.
n20 At one end is the discharge of ministerial duties in civil
matters, a function subject to considerable congressional and
judicial intrusion. n21 There is generally no dispute that
Congress can direct an officer in the executive branch to make a
report to Congress n22 or to pay a specified amount to a claimant.
n23 At the other end of the spectrum are the discretionary conduct
of foreign relations and authority to grant pardons, powers with
which Congress and the judiciary can only minimally interfere. n24
The Executive's more routine responsibility to exercise discretion
[*280] in executing the broad mandates passed by Congress lies
somewhere between the two poles. Because there is probably no
presidential task completely immune from congressional regulation,
n25 some accommodation among the branches is required to determine
whether a disputed congressional measure unduly intrudes into the
prerogatives of the President. n26 The accommodation, however,
will differ substantially depending upon the nature and source of
the executive power at stake. Thus, the question avoided by the
Morrison majority concerns where on the continuum the
Executive's responsibility for criminal law enforcement should lie,
towards the end with the foreign relations power, or towards the
middle, closer to the Executive's duty to implement the many
non-criminal laws enacted by Congress.
There is no question but that
the Executive historically has enjoyed substantial authority in
overseeing and coordinating criminal law enforcement efforts. The
executive branch of the new nation enjoyed greater authority in
criminal law enforcement than had the comparatively impotent
Executive under the Articles of Confederation and even in comparison
to the executive governments in the colonies and newly-formed
[*281] Yet from the inception
of the republic, the President has not exercised total dominion over
criminal law enforcement matters. Despite the executive branch's
leading part, Congress, the courts, private citizens, and state
officials have played significant supporting roles in federal
criminal law enforcement. Although the historical record may not
answer directly the precise question reached by the Supreme Court --
whether federal prosecutors must be subject to the President's
plenary removal authority -- it lends considerable support to the
majority's conclusion that Congress retains wide latitude in
deciding the extent and manner of the Executive's criminal law
enforcement efforts. n28
In this Article, I do not by any
means purport to present a definitive historical account of the
Executive's criminal law enforcement efforts. I will, however,
dispute Justice Scalia's implicit conclusion that criminal law
enforcement must be historically viewed as a core executive
function. After briefly addressing in Part I the constitutionally
prescribed role of Congress in shaping criminal law enforcement
policy, I will focus in Part II on three contexts in which Congress
has acted "affirmatively" to circumscribe executive
First, Congress for almost a
century directed that criminal law enforcement responsibility be
decentralized, entrusting the bulk of such efforts to part-time
district attorneys who had little contact with the President and his
subordinates in the nation's capital. Second, private citizens,
even after the Constitution was ratified, continued to play a
prominent role in enforcing the criminal laws, just as they did at
common law and continue to do today in England. Third, the initial
and succeeding Congresses vested federal criminal law enforcement
responsibilities in state officials, thereby removing a segment of
overall enforcement from the Executive's direct control. Thus,
Congress, by determining both who can enforce the criminal laws and
how those laws should be enforced, has long helped shape and confine
the Executive's discretion in criminal law enforcement matters.
I. THE CONSTITUTIONALLY
PRESCRIBED ROLE OF CONGRESS IN CRIMINAL LAW ENFORCEMENT
Before examining the historical
underpinnings of the majority's [*282] conclusion in Morrison,
it is helpful to sketch the respective constitutional powers of
Congress and the Executive in shaping federal criminal law
enforcement. n29 The Constitution explicitly grants neither the
Executive nor the legislative branches full control over federal
criminal law enforcement. n30 To be sure, the Constitution vests
the President with the "power to grant reprieves and pardons
for offenses against the United States, except in cases of
impeachment," n31 but it nowhere directs the President
explicitly to assume unfettered control of criminal law enforcement.
n32 Similarly, the Constitution directs the Executive to "take
care that the laws be faithfully executed," n33 yet does not
distinguish between criminal and civil law enforcement. From a
textual analysis, therefore, the President's control over
enforcement of the criminal laws seems to stand on much the same
footing as civil law enforcement: certainly, the Executive is to
carry out the law in both contexts, but that duty is shaped largely
by the "laws" that Congress enacts. n34
In contrast to the President's
uncertain responsibilities, the Constitution affords Congress a more
tangible role in shaping criminal law enforcement. First, the
Constitution assigns Congress the fundamental task of defining the
content of criminal laws. Congress retains the discretion to table
or modify any criminal law proposed by the executive branch.
Indeed, Congress historically has refused [*283] to enact many
criminal laws suggested by the executive branch. n35 Even if the
Executive urges that such laws are imperative because of the threat
that particular conduct poses to the well-being of the nation,
Congress may disagree and refuse to act. n36 Conversely, if
Congress objects to the Executive's enforcement of a particular
criminal law, Congress can of course repeal or suspend the law.
Second, the Constitution also
grants Congress some authority to decide how the criminal laws are
to be enforced. Congress may specify what penalties are to be
assessed for various criminal violations, n38 what law enforcement
agencies have jurisdiction over particular criminal investigations,
n39 and what procedures the executive branch must follow in
investigating crimes. n40 As an initial matter, therefore,
Congress and not the President decides how best to meet criminal law
enforcement objectives. Moreover, even after enactment of a
criminal law, Congress may decide to confer amnesty upon those who
have violated that law and thereby directly participate [*284] in
criminal law enforcement. n41
Third, Congress' control over
the appropriations process affords the legislature a potent weapon
with which to influence the Executive's criminal law enforcement
authority. n42 Article I, section 9 provides that "No Money
shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law." Justice Story explained that but
for the appropriations clause,
the executive would possess an
unbounded power over the public purse of the nation; and might apply
all its moneyed resources at his pleasure. The power to control and
direct the appropriations constitutes a most useful and salutary
check upon profusion and extravagance, as well as upon corrupt
influence and public peculation. n43
Congress has in fact made it a
crime for any executive official to spend monies in excess of that
appropriated by Congress. n44 As with its authority to define the
content of the criminal laws, Congress' control over the purse
strings represents a "negative" restraint on the
Executive's duty to enforce the criminal laws. n45 The Executive
[*285] must obtain Congress' agreement prior to taking any law
enforcement measure which expends resources. n46
The constitutional structure
does not directly answer the question whether Congress may vest
criminal law enforcement authority in an officer independent of the
President's plenary removal authority. Yet our system of separated
powers affords Congress the ability to influence the Executive's
enforcement of the criminal laws in various ways. Congress' powers
to decide which conduct to make criminal, to prescribe how the
Executive is to enforce such laws, and to appropriate funds only for
criminal law enforcement purposes which it approves provide a
structure within which Congress can check the Executive's control
over criminal law enforcement.
II. PRIOR CONGRESSIONAL ACTIONS
CIRCUMSCRIBING EXECUTIVE CONTROL OVER CRIMINAL LAW ENFORCEMENT
The constitutionality of the
independent counsel statute hinges upon Congress' power to designate
the personnel who are to exercise federal criminal law enforcement
responsibility. Congress at a minimum enjoys the authority to
determine which executive branch agency is to carry out specific
criminal enforcement functions; n47 the question posed by the
independent counsel statute concerns whether Congress may in
addition vest enforcement responsibilities [*286] in personnel who
are not subject to the President's plenary removal power. In other
words, the issue focuses on whether Congress' exercise of its
Article I authority to determine the manner in which the federal
criminal laws are to be enforced has intruded into the Executive's
Article II prerogative to enforce the criminal laws. Examination of
prior congressional enactments is quite illuminating, for Congress
has vested criminal law enforcement responsibility not only in
senior executive branch officials but also in executive branch
officials insulated from direct control of the Attorney General, in
individuals shielded from any executive branch control, and in state
officials similarly independent of the executive branch's
A. The Absence of
Centralized Control Within the Executive Branch Over Criminal Law
From an early period, Congress
limited the Executive's effective control over criminal law
enforcement "affirmatively" by dispersing supervisory
responsibility among various executive officials. Congress vested
limited supervisory authority in the Attorney General, declining to
provide him with the means to develop and implement effective
federal policy to combat crime. Although there were marshals and
deputy marshals who served as federal enforcement officials, the
Executive also had to rely on private citizens and state officials
to aid in apprehending and holding criminals. n48 The deputy
marshals were subject to removal not by the Executive, but by the
courts. n49 The reality of a vigorous, unified criminal law
enforcement machine in the executive branch is of comparatively
Although Congress created the
office of Attorney General in the 1789 Judiciary Act, it vested that
office with only limited power. Congress directed the Attorney
General "to prosecute and conduct all suits in the Supreme
Court in which the United States shall be concerned, and to give his
advice and opinion upon questions of law when required by the
President of the United States, or when requested by the heads of
any of the departments. . . ." n50 Yet Congress provided the
Attorney General with no mechanism for supervising the federal
district attorneys. n51 The Attorney General [*287] might not
learn of suits progressing in the newly created trial courts, had
virtually no say in the positions taken by the district attorneys in
such suits, and had little opportunity to coordinate the positions
taken by the district attorneys. As a result, the Attorney General
could not shape the record in cases winding their way to the Supreme
Court. n52 Attorney General Randolph soon complained that:
[I]t may frequently arise that
the United States may be deeply affected by various proceedings in
the inferior courts, which no appeal can rectify. The peculiar duty
of the Attorney General calls upon him to watch over these cases;
and being, in the eye of the world, responsible for the final issue,
to offer advice at the earliest stage of any business; and indeed,
until repeated adjudications shall have settled a clear line of
partition between the federal and State courts, his best exertions
cannot be too often repeated to oppose the danger of a schism. For
this purpose the attorneys of the districts ought, I conceive, to be
under an obligation to transmit to him a state of every case in
which the harmony of the two judiciaries may be hazarded, and to
communicate to him those topics on which the subjects of foreign
nations may complain in the administration of justice.
Perhaps, too, in the review
which the President takes of the affairs of the Union at the opening
of each session of Congress, the judicial department will be
comprehended. But the Attorney General, who ought to be able to
represent the true situation of it, must be forever incompetent to
the task until he may officially, and with the right of expecting an
answer, propound his inquiries to the district attorneys. n53
Congress, however, failed to
respond to Randolph's entreaty. n54
During President Washington's
administration, the Secretary of State evidently assumed titular
responsibility for supervising the district attorneys, although that
supervision was lax. n55 Moreover, the [*288] district attorneys
did not even have control over all legal proceedings in their
districts, for Congress vested the Comptroller of the Treasury with
the power and discretion to institute legal proceedings in cases of
delinquent revenue officers. n56 In 1816, President Madison
complained to Congress of the lack of overall coordination of the
nation's legal affairs. n57 Congress, however, declined to vest
the Attorney General with greater power, and several years later
merely transfered the Comptroller's power to a new Agent of the
Treasury n58 and vested that agent with the authority to supervise
the district attorneys. n59
Similarly, when President
Jackson later protested to Congress that this bifurcated authority
resulted in inefficient and insufficient law enforcement control,
Congress chose not to centralize authority in the Attorney General,
as Jackson had sought, but instead created a new office, Solicitor
of the Treasury, with powers comparable to those formerly enjoyed by
the Agent of the Treasury. n60 While some in Congress agreed with
the President that unifying control over law enforcement would
enhance the Executive's authority to enforce the [*289] law
effectively, n61 others were suspicious of adding duties to the
office of the Attorney General. n62 Jackson signed the bill, but
[T]he public interest would be
greatly promoted by giving to that officer [the Attorney General]
the general superintendance of the various law agents of the
Government, and of all law proceedings, whether civil or criminal,
in which the United States may be interested. . . . n63
In the succeeding years, new
executive efforts to centralize responsibility and control of law
enforcement matters were unsuccessful. n64 Indeed, even the
Solicitor of the Treasury had reason to complain, importuning
It is respectfully suggested
that criminal cases be reported to the solicitor in the same manner
as those of a civil nature. . . . A general supervisory power over
these cases would enable the solicitor to give such instructions to
marshals and district attorneys as would secure the apprehension of
many dangerous criminals who might otherwise escape by fleeing from
one district to another. n65
It was not until the centripetal
pressures of the Civil War that Congress agreed to begin
centralizing law enforcement authority. n66
For almost a century, Congress
thus withheld the means necessary to enable the Executive to
coordinate effective control over criminal law enforcement. By
diffusing supervisory responsibility, n67 Congress circumscribed
the Executive's practical ability to control law enforcement.
Therefore, any claim that criminal law enforcement is a "core"
or exclusive executive power must explain the embarrassing [*290]
early history of largely ineffective executive control over law
As this historical perspective
suggests, the Attorney General need not be vested with the authority
to oversee or trigger an investigation by the independent counsel.
Rather, that role could, consistent with historical practice, be
assigned to the United States Attorney for the Southern District of
New York or to any other officer within the executive branch.
Indeed, the Department of Justice need not be involved at all in the
investigation and prosecution. There traditionally has been no
requirement of a centralized criminal justice bureaucracy. n68
To be sure, the limited funding
and dispersal of authority within the executive branch by themselves
do not imply that Congress, or anyone other than an officer
removable at the President's pleasure, has ever exercised a direct
role in criminal law enforcement. What federal criminal law
enforcement existed could still have remained within the Executive's
control, subject only to Congress' appropriations power. But the
decentralization does suggest that the President historically has
not been able to structure the Executive's law enforcement machinery
in the way he sees fit -- rather, Congress has joined in determining
B. Participation by Private
Parties in Criminal Law Enforcement
Congress has also acted in more
direct ways to shape the contours of criminal law enforcement,
particularly by vesting significant responsibility in private
citizens. Congress has long assigned some criminal law enforcement
responsibility outside of the Executive's control altogether.
Although that responsibility has today diminished, the past
participation by private citizens in criminal law enforcement
indicates that the Executive has not historically enjoyed exclusive
authority over criminal law enforcement measures.
1. The role of individuals
in criminal law enforcement prior to the ratification of the
At common law in England, law
enforcement actions generally were initiated and prosecuted by the
individuals who were victims of crime. Crime was viewed not as an
attack upon the public, but essentially as an attack upon the
individual victim. n69 At their own expense, victims could
initiate prosecutions against those suspected of [*291] theft,
battery, and other crimes, and they would typically hire attorneys
to prosecute the cases. n70 For the victims, personal access to
the criminal justice system replaced the prior tradition of
individual or family retribution.
Because of the expense involved
in private prosecution, Parliament provided a series of monetary
incentives to encourage suits. In some contexts, a successful
prosecutor could recover the costs of the suit, in others, a victim
could obtain restitution, and in still others, the victim could gain
double damages from the defendant. Damages were considered part of
the criminal case. n71 Although by the eighteenth century public
officials in England prosecuted "public" crimes in the
name of the king, n72 the criminal law enforcement system was
largely dependent upon the actions of private individuals.
To augment the private law
enforcement scheme, Parliament also provided incentives for persons
other than victims to participate in law enforcement activities. If
a private individual successfully initiated and then completed a
prosecution against a wrongdoer, he or she could split a statutory
fine or forfeiture with the government. n73 These civil suits,
so-termed "qui tam" actions, n74 grew out of the
criminal statute and were considered an integral means of promoting
criminal law enforcement. Qui tam actions served as a type of
informer's statute, encouraging those aware of criminal activity to
come forward to help enforce the laws.
The system of private law
enforcement existed, with variations, in the colonies. n75
Although the importance of public prosecutors grew with the
expansion and increasing mobility of the population, n76
individuals still played a fundamental role in the criminal justice
system. Private citizens initiated prosecutions directly or sued
via qui tam actions to collect penalties owed to the state. n77 In
the United States, because the Articles of Confederation did not
provide for general [*292] federal criminal law enforcement, n78
private citizens were primarily responsible for criminal law
enforcement in the period prior to the ratification of the
2. The role of private
citizens in criminal law enforcement under the Constitution
The creation of a formidable
federal executive power in the Constitution did not automatically
end the participation of private citizens in enforcing the criminal
law. Although Congress never vested victims with a general right to
prosecute defendants under federal criminal provisions, citizens in
the first years under the Constitution evidently presented evidence
of crimes directly to the grand jury. n79 More commonly,
individuals continued as at common law to bring evidence of crimes
before magistrates and then, upon the magistrate's approval, to
obtain a bench warrant for the defendant's arrest. n80 Without any
involvement from the district attorneys, [*293] therefore, grand
juries issued presentments of crimes n81 and judges ordered
suspects arrested, pending trial. More importantly, Congress
enacted a web of civil qui tam provisions that authorized victims
and non-victims alike to help enforce the criminal laws.
a. Initiation of
prosecutions by private citizens
After ratification of the
Constitution, victims did not directly participate in criminal
prosecutions in federal court, as they had in the colonies and
continued to a certain extent to do in the states. n82 When
Congress under the 1789 Judiciary Act established the office of
district attorney, it implicitly vested the district attorneys with
exclusive authority to prosecute all federal crimes within
their jurisdiction. n83
Nonetheless, private citizens
helped initiate prosecutions by contacting the grand jury and
attempting to persuade it to issue presentments against suspects.
More commonly, judges on their own volition exhorted grand juries to
investigate certain conduct or to issue presentments against
particular individuals. n84 Members of the grand jury could share
with other members any evidence of crime that came to their
attention. n85 Although individuals or judges were also free to
present evidence of wrongdoing to the district attorneys, they
retained the discretion to bypass the executive branch at this early
stage of the criminal process and contact the grand jury directly.
An early opinion by Attorney
General Bradford indicates that the colonial practice of
privately-initiated prosecutions continued at [*294] least for a
brief period under the Constitution. n86 Bradford responded to a
request made by the Secretary of State on behalf of the British
consul stationed in Norfolk, Virginia. n87 Apparently, a crowd had
gathered outside the consul's residence in early 1794, insulting him
and demanding that he deliver individuals within the residence to
the crowd, presumably because the crowd believed that the
individuals had committed various criminal violations. n88 The
district attorney declined to prosecute members of the crowd on the
ground that violence perpetrated upon a consul did not constitute a
federal crime. n89
Despite agreeing with the
district attorney that federal prosecution was not warranted, the
Attorney General apprised the Secretary of State that an avenue of
redress was still available to the consul. Attorney General
Bradford stated that:
[I]f the party injured is
advised or believes that the federal courts are competent to sustain
the prosecution, I conceive he ought not to be concluded by my
opinion or that of the district attorney. If he desires it, he
ought to have access to the grand jury with his witnesses; and if
the grand jury will take it upon themselves to present the
offense in that court, it will be the duty of the district attorney
to reduce the presentment into form, and the point in controversy
will thus be put in a train for judicial determination. n90
The Attorney General thus
plainly believed that private citizens could, in effect, lobby the
grand jury, even if the Executive had already determined not to
press charges. n91
Instead of contacting the grand
jury directly, private citizens could appear before a federal or
state judicial official and swear out a complaint against a
suspected criminal. The magistrate was empowered to order the
defendant incarcerated pending further proceedings before a grand
jury. Since there was no federal police force and there were so few
district attorneys, this direct involvement of private citizens was
important to effective law [*295] enforcement. n92
The proceedings in United
States v. Skinner n93 are illustrative. Upon application of a
private citizen, Justice Livingston issued warrants against three
suspects for violation of the Neutrality Act. n94 This Act
proscribed, in part, outfitting ships with the intent of employing
those ships against foreign nations with whom the United States was
at peace. n95 The Act set criminal penalties and included a qui
tam provision providing that, upon conviction, the ships would be
Counsel for the defendants moved
in part that their clients be released on the ground that the
prosecution had been commenced without direction from the
government. n97 Private counsel for the informer argued that the
involvement of the district attorney was not needed, and the court
agreed in emphatic terms:
[N]o instructions were necessary
on the part of the president, or any other officer of government, to
justify the issuing a warrant for the violation of this or any other
law. . . . Nor was it necessary that the application for a warrant
should be made by the district attorney, as any individual might
complain of the infraction of a law, and he considered it his duty
to award a warrant whenever complaint was made to him on oath of a
crime's being committed, whether such warrant were applied for by
the district attorney or any other person. n98
Prosecutions were thus launched
by private initiative, and private citizens could participate in the
legal process even after the arrest. n99
Despite the involvement of private citizens at the initial phase of
criminal prosecutions, district attorneys apparently retained the
discretion not to act on presentments brought by grand juries.
n100 Public prosecutors on numerous occasions dropped prosecutions
for any number of reasons, whether for reasons of strategy, legal
judgment, or politics. n101 As Chief Justice John Marshall noted,
"[t]he usage in this country has been, to pass over, unnoticed,
presentments on which the [district] attorney does not think it
proper to institute proceedings." n102 The case in Hill
itself arose out of the district attorney's issuance of a series of
n103 Thus, while individuals played a role in starting the
prosecution process, they did not control the prosecutions once
b. Qui tam actions
In addition to initiating
criminal prosecutions, private citizens also indirectly participated
in enforcing the criminal law through civil qui tam actions. Within
the first decade after the Constitution was ratified, Congress
enacted approximately ten qui tam provisions authorizing individuals
to sue under criminal statutes to help enforce the law. n104 For
example, under a regulatory act passed in [*297] 1791, Congress
specified duties on liquor imported from abroad as well as on that
manufactured domestically. The law made criminal the willful
failure to pay the duties and set a range of penalties and
forfeitures correspondingly. Congress further provided that:
One half of all penalties and
forfeitures incurred by virtue of this act shall be for the benefit
of the person or persons who shall make a seizure, or shall first
discover the matter. . . . And any such penalty and forfeiture
shall be recoverable with costs of suit, by action of debt, in the
name of the person or persons entitled thereto, or by information,
in the name of the United States of America; and it shall be the
duty of the attorney of the district wherein any such penalty or
forfeiture may have been incurred, upon application to him, to
institute or bring such information accordingly. n105
Thus, as was relatively typical,
Congress provided what we would now consider to be both civil and
criminal penalties for the same conduct, and authorized private
citizens to bring defendants to justice "by action of debt."
n106 Moreover, the district attorney, upon receiving evidence of a
criminal violation, was not authorized to use independent discretion
in determining whether to bring a criminal action.
Through the qui tam actions,
private citizens helped enforce the criminal laws. Such actions
were long considered quasi-criminal. Indeed, during the nineteenth
and early twentieth centuries, civil qui tam actions represented the
functional equivalent of criminal prosecution, and initiation of a
qui tam action probably precluded the executive branch from
initiating its own criminal prosecution for [*298] the same
The Supreme Court first
addressed the nature of "civil" qui tam actions in Adams,
qui tam v. Woods. n108 The question raised was whether the
two-year statute of limitations prescribed for all criminal
prosecutions applied to a qui tam action. n109 The plaintiff had
sued the defendant under a criminal provision which made it unlawful
for any individual to carry on the slave trade from the United
States to a foreign nation. n110 The plaintiff argued that,
because the qui tam suit was a civil action, the two-year statute of
limitations was inapplicable. The Supreme Court rejected that
argument, reasoning that the statute protected individuals from
punishment, no matter whether by the government in a criminal
prosecution, or by an individual through a "penal" qui tam
civil action. Chief Justice Marshall noted that:
[A]lmost every fine or
forfeiture under a penal statute may be recovered by an action of
debt, as well as by information; and to declare that the information
was barred, while the action of debt was left without limitation,
would be to attribute a capriciousness on this subject to the
legislature, which could not be accounted for. n111
Courts during the ensuing
century also viewed qui tam actions as criminal for purposes of
applying the fifth amendment privilege against self-incrimination.
For example, in Newgold v. American Electrical Novelty & Mfg.
Co., n112 the plaintiff moved to compel the defendant to
produce his books and papers in order to demonstrate certain alleged
patent infringements. The court, however, denied the motion, ruling
that compelled production in the qui tam setting -- unlike in a
civil context -- would violate the defendant's privilege against
self-incrimination. n113 The court noted that the qui tam
provision [*299] at stake "not only describes the recovery as
a penalty, but omits altogether any special reference to any private
injury to the patentee, [and] seems to contemplate only the deceit
of the public and the public wrong." n114
Similarly, courts also construed
qui tam actions to require plaintiffs to prove liability under the
"beyond a reasonable doubt" standard of proof reserved for
criminal actions. n115 In United States v. Shapleigh n116
the government had sued under the False Claims Act to recover for
the defendant's alleged overcharge of merchandise to the United
States Army. The court acknowledged that "[i]n controversies
of a civil nature the purpose is generally to obtain the
determination of some rights of person or property, or to recover
compensation for some injury." n117 But in qui tam actions,
the court continued, "the government enacts a statute which
provides that a case in its nature criminal, whose purpose is
punishment . . . and whose successful prosecution disgraces the
defendant, and forfeits his property to the state as a punishment
for crime," is civil in form. The court concluded that the
form should not be controlling, for "[e]very consideration
which induced the courts to establish the rule that the prosecutor
must prove the crime charged beyond a reasonable doubt . . . demands
that this rule be applied [in the qui tam setting]." n118
[*300] Because qui tam actions
historically were viewed as criminal or quasi-criminal, Congress, by
authorizing such actions, determined that private individuals could
don the mantle of a public prosecutor. To a substantial extent,
those proceedings were treated as criminal for purposes of statutes
of limitation, evidentiary rulings, and the relevant standard of
proof. n119 In the proceedings, private individuals represented
the United States in construing the reach and import of the relevant
criminal provisions, in selecting the appropriate penalty, and in
arguing any jurisdictional or procedural questions which arose in
the case. By shaping precedents, as well as by litigating specific
cases, individuals through qui tam actions unquestionably
participated in setting federal criminal law policy.
The significant role afforded
private citizens in law enforcement looms larger when considering
that initiation of a qui tam action, at least during the late
nineteenth and early twentieth centuries, n120 likely precluded a
subsequent criminal action based upon the same conduct. In that
period, the Supreme Court held in a series of cases that, after
institution of criminal proceedings, double jeopardy precluded a
defendant from being sued for what we would consider today civil
penalties. In United States v. Chouteau, n121 for example,
the government had sued a distiller for defrauding the government of
tax revenues under Rev. Stat. 3303, after settling a prior criminal
prosecution. The Supreme Court held that the government could not
proceed with the civil suit:
Admitting that the penalty may
be recovered in a civil action, as well as by a criminal
prosecution, it is still as a punishment for the infraction of the
law. The term "penalty" involves the idea of punishment,
and its character is not changed by the mode in which it is
inflicted, whether by civil actions or a criminal prosecution.
Only one suit for penalties
could therefore be instituted, irrespective of its form, and the
sequence of the suits was irrelevant. n123
Because civil qui tam actions were viewed as "penal,"
institution of a qui tam action apparently precluded a later
criminal action. In the qui tam setting, the court in Shapleigh
[W]here provision is made by
statute for the punishment of an offense by fine or imprisonment,
and also for the recovery of a penalty for the same offense by a
civil suit, a trial and judgment of conviction or acquittal in the
criminal proceeding is a bar to the civil suit, and a trial and
judgment for the plaintiff or defendant in the civil suit is a bar
to the criminal proceeding. n124
The qui tam action thus was
dispositive of any subsequent criminal proceeding. n125 Because
the qui tam action, like a criminal prosecution, was brought on
behalf of the United States, and because the two actions were nearly
identical in terms of penalty prescribed, statutes of limitation,
evidentiary considerations, and burden of proof, the preclusive
effect of one on the other seems logical. n126 Such was the result
in at least some state courts. n127 Therefore, by authorizing
civil qui tam actions in the past, n128 Congress not merely
[*302] supplemented but also to some extent supplanted the
Executive's role in enforcing criminal provisions.
Nor could the government
intervene to take charge of the civil qui tam action once filed.
The court in United States v. Griswold articulated the
conventional view that "although the United States is the
plaintiff, [the private plaintiff] is its authorized representative,
and not the district attorney, who is not authorized or required to
act or interfere in the matter, otherwise than as expressly provided
by the statute." n129 By authorizing civil qui tam actions,
therefore, Congress partially displaced executive authority over
enforcing criminal statutes. n130
Congress thus has long acted
affirmatively to circumscribe the Executive's overall authority over
criminal law enforcement. In authorizing civil qui tam actions,
Congress limited the Executive's ability not only to control all law
enforcement, but even to initiate its own criminal prosecution for
the same conduct. As with contemporary citizen suits, n131
Congress determined that private enforcement was needed to
supplement executive branch oversight. Congress clearly has limited
overall executive control in experimenting with other ways to ensure
effective criminal law enforcement. n132
[*303] In accordance with the
historical tradition, therefore, Congress could vest in private
citizens the power to trigger the criminal investigation of
high-ranking officials within the executive branch. Information
gathered by private citizens could provide grounds for appointment
of an independent counsel. Alternatively, by authorizing a qui tam
action, Congress could permit private citizens to sue the government
officials to collect penalties incurred because of misfeasance in
office. The history of involvement by private parties in federal
criminal prosecutions lends considerable support to the result
reached in the independent counsel case.
C. Prosecutorial and
Investigative Functions Vested in State Officials
The first Congresses feared that
exclusive reliance upon federal law enforcement machinery would not
suffice to enforce the penal laws of the nation. In addition to
affording individuals significant enforcement responsibility,
Congress vested jurisdiction in state courts over actions seeking
penalties and forfeitures, granted concurrent jurisdiction to state
courts over some criminal actions, and assigned state officials
auxiliary law enforcement tasks. Thus, Congress assigned law
enforcement responsibility to state officials who were far removed
from control of the executive branch.
Initially, Congress vested
district courts with the jurisdiction "exclusively of the
courts of the several States" over all crimes and offenses
"that shall be cognizable under the authority of the United
States." n133 The Act further vested the circuit courts with
concurrent jurisdiction over the same criminal offenses. n134 At
the time, Federalists apparently wished to preserve as much
authority as possible for the national government, but they as well
as anti-Federalists agreed that jurisdiction over federal offenses
did not have to be vested exclusively in federal courts. n135
Congress soon determined that
including state courts in its grant of jurisdiction over penal
offenses would aid law enforcement efforts. In 1794, for example,
Congress provided in the Carriage Tax [*304] Act that all fines,
penalties, and forfeitures might be sought "before any
magistrate or state court, having competent jurisdiction."
n136 A similar jurisdictional provision was included in the License
Tax on Wines and Spirit Act. n137 Also in 1794, Congress vested in
state courts jurisdiction not only over qui tam actions but also
over "all suits, actions, and causes of action" arising
out of the laws for collecting revenue upon stills and spirits
distilled in the United States accruing more than fifty miles from
the nearest federal district court. n138 Other penal provisions
could be enforced similarly in the state courts. n139
As discussed previously, actions
for penalties and fines were viewed largely as criminal in those
years; indeed, some of the provisions might still be viewed as
criminal today. The decisions whether to sue and what punishments
to seek remained in the discretion of individuals outside the
Executive's control. Vesting such jurisdiction in state courts made
the executive branch, to a certain extent, dependent upon state
officials in executing federal laws. State magistrates, judges, and
juries all played integral parts in upholding the efficacy of the
enforcement scheme. Whatever modest influence the Executive could
wield over federal judges, who had been appointed by the President
and remained subject to congressional oversight, certainly did not
exist at the state level. Indeed, some members of Congress objected
to granting state courts jurisdiction over penal actions for just
that reason. n140
Furthermore, Congress assigned
state officials specific law enforcement tasks as well as
authorizing jurisdiction in their courts. Congress in 1806 and in
1808 granted to certain county courts in New York and Pennsylvania
"cognizance of all complaints and prosecutions for fines,
penalties and forfeitures arising under the United States revenue
laws," including the power "to exercise all and every
power in the cases of a criminal nature, cognizable before them . .
. for the purpose of obtaining a mitigation or remission of any
fine, [*305] penalty or forfeiture." n141 Thus, Congress
vested the state courts with the authority not only to preside over
federal penal actions, but also to exercise discretion in
recommending to the Secretary of the Treasury whether or not federal
law enforcement would best be served by remitting particular
punishments. Accordingly, some federal criminal law enforcement
decisions were largely dependent upon the discretion exercised by
state officials. In vesting such jurisdiction and authority in
state courts, Congress followed the tradition first adopted under
the Articles of Confederation. n142
Congress vested other auxiliary
law enforcement duties directly in state officials. Under the
Fugitive Slave Act of 1793, n143 Congress directed state
magistrates to arrest alleged fugitives, and then upon a proper
showing, to issue a certificate to permit removing the slaves from
the jurisdiction. n144 Under the Alien Enemy Act of 1798, n145
the state courts were empowered to direct the apprehension of aliens
and to order their removal after a hearing. n146 State officials
were also given the power to arrest deserting seamen. n147
Although the tasks required by Congress cannot be characterized as
prosecution, they were certainly related to criminal law
enforcement. n148 Congress directed that state officials could
arrest those suspected of violating federal law, and then determine
whether or not to deprive the individuals of freedom through either
deportation or a remand to servitude.
In addition, Congress also
vested jurisdiction in state courts to [*306] hear at least some
criminal prosecutions. Under the Post Office Act of 1799, Congress
All causes of action arising
under this act may be sued, and all offenders against this act may
be prosecuted, before the justices of the peace, magistrates, and
other judicial courts of the several states . . . and such justices,
magistrates, or judiciary shall take cognizance thereof, and proceed
to judgment and execution as in other cases. n149
Far from fearing loss of
control, the Postmaster General welcomed the measure, explaining
that vesting jurisdiction in state courts was necessary "to
prosecute at as little expense to the public and individuals as can
be conveniently done." n150 Indeed, the provision in the
postal laws for concurrent jurisdiction over some crimes remained in
force until 1960. n151
Although Congress was silent as
to whether the criminal cases were to be tried by a federal or state
prosecutor, at least some prosecutions were initiated and carried
out by state officials. For instance, in State v. Wells,
n152 the defendant challenged an indictment in state court based
upon his violation of the postal laws. He contended in part that
Congress could not constitutionally assign jurisdiction over
criminal matters to the state courts. Although the trial court was
sympathetic to the defendant's claims, the appellate court reversed,
holding that "[a]n offense against the laws of the United
States is an offense against the laws of South Carolina; and she has
the right to punish it." n153 Enforcement of the federal laws
was thus made dependent upon individuals who in no way were under
the control of the President.
To be sure, as the federal
government continued to grow, many [*307] who had first championed
concurrent jurisdiction as a means of checking the power of the
federal judiciary began to fear federal encroachment upon the
independence of the states. n154 State courts increasingly refused
to exercise jurisdiction over federal crimes as well as over federal
penal statutes. n155 Such refusals to accept jurisdiction,
however, stemmed not from any concern for diluting the executive
branch's control over criminal prosecution, but rather from the
perceived intrusion into state sovereignty. In general, state
judges, as well as some federal judges, n156 believed that no
juristic entity could punish for criminal acts threatening another
entity's sovereignty. Some state courts in the first half of the
nineteenth century acted on this belief not only by declining
jurisdiction over penal actions brought under federal laws, but also
by refusing to undertake some ancillary law enforcement duties
prescribed by Congress. n157
A series of Supreme Court
decisions starting at the turn of the century rejected the notion of
inviolable sovereignties. The Court upheld the right of Congress to
provide for federal bankruptcy proceedings in state courts (and the
concomitant authority of state courts to entertain such
jurisdiction), n158 to direct that federal officials be tried for
state crimes in federal courts, n159 to punish state officials for
their failure to discharge duties prescribed by Congress, n160 and
to authorize federal causes of action to be heard in state court,
n161 even if they were penal in [*308] nature. n162 In light of
these decisions, the jurisprudential obstacle blocking Congress from
authorizing state officials to prosecute their citizens for
violation of federal laws was removed.
Although Congress has not
recently provided for concurrent jurisdiction over criminal
offenses, n163 it achieved substantially the same objective under
the Volstead Act n164 by authorizing state officials to sue in
equity on behalf of the United States in order to restrain conduct
made criminal by that Act. Thus, state officials exercised the
discretion to determine what conduct fell under the federal criminal
laws and when to sue for violations of those criminal laws.
Moreover, state officials at times brought state criminal charges
against defendants who continued a course of unlawful conduct.
n165 State officials acted as proxies for executive branch officials
in enforcing the prohibition laws. n166 Congress presumably could
[*309] vest state officials with more direct criminal
Once again, the historical
examples do not illustrate who within the federal government can be
charged with the responsibility to enforce the criminal laws. These
examples do show, however, that significant law enforcement
responsibilities have at times been discharged by state officials
immune from close executive branch supervision. State officials
have wielded influence in determining when to arrest individuals
suspected of violating federal laws, when to recommend mitigation of
a punishment otherwise due under federal law, and even when to
prosecute. The historical examples suggest that some responsibility
to enforce the Ethics in Government Act, whether through direct
criminal actions or suits in equity, could be vested in the state
judicial system, outside the direct control of the Executive.
Examining prior congressional
enactments concerning criminal law enforcement demonstrates that
Congress has long influenced and conditioned the Executive's
constitutional responsibility to enforce the criminal laws.
Congressional dispersal of supervisory authority over criminal laws,
and congressional authorization for private individuals and state
officials to play a prominent role in criminal law enforcement are
ample testament to Congress' power to help shape criminal law
enforcement. Historical support for the view that criminal law
enforcement constitutes a "core" or exclusive executive
power is thus scant.
Viewed through a historical
lens, criminal law enforcement does not lie at the end of the
continuum marking the Executive's greatest power in relation to the
coordinate branches of government. Rather, Congress possesses
considerable discretion in shaping and guiding the Executive's
enforcement of the criminal laws. The Ethics in Government Act, to
the extent of assigning discrete prosecutorial responsibility to an
officer somewhat independent of the President, appears consistent
with historical precedent.
Moreover, the balance of power
between Congress and the Executive has unquestionably shifted in the
two hundred years since the 1789 Judiciary Act. If Congress could,
consistent with the separation of powers doctrine, exercise such
significant authority in criminal law enforcement in the early years
of the republic when the Executive was comparatively weak, n168
then its recent exercise of discretion [*310] in granting the
independent counsel a measure of statutory tenure seems
unobjectionable, at least from a historical perspective. Although
granting all prosecutorial authority to officers independent of the
President's control might disrupt the balance among the branches,
n169 the limited measure adopted by Congress in the Ethics Act
comports with the place historically occupied by criminal law
enforcement on the continuum marking the Executive's powers.
As a practical matter, the
Executive today enjoys near total control over federal criminal law
enforcement, with the exception perhaps of the investigations and
prosecutions covered in the Ethics in Government Act. n170 The
increase in executive control over criminal law enforcement probably
stems from the dramatic expansion of both federal crime and the
sophistication of criminals engaged in such conduct. n171 Congress
has therefore legislated an administrative structure and provided
the resources to enable the Executive to develop a strong,
centralized arm for enforcing the criminal laws. Unlike its
counterparts in the first years of the republic, therefore, recent
Congresses willingly have granted increased powers to the Executive
over federal criminal law enforcement.
With the perceived need to
increase centralization of criminal law enforcement, Congress has
drastically reduced the role of private citizens in enforcing the
criminal laws. Non-governmental personnel can no longer present
evidence directly to the grand jury and are unlikely to do so
indirectly by filing a complaint with a magistrate. Moreover,
Congress has cut back on the availability of qui tam actions and
those that exist do not preclude future criminal actions brought by
the federal government. Even then, some civil qui tam actions are
subject to executive branch control. n172
[*311] To augment the
centralization, Congress has also reduced the role assigned to state
courts and state officials. Congress has withdrawn the jurisdiction
previously vested in state courts over federal crimes, and it has
also greatly restricted the auxiliary law enforcement tasks assigned
to state officials. Congress has concurred with the Executive that,
in many contexts, state officials only inefficiently aid in
enforcing federal criminal statutes. Thus, Congress' present
agreement with the Executive on effective criminal law enforcement
strategy masks the historical conflicts that have taken place.
In turn, the enactment of
broader criminal provisions has fostered increased sensitivity to
notions of individual justice. The expanded breadth of federal
criminal legislation today subjects more individuals to potential
federal prosecution and thereby calls for greater exercise of
prosecutorial discretion. n173 Reinstitution of a broad scheme of
privately-initiated prosecutions (or quasi-criminal qui tam actions)
would therefore cast a wide net and could well result in less
even-handed enforcement of the law, permitting private motives to
dominate instead of what one hopes is dispassionate professional
judgment. n174 Furthermore, allowing prosecution by government
officials who are not subject to close supervision gives rise to
similar concern over arbitrary and uneven enforcement of the law.
n175 Unified executive control over lawmaking may promote fairness
for the individual defendant.
[*312] The increased executive
control over criminal law enforcement may therefore have stemmed
from the tacit concurrence of all three branches of government.
Congress, for its part, has strengthened the Executive's hand in its
efforts to combat crime and to ensure uniform law enforcement. And,
in some contexts, courts have augmented the Executive's authority in
criminal law enforcement to promote unified enforcement efforts at
the expense of individual involvement in criminal prosecutions.
Such enhanced executive control
may represent sound policy grounded in concern for both effective
and fair criminal law enforcement. But sage policy should not be
confused with constitutional mandate. Congress, at least
historically, has possessed the authority to shape executive
discretion in criminal law enforcement matters in various ways,
including designation of the personnel who are to exercise federal
law enforcement responsibility. While criminal law enforcement
should perhaps remain under the President's direct control, there is
little historical support for the effort to transform that policy
into a constitutional norm.
Thus, a look to history sheds
new light on the Supreme Court's recent decision in Morrison v.
Olson, providing support for the Court's unstated premise that
criminal law enforcement is not an exclusive function of the
executive branch. That conclusion, oddly enough, suggests that the
independent counsel decision may have a more limited impact than
might otherwise be imagined. Although the Supreme Court has
decisively and, in my view, correctly decided where criminal law
enforcement falls on the continuum marking the Executive's powers,
it has yet to decide whether Congress can similarly circumscribe the
Executive's authority over functions such as the conduct of foreign
relations that rest more fully in the Executive's control.
related research and practice materials, see the following legal
LawThe PresidencyForeign AffairsCriminal Law & ProcedureCriminal
OffensesMiscellaneous OffensesAbuse of Public OfficeIllegal
n1. 108 S. Ct. 2597 (1988).
n2. Ethics in Government Act of
1978, Pub. L. No. 95-521, 92 Stat. 1867 (codified as amended in
scattered sections of 28 U.S.C.) (providing for appointment of a
special prosecutor to investigate, and if appropriate, prosecute
certain high ranking government officials for violations of federal
criminal laws). The Ethics in Government Act has twice been
reenacted with amendments. See Ethics in Government Act
Amendments of 1982, Pub. L. No. 97-409, 96 Stat. 2039; Ethics in
Government Act Amendments of 1986, Pub. L. No. 100-191, 101 Stat.
n3. Morrison v. Olson, 108 S.
Ct. 2597, 2621 (1988) (recognizing that the Attorney General "is
not allowed to appoint the individual of his choice [,] . . . does
not determine the counsel's jurisdiction, and his power to remove a
counsel is limited").
n5. In undertaking a balancing
test, the Court stressed that the President, through the Attorney
General, retained the power to trigger the independent counsel's
appointment, to help define the independent counsel's jurisdiction,
and to dismiss the independent counsel for good cause. Id.
n6. Ethics in Government Act, 28
U.S.C. § 596(a) (1982 & Supp. IV 1986) (providing for
removal of independent counsel from office by the Attorney General
only for "good cause").
n7. U.S. CONST. art. II, § 3.
n8. Morrison, 108 S. Ct. at
2625-31 (Scalia, J., dissenting). Morrison represents
the first case since Myers v. United States, 272 U.S. 52 (1926),
in which the Court addressed a presidential assertion of the right
to remove at will an officer who unquestionably discharged "purely"
executive authority. Compare Wiener v. United States, 357
U.S. 349 (1958) (upholding limitation on President's ability to
remove official exercising quasi-judicial functions); Humphrey's
Executor v. United States, 295 U.S. 602 (1935) (upholding
statutory limitation on President's ability to remove FTC
Commissioner on ground that his functions were quasi-judicial and
quasi-legislative). All parties agreed that the independent counsel
performed purely executive functions.
n9. In re Sealed Case, 838
F.2d 476, 500 (D.C. Cir.) rev'd sub nom. Morrison v.
Olson, 108 s. Ct. 2597 (1988).
n10. Morrison, 108 S. Ct. at
2626 (Scalia, J., dissenting) (finding that criminal prosecution
and investigation represents purely executive power); id. at 2627
(holding that Ethics Act and thus independent counsel "deprives
the president of exclusive control over that quintessentially
n11. Id. at 2629
(emphasis in original).
n12. See, e.g., Heckler
v. Chaney, 470 U.S. 821, 832 (1985) (holding that certain
aspects of criminal law enforcement "have long been regarded as
the special province of the Executive Branch"); Buckley v.
Valeo, 424 U.S. 1, 285 (1976) (White, J., concurring in part and
dissenting in part) (stating "I would be much more concerned if
Congress purported to usurp the function of law enforcement").
n13. See, e.g., Community
for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir.
1986) (holding that power to decide to investigate and to
prosecute "lies at the core of the Executive's duty to see to
the faithful execution of the laws"); United States v.
Cowan, 524 F.2d 504 (5th Cir. 1975) (reversing district court's
appointment of special prosecutor), cert. denied, 425
U.S. 971 (1976); Connecticut Action Now, Inc. v. Roberts
Plating Co., 457 F.2d 81, 86-88 (2d Cir. 1972) (declining to
recognize qui tam action in part because of tradition of Executive's
total control over federal prosecutions); Newman v. United
States, 382 F.2d 479, 480 (D.C. Cir. 1967) (stating that "[f]ew
subjects are less adapted to judicial review than the exercise by
the Executive of his discretion in deciding when and whether to
institute criminal proceedings, or what precise charge shall be
made, or whether to dismiss a proceeding once brought"); United
States v. Cox, 342 F.2d 167, 190 (5th Cir.) (opinion of Wisdom,
J.) (finding that "[t]he prosecution of offenses against the
United States is an executive function within the exclusive
prerogative of the Attorney General . . ."), cert. denied,
381 U.S. 935 (1965).
Indeed, courts have granted the
Executive virtually unreviewable discretion in deciding whom to
prosecute and what criminal charges to seek. Heckler v. Chaney,
470 U.S. 821, 832 (1985) (holding that, even in the civil
context, an executive agency's decision not to take enforcement
action is presumed immune from judicial review); United States v.
Alessio, 528 F.2d 1079, 1081-82 (9th Cir.) (holding that
Executive's power to determine which cases will be prosecuted is
rooted in Executive's constitutional duty to take care that laws of
United States are faithfully executed), cert. denied, 426
U.S. 948 (1976). But see Smith v. Meese, 821 F.2d
1484, 1490-91 (11th Cir. 1987) (permitting judicial review of
pre-indictment challenge to criminal investigation, despite
asserting that "[t]he prosecutorial function, and the
discretion that accompanies it, is thus committed by the
Constitution to the executive, and the judicial branch's deference
to the executive on prosecutorial decision-making is grounded in the
constitutional separation of powers").
n14. Compare In Re Sealed
Case, 838 F.2d 476, 500 (D.C. Cir. 1987) (stating that criminal
law enforcement is "core" function of Executive), rev'd
sub nom. Morrison v. Olson, 108 S. Ct. 2597 (1988) with
id. at 526-27 (Ginsburg, J., dissenting) (arguing that criminal
law enforcement is not core function of Executive and not comparable
to either President's role as Commander-in-Chief of the armed
forces, or his power to make treaties and grant pardons).
n15. Morrison v. Olson, 108
S. Ct. 2597, 2619 (1988).
n16. I will not address all of
the separation of powers problems posed by the independent counsel
statute. For example, I will discuss neither the Appointments
Clause question nor the problem raised by the supervisory power
vested in the special District of Columbia court. Rather, I will
focus on Congress' historical exercise of the authority to designate
the personnel who wield criminal law enforcement authority, even if
such personnel are shielded from the President's plenary removal
authority. For a more narrowly directed discussion of the unitary
executive issue, see Miller, Independent Agencies, 1986
SUP. CT. REV. 41 (1987) (defending expansive view of unitary
executive); Strauss, The Place of Agencies in Government:
Separation of Powers and the Fourth Branch, 84 COLUM. L. REV.
573 (1984) (analyzing relationship of Congress, President,
Supreme Court, and administrative agencies and concluding that more
circumscribed view of unitary executive is needed).
n17. See Morrison, 108 S. Ct.
at 2637 (Scalia, J., dissenting) (suggesting that, under
majority's analysis, an Assistant Secretary of State with
responsibility for one narrow area of foreign policy could be
insulated from firect presidential control).
n18. Humphrey's Executor v.
United States, 295 U.S. 602, 629 (1935) (holding that Congress
has authority to create independent administrative agencies that
operate free from direct executive control). Congress and the
courts might be unwilling to intrude significantly into the
Executive's control of criminal law enforcement for prudential
reasons. See infra text accompanying notes 170-76. And, of
course, the courts' authority to circumscribe the discretion of
executive officers charged with the responsibility to make
prosecutorial decisions is limited. See Heckler v.
Chaney, 470 U.S. 821, 832 (1985). Even if criminal and civil law
enforcement stand on the same constitutional footing, proponents of
a strong unitary executive might still disagree with the independent
counsel decision on the ground that federal officers exercising both
civil and criminal responsibilities must be subject to the plenary
removal authority of the President. See Miller, supra
note 16. That view, of course, would require invalidating much of
the administrative state.
n19. See infra note 24
and accompanying text.
n20. See, e.g., E.
CORWIN, THE PRESIDENT: OFFICE AND POWERS (rev. ed. 1984);
Chemerinsky, Controlling Inherent Presidential Power: Providing a
Framework for Judicial Review, 56 S. CAL. L. REV. 863 (1983)
(documenting Supreme Court interpretation of separation of powers);
Kurland, The Rise and Fall of the "Doctrine of Separation of
Powers", 85 MICH. L. REV. 592, 602-03 (1986)
(analyzing when President can act without constitutional or
statutory authority); see generally Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J.,
concurring) (discussing limitations on Executive's power).
n21. See generally
Kendall v. United States ex rel. Stokes, 37 U.S. 524, 563 (1838)
(holding that executive branch official is bound to perform certain
ministerial acts when, by writ of mandamus, court orders
performance); National Treasury Employees Union v. Nixon, 492
F.2d 587, 616 (D.C. Cir. 1974) (finding court has authority to
issue writ of mandamus to compel President's performance of
n22. See Immigration &
Naturalization Service v. Chadha, 462 U.S. 919, 924 (1983)
(citing with approval requirement of Attorney General to report to
Congress certain actions under provisions of Immigration and
Nationality Act, 8 U.S.C. § 1254(c)(1) (1982 & Supp. IV
n23. Kendall, 37 U.S. at 563
(writ of mandamus issued by court to compel United States Postmaster
General to pay creditor sums due).
n24. The President's distinctive
authority in foreign affairs probably stems from the power to
receive ambassadors, U.S. CONST. art. II, § 3, from the power to
make treaties (subject to the Senate's consent), id. § 2,
and from his status as Commander-In-Chief of the Armed Forces, id.
See Dames & Moore v. Regan, 453 U.S. 654, 677 (1981)
(recognizing broad authority for President to conduct international
relations); United States v. Curtiss-Wright Export Corp., 299
U.S. 304, 315-21 (1936) (holding powers of federal government
over foreign or external affairs differ in nature and origin from
powers over domestic or internal affairs); Sanchez-Espinoza v.
Reagan, 770 F.2d 202 (D.C. Cir. 1985) (holding nonjusticiable
challenge to government aid supporting the Contras); see
generally C. CRABB & P. HOLT, INVITATION TO STRUGGLE:
CONGRESS, THE PRESIDENT AND FOREIGN POLICY (1980); L. HENKIN,
FOREIGN AFFAIRS AND THE CONSTITUTION (1972).
The President's pardon power
lies toward that end of the continuum as well, brooking little
congressional interference. See United States v. Klein,
80 U.S. (13 Wall.) 128, 147 (1872) (holding executive branch
alone has "power of pardon"; see generally W.
HUMBERT, THE PARDONING POWER OF THE PRESIDENT (1941).
n25. Even in the foreign affairs
arena, the Supreme Court has long held that Congress can limit the
President's powers by establishing procedures to channel and confine
exercise of such powers. Little v. Barreme, 6 U.S. (2 Cranch)
170, 177-79 (1804) (President must abide by Congress'
specification of when vessels trading with the enemy can be seized
on the high seas). See also Brown v. United States, 12
U.S. (8 Cranch) 110, 125-29 (1814) (countermanding Executive's
order confiscating property held by aliens during War of 1812). The
exercise of some authority, however, is immune from judicial review.
n26. For a discussion of why
some balancing is appropriate in this context, see Krent, Separating
the Strands in Separation of Powers Controversies, 74 VA. L.
REV. 1253, 1316-19 (1988).
n27. For a discussion of the
Executive's limited powers under the Articles of Confederation, see
THE FEDERALIST NO. 21 (A. Hamilton) 138-39 (C. Rossiter ed. 1961);
E. SURRENCY, HISTORY OF THE FEDERAL COURTS 7-8 (1987); J. FISKE, THE
CRITICAL PERIOD OF AMERICAN HISTORY, 1783-1789 at 99 (1916); A.
MCLAUGHLIN, THE CONFEDERATION AND THE CONSTITUTION, 1783-1789 at
36-47 (1962). For a discussion of criminal law enforcement
authority in the colonies and states, see J. JACOBY, THE AMERICAN
PROSECUTOR: A SEARCH FOR IDENTITY (1980); Robinson, Private
Prosecutors in Criminal Cases, 4 WAKE FOREST L. REV. 300
(1908); Note, The History and Development of Qui Tam,
1972 WASH. U.L.Q. 81 (1972).
Even in the colonies with public
prosecutors, grand juries and private citizens enjoyed much more
active roles in criminal law enforcement than they would under the
Constitution. For a discussion of the role of private citizens see
Robinson, supra. For a discussion of the broader role of
grand juries in overseeing executive branch conduct, see R.
YOUNGER, THE PEOPLE'S PANEL (1963). Indeed, law enforcement
officers in some states then as today are elected, and thus not
directly accountable to the state executive. See Report on the
Office of Att'y General 62-63, 105 (Nat'l Ass'n of Attys. Gen'l
1971); Note, Private Prosecution: A Remedy For District
Attorneys' Unwarranted Inaction, 65 YALE L.J. 209, 211
In the federal system, courts
from an early period allowed the Executive wide discretion in
deciding whom to prosecute and when to discontinue prosecution. See
generally Schwartz, Federal Criminal Jurisdiction and
Prosecutorial Discretion, 13 LAW & CONTEMP. PROBS. 64, 83
(1948); M. TACHAU, FEDERAL COURTS IN THE EARLY REPUBLIC (1978);
United States v. Hill, 26 F. Cas. 317 (C.C.D. Va. 1809) (No.
15,364); United States v. Morris, 26 F. Cas. 1337, 1348
(C.C.D.N.Y. 1822) (No. 15,816).
n28. Of course, the historical
record may be viewed by some as largely irrelevant to the
constitutional question facing the Court. Irrespective of the role
played by history in shaping constitutional law jurisprudence, the
perception that criminal law has always been a core executive
function helped form the basis for Justice Scalia's dissent. See
Morrison, 108 S. Ct. at 2626.
n29. The judiciary as well
shares overall responsibility for criminal law enforcement. Through
supervision of grand juries, through superintendence of pre-trial
proceedings, and through control over trials themselves, judges
wield unquestionable influence in criminal law enforcement. See,
e.g., FED. R. CRIM. P. 48 (recognizing judicial power to
dismiss indictments for want of prosecution). See generally
Beale, Reconsidering Supervisory Power in Criminal Cases:
Constitutional and Statutory Limits on the Authority of the Federal
Courts, 84 COLUM. L. REV. 1433 (1984) (discussing
judicial supervision of federal prosecutions).
n30. The judicial power to
supervise criminal law enforcement primarily stems from the
judiciary's authority to adjudicate cases and controversies under
Article III of the Constitution. Some control might also derive
from the fifth amendment's requirement of a grand jury.
n31. U.S. CONST. Art. II, § 2.
n32. The debates surrounding
enactment of the pardon clause, however, suggest that the Framers
did not envision total executive control over criminal prosecutions.
At several points in the debate, an amendment was suggested that
would have confined the President's exercise of the pardon power to
non-treasonous offenses. 2 M. FARRAND, THE RECORDS OF THE FEDERAL
CONVENTION OF 1787 at 564, 626-27 (1966 ed.). Some feared that the
President, through the pardon power, could insulate his own efforts
to seize dictatorial power. George Mason, for example, warned that
presidential exercise of the pardon power could be used to "screen
from punishment those whom he [the president] had secretly
instigated to commit the crime and thereby prevent a discovery of
his own guilt." Id. at 639. They evidently assumed that
the President could not have similarly shielded his treasonous
confederates from criminal prosecutions. For a general discussion
of the decision to vest the pardon power in the President, see W.
HUMBERT supra note 24, at 9-20.
n33. U.S. CONST. Art. II, § 3.
n34. Congress has long vested
civil enforcement functions in officers insulated from the
President's plenary removal authority. See, e.g., Humphrey's
Executor v. United States, 295 U.S. 602, 630 (1935) (Congress
may vest some control over enforcement of civil laws in independent
n35. During Jefferson's
administration, Congress defeated at least one attempt by the
President to expand the Executive's prerogatives in criminal law
enforcement. See Preyer, Jurisdiction to Punish: Federal
Authority, Federalism and the Common Law of Crimes in the Early
Republic, 4 LAW & HIST. REV. 223, 243 n.66 (1986)
(addressing Congress' refusal to accede to request by Jefferson for
authorization to suspend writ of habeas corpus). Furthermore, in
response to United States v. Hudson & Goodwin, 11 U.S. (7
Cranch) 32 (1812) (denying validity of federal prosecutions for
common law crimes), the Executive sought legislation from Congress
vesting it with wide discretion to indict individuals for common law
crimes, but Congress refused. 27 ANNALS OF CONG. 1768-70 (1814)
(introducing bill to amend judicial system of United States on which
action was postponed indefinitely). See D. HENDERSON,
CONGRESS, COURTS & CRIMINALS 29 (1985) (discussing common law
jurisdiction and federal courts). Justice Story decried the
Executive's inability to protect itself, and sought to persuade
Congress of the necessity to enact more criminal laws. 1 C. WARREN,
THE SUPREME COURT IN UNITED STATES HISTORY, 1789-1821 at 438-41
(1922) (criticizing Congress for lack of action with respect to
codifying common law crimes).
n36. Cf. United States
v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812)
(rejecting argument that prosecutions for common law crimes were
needed to enable national government "to preserve its own
existence and promote the end and object of its creation").
n37. In the wake of the 1800
election, for example, Congress declined to reenact the Sedition
Act. See Act of July 14, 1798; § 4, 1 Stat. 596, 597 (1798)
(establishing that Act was to expire on March 3, 1801).
n38. The Supreme Court in Hudson
concluded that courts lacked the power to mete punishment until
Congress "first ma[d]e an act a crime, affix[ed] a punishment
to it, and declar[ed] the court that shall have jurisdiction of the
offense." Id. at 34. See United States v.
Worrall, 2 U.S. (2 Dall.) 384, 395 (1798) (Chase, J.) ("if
[C]ongress had ever declared and defined the offense, without
prescribing a punishment, I should still have thought it improper to
exercise a discretion upon that part of the subject").
n39. See, e.g., U.S.C. §
2 (Supp. IV 1986) (jurisdictional authority of Coast Guard); 16
U.S.C. § 1a-6 (1982) (enforcement authority of National Park
Service); 39 U.S.C. § 404 (1982) (investigative authority of
n40. For instance, Congress has
forbidden the Attorney General to grant immunity in conducting the
preliminary investigation under the Ethics in Government Act, 28
U.S.C. § 592. Moreover, Congress has mandated that only the
Attorney General, or any Assistant Attorney General specially
designated by him or her, may authorize certain wiretaps. 18
U.S.C. § 2516 (1982 & Supp. IV 1986).
n41. The Supreme Court has
stated that Congress has full authority to declare an amnesty and
thereby immunize individuals from prosecution. Brown v. Walker,
161 U.S. 591, 601 (1896) (addressing congressional enactment
immunizing any individual testifying before the Interstate Commerce
Commission from prosecution stemming from the testimony provided to
the Commission). See also United States v. Tynen, 78 U.S.
(11 Wall.) 95 (1871) (dismissing indictment because of
subsequent congressional repeal of criminal enactment).
n42. Congress' control over the
purse strings similarly limits the Executive's authority in other
contexts as well. See generally Stith, Congress' Power of
the Purse, 97 YALE L.J. 1343, 1386-98 (1988).
n43. II J. STORY, COMMENTARIES
ON THE CONSTITUTION OF THE UNITED STATES § 1348, at 242 (3d ed.
1858). See THE FEDERALIST No. 24, at 157-58 (A. Hamilton)
(C. Rossiter ed. 1961).
The Supreme Court has long held
that the President cannot expend money to take care that the laws be
faithfully executed except pursuant to an appropriation from
Congress. Reeside v. Walker, 52 U.S. (11 How.) 271, 291 (1851)
(stating that "[n]o officer, however high, not even the
President . . . is empowered to pay the debts of the United States.
. . . [T]he difficulty in the way is the want of any appropriation
by Congress."); see Cincinnati Soap Co. v. United
States, 301 U.S. 308, 321 (1937) (stating that appropriations
provision "was intended as a restriction upon the disbursing
authority of the executive department."); Hart's Case, 16
Ct. Cl. 459, 484 (1880) ("the absolute control of the
moneys of the United States is in Congress, and Congress is
responsible for its exercise of this great power only to the
people"), aff'd, Hart v. United States, 118 U.S. 62
(1886). The President's authority is directly confined by the
appropriation which Congress sees fit to make.
n44. Anti-Deficiency Act, 31
U.S.C. § 1341 (1982 & Supp. IV 1986).
n45. Congress on occasion has
not been shy in wielding its appropriation power to influence
executive enforcement of the laws. For example, in Section 309 of
the Energy and Water Developments Appropriation Act, Pub. L. No.
100-202, 101 Stat. 1329-126 (1987), Congress prohibited the
Department of Energy and the Department of Justice from using any
funds for a period of ten months to "prosecute" or
"enforce any judgment" against specified persons subject
to a judgment entered in the Temporary Emergency Court of Appeals,
Citronelle-Mobile Gathering, Inc. v. herrington, 826 F.2d 16
(Temp. Emer. Ct. App.), cert. denied, 108 S. Ct. 327
(1987). See 133 CONG. REC. S16275-76 (daily ed. Nov. 13,
1987) (discussing intent behind provision) (remarks of Senator
Shelby). Congress objected to the Department of Energy's successful
efforts to recover restitution from corporate officials who had
overcharged customers in sales of oil and gas, ostensibly on the
ground that Congress disagreed with the executive branch's theory of
enforcing the law. Congress could in all likelihood exercise its
appropriation power as explicitly in the criminal context, and
indeed, it has accomplished the analogous objective by suspending
enforcement of the criminal laws. Cf. United States v.
Tynen, 78 U.S. (11 Wall.) 95 (1871).
n46. The first Congresses
declined to appropriate sufficient money to enable the Executive to
pursue extensive law enforcement measures. The Executive lacked the
manpower and resources to coordinate enforcement efforts
effectively. There was no Department of Justice, no FBI, nor in
fact any employee under the Attorney General's direction. Congress
authorized the Attorney General to receive only $ 1500 per year in
salary (as compared to $ 3,500 per year received by the Secretaries
of State and Treasury), and thus forced the Attorney General to
engage in private practice to make ends meet. See generally
A. LANGELLUTIG, THE DEPARTMENT OF JUSTICE OF THE UNITED STATES 3
(1927); Key, The Legal Work of the Federal Government, 25
VA. L. REV. 165, 176 (1938).
The first Attorney General,
Edmund Randolph, soon protested to the President that such
conditions made his work impossible to complete. He requested funds
to allow him to procure a clerk and to facilitate communication with
other government officials. Am. State Papers, Misc. I, 45, No. 25.
Although President Washington forwarded the requests to Congress,
Congress declined to respond. L. WHITE, THE FEDERALISTS 168 (1948);
Key, supra, at 176. President Madison made a similar request
of Congress some twenty years later with similar results. 1 J.
RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897 at
577-78 (1898); Key, supra, at 176. Only in 1818 did Congress
provide the Attorney General with a clerk. Act of April 20, 1818,
ch. 87, § 6, 3 Stat. 445, 447. Even then, Congress reduced the
clerk's salary in 1820 and apparently allowed the Attorney General
no contingent expenses for the next ten years. Key supra, at
176. Battles with Congress over funding have, of course, continued.
n47. See supra note 39.
n48. See Judiciary Act of
1789, ch. 20, § 27, 1 Stat. 73, 87; see generally L. WHITE,
supra note 46, at 411. Congress today has still vested state
officials with some authority in terms of arrest. 18 U.S.C. §
n49. Judiciary Act of 1789, ch.
20, § 27, 1 Stat. 73, 87.
n50. Id., § 35, 1 Stat.
n51. Congress in the 1789
Judiciary Act authorized the President to appoint in each district
"a meet person, learned in the law, to act as attorney-general
for the United States." Judiciary Act of 1789, ch. 20, § 35, 1
Stat. 73, 93.
n52. See generally L.
WHITE, supra note 46, at 164-66; Key, supra note 46,
at 175-76. Indeed, Congress did not vest jurisdiction in the
Supreme Court to entertain direct review of criminal actions in
capital cases until 1889. Act of Feb. 6, 1889, ch. 113, 25 Stat.
655, 656. Before that time, the Supreme Court heard criminal
matters only through habeas corpus or when there was a division of
opinion within the two-judge circuit court. Act of April 29, 1802,
ch. 31, § 1, 2 Stat. 156, 159-61. See generally VII C.
FAIRMAN, HISTORY OF THE SUPREME COURT, RECONSTRUCTION AND REVISION,
1864-1888 (PART II) at 269 (1987). Thus, during this time the
Attorney General could wield little influence in shaping
interpretation and application of the criminal laws. Id.
n53. Am. State Papers, Misc. I,
46, No. 26 (1791).
n54. L. WHITE, supra note
46, at 168.
n55. Id. at 408. Thus,
even the controversial attempted prosecution of Aaron Burr in
Kentucky apparently was launched by the district attorney without
any guidance from higher political officials. M. TACHAU, FEDERAL
COURTS IN THE EARLY REPUBLIC: KENTUCKY 1789-1816 at 140 (1978).
During the period of hostilities prior to the War of 1812, Secretary
of the Treasury Albert Gallatin complained on several occasions that
the district attorney in Massachusetts never returned his letters,
and the port collectors under Gallatin's control were forced to rely
on the services of private counsel. L. WHITE, THE JEFFERSONIANS
455-56 (1951) [hereinafter JEFFERSONIANS].
At times, of course, presidents
did show special interest in particular prosecutions. See, e.g.,
2 W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE
UNITED STATES 768-84 (1953); D. HENDERSON, supra note 35, at
198; L. LEVY, THE LEGACY OF SUPPRESSION 241-42 (1960); J. SMITH,
FREEDOM'S FETTERS 182-86 (1956). Nonetheless, even the President's
control over district attorneys, at least in the view of several
attorneys general, was not complete. 2 Op. Att'y Gen. 53 (1827)
(William Wirt) (setting bounds on orders that President can give
district attorney); 2 Op. Att'y Gen. 482, 488-89 (1831)
(Roger Taney) (stating that President can only rarely interfere with
district attorney's handling of cases).
n56. Act of March 3, 1797, ch.
20, § 1, 1 Stat. 512, 512.
n57. J. RICHARDSON, supra
note 46, at 577-78.
n58. Act of May 15, 1820, ch.
107, § 1, 3 Stat. 592, 592. Indeed, Attorney General Wirt under
President Monroe refused to respond to legal inquiries from the
district attorney's office because such duties lay outside his
statutory responsibilities. 1 Op. Att'y Gen. 608, 609-11
(1823). See also JEFFERSONIANS, supra note 55, at
n59. Even the Secretary of the
Treasury wielded only limited control over the district attorneys.
Attorney General Wirt commented that "[T]he Secretary of the
Treasury is not necessarily a lawyer by profession. . . . It could
never have been considered, therefore, as among the duties of that
officer, that he should instruct and direct the district attorneys
as to the mere technicalities of their profession. . . . [Imposing
such duties] would be . . . to confound and amalgamate duties which
are separated by our laws, and to shift to the Secretary of the
Treasury responsibilities which properly belong to the district
attorneys." 1 Op. Att'y Gen. 608, 611-12 (1823)
n60. Key, supra note 46,
at 178. The Solicitor had jurisdiction over most civil actions,
including suits for penalties and fines.
Creation of the new office of
Solicitor of the Treasury apparently arose out of two concerns:
first, that the Attorney General would not be an effective legal
officer if he needed to discharge too many administrative duties
(see H. LEARNED, THE PRESIDENT'S CABINET 174 (1912)); and
second, that if such an office were not created, the demand for a
new Home Department might have received greater congressional
support. Id. at 272.
n61. See 6 CONG. DEB. 323
(1830) (statement of Mr. McKinley) ("in no country was the Law
Department in so wretched a condition as in the United States").
n62. See id. at 324
(statement of Mr. Webster) (no "good would result from the
metamorphasis of the Attorney General into the head of a bureau").
n63. 2 J. RICHARDSON, MESSAGES
AND PAPERS OF THE PRESIDENTS 527 (1896).
n64. Key, supra note 46,
at 179-81. See National Commission on Law Observance and
Enforcement: Report on Prosecution at 8 (1931) [hereinafter
Report on Prosecution].
n65. See J.
RICHARDSON, supra note 63, at 13 (message of President Polk on
behalf of R. H. Gillet, Solicitor of the Treasury).
n66. Id.; A. LANGELLUTIG,
supra note 46, at 8, Report on Prosecution, supra note
64, at 8-9. Even then, Congress still chose to vest some
jurisdiction over criminal matters in the Department of the
Treasury. See 20 Op. Att'y Gen. 714, 715-16 (1894)
(referring to statute placing Department of the Treasury, rather
than the Department of Justice, in charge of criminal prosecutions
for revenue fraud).
n67. The Supreme Court has
recently adverted to the congressional power to disperse
decisionmaking responsibility, even as to criminal matters, within
the executive branch. United States v. Providence Journal, 108
S. Ct. 1502, 1509 n.9 (1988) (asserting that Congress may carve
out exceptions to Solicitor General's litigating authority in
Supreme Court). Indeed, Congress more routinely disperses authority
for enforcing federal criminal provisions by establishing
independent administrative agencies and vesting them with the
authority to restrain and prevent criminal violations. See infra
n68. See supra notes
n69. See generally 3 W.
BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 160; 1 J. STEPHEN, A
HISTORY OF THE CRIMINAL LAW OF ENGLAND 245 (1883).
n70. Cardenas, The Crime
Victim in the Prosecutorial Process, 9 HARV. J.L. & PUB.
POL'Y 357, 360 (1986); Goldstein, Defining the Role of the
Victim in Criminal Prosecution, 52 MISS. L.J. 515, 518
n71. Cardenas, supra note
70, at 367; Goldstein, supra note 70, at 521, 529-30.
n72. 3 W. BLACKSTONE, supra
note 69, at 160; Cardenas supra note 70, at 361.
n73. 3 W. BLACKSTONE, supra
note 69, at 160; Cardenas, supra note 70, at 360.
n74. The name "qui tam"
derives from the Latin phrase "qui tam pro domino rege quam
proseipson," which means "he who as much for the king as
n75. See J. JACOBY, supra
note 27, at 13; Note, supra note 27, at 93-97.
n76. Cardenas, supra note
70, at 368. The colonies were also influenced by the continental
heritage, particularly the Dutch "schout" and the French
public prosecutor. See Jacoby, supra, at 4.
n77. Cardenas, supra note
70, at 368; Note, The Outmoded Concept of Private Prosecution,
25 AM. U.L. REV. 754, 762-64 (1976).
n78. J. FISKE, supra note
27, at 99.
n79. For over a century
individuals have not been able to approach a grand jury directly,
but can at most file a complaint before a magistrate. See
United States v. Kilpatrick, 16 F. 765, 796 (W.D.N.C. 1883)
(prohibiting individuals from contacting grand jury directly); Grand
Jury Charge, 30 F. Cas. 992, 994 (C.C.D. Cal. 1872) (No. 18,
255). Such practice today is condemned and precluded by Rule 6
of the Federal Rules of Criminal Procedure, which provides that
Attorneys for the government,
the witness under examination, interpreters when needed and, for the
purpose of taking the evidence, a stenographer or operator of a
recording device may be present while the grand jury is in session,
but no person other than the jurors may be present while the grand
jury is deliberating or voting.
FED. R. CRIM. P. 6(d).
n80. Rule 3 of the Federal Rules
of Criminal Procedure provides that "[t]he complaint is a
written statement of the essential facts constituting the offense
charged. It shall be made upon oath before a magistrate." FED.
R. CRIM. P. 3. The rule does not specify whether private
citizens as well as law enforcement officers may appear before a
magistrate to swear out a complaint. At one time, it was assumed
that private citizens could avail themselves of this mechanism for
initiating a prosecution. See United States v. Pickard,
207 F.2d 472, 475 (9th Cir. 1953) (adverting in dictum to
privately initiated complaints); Ruth v. First Nat'l Bank of New
Jersey, 410 F. Supp. 1233, 1234 (D.N.J. 1976) ("Ruth, like
any individual having knowledge of an alleged criminal violation,
may present a complaint to a U.S. Magistrate under the criminal
The role for private citizens
has more recently been discouraged by the courts. See United
States ex rel. Savage v. Arnold, 403 F. Supp. 172, 174 (E.D. Pa.
1975) (stating that "rather than permit private complaints
to be filed, it has been suggested that such matters be referred to
the United States Attorney"); Brown v. Duggan, 329 F. Supp.
207, 210 (W.D. Pa. 1971) (providing that "[i]f
investigation is required, a complaint should be addressed to the
United States Attorney who is charged with the duty of investigating
bona fide criminal activity").
The prevailing trend at the
present appears to be to proscribe completely any involvement by
private citizens. See Barnes v. Smith, 654 F. Supp. 1244,
1247 (E.D. Mo. 1987) (stating "[t]he plaintiff . . . has
no right to swear out a criminal complaint."); United States
v. Bryson, 434 F. Supp. 986 (W.D. Okla. 1977) (holding "[t]he
Court would not accept for filing a complaint which had not been
authorized by the United States Attorney"); see also
Keenan v. McGrath, 328 F.2d 610-11 (1st Cir. 1964)
(commenting that allowing private criminal prosecutions would
provide a means to circumvent legal safeguards); United States v.
Panza, 381 F. Supp. 1133 (W.D. Pa. 1974) (holding that private
litigant may not institute criminal proceedings before magistrate).
The only support for the current view lies in the
proposition, apparently grounded in constitutional theory, that "the
prosecution of criminal actions in the federal courts is a matter
solely within the discretion of the Attorney General of the United
States and duly authorized United States Attorneys." Id. at
n81. Presentments differed from
indictments in that they represented the findings of the grand jury
itself, couched in the vernacular, without any involvement by the
district attorney. District attorneys would therefore customarily
reduce the presentment into the more arcane indictment form and
thereby bind the defendant for trial. See generally G.
EDWARDS, THE GRAND JURY 106-08 (1906); R. YOUNGER, THE PEOPLE'S
PANEL 1 (1963). By itself, the grand jury presentment was without
legal force. See United States v. Hill, 26 F. Cas. 315
(C.C.D. Va. 1809) (No. 15,364).
n82. See generally
Cardenas, supra note 70, at 357-72 (discussing history of
private prosecution). See also Note, Private Prosecution:
A Remedy for District Attorneys' Unwarranted Inaction, 65
YALE L.J. 209, 218-24 (1955) (reviewing role of private
prosecutors in the several states).
n83. The Judiciary Act provided
that the district attorney was to "prosecute in such district
all delinquents for crimes and . . . offenses, cognizable under the
authority of the United States." The Judiciary Act of 1789, ch.
20, § 35, 1 Stat. 72, 92.
n84. R. YOUNGER, supra
note 81, at 49-51. Judges commonly directed grand juries to
investigate certain conduct and, while some grand juries were not
persuaded, some not surprisingly followed the judges' lead. See
id.; 1 J. GOEBEL, HISTORY OF THE SUPREME COURT OF THE UNITED
STATES 622 (1971).
n85. R. YOUNGER, supra
note 81, at 47-52.
n86. See 1 Op. Att'y
Gen. 42 (1794).
n87. Id. at 41.
n89. Id. at 42. The
district attorney evidently reasoned that the Act of April 30, 1790
proscribed violence only against ambassadors and other public
ministers, but not against consuls who under traditional
international law did not enjoy comparable status. Id. See also
Hyneman, The First American Neutrality: A Study of the American
Understanding of Neutral Obligations During the Years 1792 to 1815,
20 U. ILL. BULL. 3, 152 (1934) (discussing incident).
n90. 1 Op. Att'y Gen. 43
(1794) (emphasis in original).
n91. As the Supreme Court later
held, grand juries may investigate and issue presentments for crimes
"no matter how or by whom suggested to them." Frisbie
v. United States, 157 U.S. 160, 163 (1895). See also Hale
v. Henkel, 201 U.S. 43, 61 (1906) (sanctioning practice of
federal grand juries to act upon their own notice or upon
information obtained from non-governmental sources).
n92. At the outset of our
nation, the practice was relatively common. See United
States v. Johnson (C.C.D. Va. 1806) (Box 69, Virginia State Library)
(four private citizens swore out complaints of embezzlement and
robbery and state judge issued warrant of arrest based on
testimony); United States v. Goosely (C.C.D. Va. 1796) (Box 15,
Virginia State Library) (private citizen swore out complaint of
embezzlement, justice of the peace issued warrant, and then private
citizen testified before grand jury which issued presentment against
n93. 27 F. Cas. 1123
(C.C.D.N.Y. 1818) (No. 16,309).
n94. United States v.
Skinner, 27 F. Cas. 1123, 1123-24 (C.C.D.N.Y. 1818) (No.
n95. The Neutrality Act of 1794,
ch. 50, § 3, 1 Stat. 381, 383. Today, the Neutrality Act is
codified at 18 U.S.C. § 962, et. seq. (1982).
n96. Act of June 5, 1794, ch.
50, § 3, 1 Stat. 381, 383.
n97. Skinner, 27 F. Cas. at
n98. Id. The court,
however, ordered the defendants released on other grounds. Id.
See also In re Rule of Court, 20 F. Cas. 1336, 1337 (C.C.N.D.
Ga. 1877) (No. 12,126) (stating that "[t]he magistrate
ought to have before him the oath of the real accuser, presented
either in the form of an affidavit, or taken down by himself by
personal examination, exhibiting the facts on which the charge is
based . . .").
n99. The power to cause the
arrest of a fellow citizen suspected of criminal conduct should not
be very surprising. Throughout the nineteenth century, private
citizens could, without any direct involvement by the executive
branch, seek the arrest of defendants in civil actions. Through
various common law and statutory means, an arrest could be made to
ensure jurisdiction over the defendant or to ensure that the
defendant would pay the ultimate judgment. The most frequently used
means of arrest was via the writ capias ad respondendum. See
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(discussing historical use of writ). The coercive power of the
state could thus be brought to bear upon an individual for
essentially private purposes.
In United States v. Griswold,
26 F. Cas. 42, 43 (D. Or. 1877) (No. 15,266), one B.F. Dowell
instituted suit for himself as well as on behalf of the United
States to recover penalties from the defendant Griswold for filing
false claims against the United States arising out of the Oregon
Indian War of 1854. The statute provided that a defendant could be
arrested and "held to bail in such sum as the district judge
may order, not exceeding the sum of two thousand dollars, and twice
the amount of damages sworn to, in the affidavit of the person
bringing suit." Id. Upon a complaint filed with the
court by counsel for Mr. Dowell, the district court ordered the
arrest of the defendant pursuant to the Act, without any involvement
by the district attorney. Griswold, 26 F. Cas. at 43. The
defendant then challenged the propriety of the arrest, contending
that it was invalid because the complaint had not been signed by the
district attorney, as required for all suits brought in the name of
the United States. Id. The court rejected the challenge,
reasoning that "[a]though the United States is the plaintiff,
Dowell is its authorized representative, and not the district
attorney." Id. at 44.
n100. The opinion of Attorney
General Bradford discussed previously casts some doubt on what the
practice was in the early years. See supra notes 86-91 and
accompanying text (discussing influence of private citizens).
n101. See generally M.
TACHAU, supra note 27; Schwartz, supra note 27, at 83.
n102. United States v. Hill,
26 F. Cas. 315, 316 (C.C.D. Va. 1809) (No. 15,364).
n103. A nolle prosequis
is a formal entry on the record by the prosecuting officer by which
he declares he will not prosecute the case further. BLACK'S LAW
DICTIONARY 545 (5th ed. 1983).
n104. The number is particularly
significant given the relative paucity of criminal provisions passed
by Congress. Five provisions plainly authorize participation by
private individuals. See, e.g., Act of March 3, 1791, ch.
15, § 44, 1 Stat. 199, 209 (criminalizing importation of liquor
without paying specified duties); Act of Feb. 20, 1792, ch. 7, §
25, 1 Stat. 232, 239 (making criminal failure to abide by certain
postal regulations); Act of March 1, 1793, ch. 19, § 12, 1 Stat.
329, 331 (prohibiting certain trade with Indian Tribes); Act of
March 22, 1794, ch. 11, § 2, 1 Stat. 347, 349 (making criminal
carrying on of slave trade with foreign nations); Act of May 19,
1796, ch. 30, § 18, 1 Stat. 469, 474 (prohibiting certain trade
with Indian Tribes). In addition, Congress at least implicitly
provided for qui tam actions on six other occasions. See Act
of June 5, 1794, ch. 48, § 5, 1 Stat. 373, 375 (prohibiting failure
to abide by certain regulations for transport); Act of June 5, 1794,
ch. 48, § 5, 1 Stat. 376, 378 (prohibiting failure to pay duty on
wine); Act of June 5, 1794, ch. 51, § 21, 1 Stat. 384, 389 (making
criminal failure to pay certain duties on refined sugar); Act of
June 9, 1794, ch. 65, § 12, 1 Stat. 397, 400 (making criminal
failure to pay duty on property sold at auction); Act of July 6,
1797, ch. 11, § 20, 1 Stat. 527, 532 (making criminal failure to
pay duty on parchment); Act of Feb. 28, 1799, ch. 17, § 5, 1 Stat.
622, 623 (prescribing duties on stamped paper).
n105. Imported Spirits Tax
Repeal Act of March 3, 1791, ch. 15, § 44, 1 Stat. 199, 209.
n106. The Act of February 20,
1792, which established a national postal service, similarly
provides that "all pecuniary penalties and forfeitures,
incurred under this act, shall be, one half for the use of the
person or persons informing and prosecuting for the same, the other
half to the use of the United States." National Postal Services
Act of 1792, ch. 7, § 25, 1 Stat. 232, 239. The Act of May 19,
1796, which regulated trade with Indian Tribes, provided that "the
amount of fines and duration of imprisonment . . . shall be
ascertained and fixed . . . in the discretion of the court . . . and
that all fines and forfeitures, which shall accrue under this act,
shall be, one half to the use of the informant [if the informant
initiates the action]." Indian Trade Relation Act of 1796, ch.
30, § 18, 1 Stat. 469, 474. See also Slave Trading Act of
April 20, 1818, ch. 91, § 3, 3 Stat. 450, 451 (prescribing civil
and criminal penalties in same section and only referring explicitly
to availability of qui tam action); Alien Immigration Act of March
3, 1903, 32 Stat. 1213 (upholding identical remedies for both civil
and criminal action).
n107. See infra text
accompanying notes 120-28.
n108. 6 U.S. (2 Cranch) 200
n109. Adams, qui tam v.
Woods, 6 U.S. (2 Cranch) 200, 200 (1805). The Act of April 30,
1790, entitled, An Act For the Punishment of Certain Crimes Against
the United States, ch. 9, § 32, 1 Stat. 112, 119 provides in
[N]or shall any person be
prosecuted, tried or punished for any offense not capital, nor for
any fine or forfeiture under any penal statute, unless the
indictment or information for the same shall be found or instituted
within two years from the time of committing the offense, or
incurring the fine or forfeiture aforesaid.
n110. The Slave Trade Act of
March 22, 1794, ch. 11, § 4, 1 Stat. 347, 349. The statute
provided that a defendant adjudged liable "shall forfeit and
pay . . . the sum of two hundred dollars . . .; the one moiety
thereof to the use of the United States, and the other moiety to the
use of such person or persons, who shall sue for and prosecute the
n111. Adams, 6 U.S. at 203.
n112. 108 F. 341 (S.D.N.Y.
n113. Newgold v. American
Elec. Novelty & Mfg. Co., 108 F. 341, 344 (S.D.N.Y. 1901).
The court adhered to the ruling in Boyd v. United States, 116
U.S. 616, 634 (1886), which held that "proceedings
instituted for the purpose of declaring the forfeiture of a man's
property by reason of offenses committed by him, though they may be
civil in form, are in their nature criminal." Boyd is of
limited vitality today. See United States v. Doe, 465
U.S. 605, 610 n.8 (1984) (stating that validity of Boyd
is open to serious question); Fisher v. United States, 425 U.S.
391, 405-08 (1976) (same).
n114. Newgold, 108 F. at 344;
see also Johnson v. Donaldson, 3 F. 22 (C.C.S.D.N.Y. 1880)
(affirming that "as the action was for penalties and a
forfeiture, the defendant could not be compelled to furnish evidence
n115. United States v.
Shapleigh, 54 F. 126 (8th Cir. 1893). Other courts noted that,
because qui tam actions are "penal" in nature, their
provisions should be strictly construed, and require careful
adherence to the law. See, e.g., Brose v. Sears, Roebuck
& Co., 455 F.2d 763, 765 (5th Cir. 1972); United States ex
rel. Felt v. Ronson Art Metal Works, 107 F. Supp. 84, 86 (D. Minn.
1952); Schwebel v. Bothe, 40 F. 478, 478 (E.D. Mo. 1889);
United States v. Kansas Pacific Ry., 26 F. Cas. 680, 680 (D. Kan.
1877) (No. 15,506); Ferrett v. Atwill, 8 F. Cas. 1161, 1163
(S.D.N.Y. 1846) (No. 4,747).
n116. 54 F. 126 (8th Cir.
n117. United States v.
Shapleigh, 54 F. 126, 129 (8th Cir. 1893).
n118. Id. at 129-30.
Accord Chaffee & Co. v. United States, 85 U.S. (18
Wall) 516, 545 (1873) (holding that government under qui tam
provision must prove the defendant "guilty" beyond a
reasonable doubt); United States v. The Brig Burdett, 34 U.S. (9
Pet.) 682, 691 (1835) (holding that "[n]o individual should
be punished for a violation of the law which inflicts a forfeiture
of property, unless the offense shall be established beyond a
reasonable doubt"); but cf. New York Cent. &
H.R.R. Co. v. United States, 165 F. 833, 839-40 (1st Cir. 1908)
(requiring only a preponderance of evidence in penalty case brought
by United States); Pooler v. United States, 127 F. 519, 521 (1st
Cir. 1904) (same).
Some state courts also required
more than a preponderance of the evidence in qui tam proceedings,
requiring that the jury have a "reasonable and well founded
belief that the defendant is guilty." Toledo, Peoria and
Warsaw Ry. v. Foster, 43 Ill. 480, 481 (1867). The district
court in United States ex rel. Marcus v. Hess, 41 F. Supp. 197,
216 (W.D. Pa. 1941), aff'd, 317 U.S. 537 (1943),
consistent with the evolving distinctions between civil and criminal
actions, rejected the reasonable doubt standard, adopting the
preponderance of the evidence standard used in almost all civil
proceedings. See infra note 128.
n119. See Union Tool
Co. v. Wilson, 259 U.S. 107 (1922). The Union Court held
"[w]here a fine is imposed partly as compensation to the
complainant and partly as punishment, the criminal feature of the
order is dominant and fixes its character for purposes of review."
Id. at 110.
n120. Some doubt remains as to
the preclusive effect of a qui tam action in the early years.
Compare 1 J. CHITTY, CRIMINAL LAW 7-9 (1819) (suggesting that
at common law in England there was no preclusive effect) with
3 W. BLACKSTONE, supra note 69, at 160 (suggesting preclusive
n121. 102 U.S. 603 (1880).
n122. United States v.
Chouteau, 102 U.S. 603, 611 (1880).
n123. See United
States v. La Franca, 282 U.S. 568, 575 (1931); United States
v. McKee, 26 F. Cas. 1116, 1117 (C.C.E.D. Mo. 1877) (No.
15,688); but see In re Leszynsky, 15 F. Cas. 397 (C.C.S.D.N.Y.
1879) (No. 8,279) (allowing criminal prosecution by United
States after civil IRS suit on ground that statute provided
different punishment for civil and criminal actions).
n124. United States v.
Shapleigh, 54 F. 126, 134 (8th Cir. 1893). Indeed, in its brief
as amicus curiae in United States ex rel. Marcus v. Hess, 317
U.S. 537 (1943), the government represented that it had never
instituted both a criminal proceeding and a qui tam action against
the same defendant. Amicus Brief for the United States at 45,
United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943).
n125. As the court stated in an
analogous context in United States v. Gates, 25 F. Cas. 1263,
1266 (S.D.N.Y. 1845) (No. 15,191), "where the proceedings
are founded upon the same statutory penalty . . . the government is
restricted to a single exaction of the penalty, whether enforced by
action or indictment. . . . The government will be restricted to
one satisfaction for an offense." For discussion of the
conflicting commentary on this issue during the early part of the
twentieth century, compare Note, Double Jeopardy in an Action for
a Penalty, 13 COLUM. L. REV. 529, 530-31 (1913) (arguing
for general preclusive effect) and Note, Former Jeopardy as Bar
to Civil Suit for Penalty Tax, 29 MICH. L. REV. 930, 931
(1931) (same) with Note, Conviction for False Return of
Income No Bar to Civil Action for Penalty, 47 HARV. L. REV.
1438 (1934) (arguing for limited application of double jeopardy
doctrine) and Note, Double Jeopardy -- Acquittal in Prior
Criminal Prosecution As Bar to Action for Penalties Based in Fraud,
37 MICH. L. REV. 647 (1939) (same).
n126. United States v. Gates,
25 F. Cas. 1263, 1266 (S.D.N.Y. 1845) (No. 15,191).
n127. The state court in
Commonwealth v. Churchill, 5 Mass. 174 (1809), held that a
qui tam action for usury precluded a subsequent state criminal
prosecution for the same offense. One judge in concurrence,
however, lamented that "[i]f the pendency of a qui tam action
is to prevent a prosecution for usury by the government, unless
collusion can be proved, a discreet usurer will always save himself
from a penalty, to which he apprehends himself exposed, by procuring
an action to be instituted by some confidential friend." Id.
at 182-83. See also Koerner v. Oberly, 56 Ind. 284,
287 (1877) (holding that double jeopardy precluded institution
of both civil and criminal penalties for same conduct).
n128. In United States ex
rel. Marcus v. Hess, 317 U.S. 537 (1943), the Supreme Court
ruled that an individual could be subject to both criminal and civil
penalties for the identical conduct. The Court rejected the
defendant's claim that double jeopardy barred the qui tam action
since the government had already instituted criminal proceedings and
settled the case upon a plea of nolo contendere. Id. at 545.
Hess marks a turning point in the evolution of judicial
attitudes towards the distinction between civil and criminal
Nonetheless, the Court in Hess
still noted that, in many cases, filing the civil False Claims Act
suit would hinder the government's ability to prosecute a criminal
action. The government argued as amicus curiae in the case that the
civil suit should not proceed because it would tend to fragment
responsibility for overseeing enforcement of the criminal laws and
because "effective law enforcement requires that control of
litigation be left to the Attorney General." Id. at 547.
The Court rejected the argument, reasoning that it lay within
Congress' power to determine that other policy considerations
outweighed the executive interest in undivided enforcement
authority. Id. Even though the Court recognized that pursuit
of a civil suit could directly interfere with the Executive's plans
to bring criminal proceedings, id. at 560-61, (Jackson, J.,
dissenting), it concluded that the legislature's discretion should
prevail. Id. at 546-47.
n129. United States v.
Griswold, 26 F. Cas. 42, 44 (D. Or. 1877) (No. 15,266). See
also United States v. Bush, 13 F. 625, 629 (D. Or. 1882)
(stating that under statute, private citizen who sues on behalf of
United States has right to control suit). Congress has since
limited the control wielded by private citizens in bringing some qui
tam actions. See 31 U.S.C. § 3730(b) (1982)
(permitting executive branch to take over qui tam action under False
Claims Act after notification by private citizen).
n130. Other civil actions, such
as antitrust treble damage suits, also contain a punitive component.
Certainly, private citizens help enforce the criminal laws in such
contexts as well. But qui tam actions differ markedly from such
actions both because the plaintiff sues on behalf of the United
States and, more importantly, because historically the qui tam
action much more directly encroached upon the executive's ability to
institute criminal proceedings.
n131. See, e.g., Clean
Water Act, 33 U.S.C.A. 1365 (West Supp. 1987) (providing that
"[a]ny person . . . having an interest which is or may be
adversely affected [by the violation of a permit limitation]"
may sue for civil penalties which are to be paid to the federal
government); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Found., Inc., 108 S. Ct. 376 (1987) (discussing citizen suit
provision of Clean Water Act).
n132. To be sure, it could be
argued that the sharper distinction between civil and criminal
penalties that exists today undercuts the significance of the prior
private involvement in qui tam actions. In other words,
presidential authority over criminal law enforcement arguably should
be enhanced today given the doctrinal evolution of the
civil/criminal distinction. Yet the separation between civil and
criminal penalties has been forged not to augment presidential
authority but largely because of the needs of the burgeoning
regulatory bureaucracy (see Hess, 317 U.S. at 548-52), and
the concomitant necessity of determining the appropriate protections
for individuals subject to the coercive power of those regulatory
entities (see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-70
(1963)). It cannot plausibly be argued that the demarcation
between civil and criminal actions has arisen to segregate a power
that must exclusively be exercised by the President.
n133. Judiciary Act of Sept. 24,
1789, ch. 20, 1 Stat. 73, 76, 77.
n134. Id. at 3, 11, 1
Stat. 73, 78-79.
n135. See generally 1 M.
FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787 at 124 (1966 ed.)
(remarks of Mr. Madison and Mr. Wilson); E. SURRENCY, supra
note 27, at 114; Note, Utilization of State Courts to Enforce
Penal and Criminal Statutes, 60 HARV. L. REV. 966 (1947).
n136. Carriage Tax Act of June
5, 1794, ch. 45, § 10, 1 Stat. 373, 375.
n137. Id., ch. 48, § 5,
1 Stat. 376, 378. See Buckwalter v. United States, 11 Serg &
Rawle 193, 196-97 (Pa. 1824) (upholding jurisdiction over qui tam
action to recover liquor duties and characterizing such action as
criminal in nature).
n138. Spirits Tax Act of June 5,
1794, ch. 49, § 9, 1 Stat. 378; see Hartley v. United
States, 4 Tenn. 45 (1816) (upholding jurisdiction over action
for penalty under liquor laws); Worthington v. Masters, 1 Hall's
Jour. Juris. 196 (Ohio C.P. 1804) (sustaining penalty action by
equally divided vote).
n139. See Indian Trading
Act of April 18, 1796, ch. 13, § 7, 1 Stat. 452, 453 (imposing
penalties for making certain trades with Indian Tribes); Act of July
6, 1797, ch. 11, § 20, 1 Stat. 527, 532 (imposing penalties for
failure to pay stamp duties).
n140. See infra note 150.
n141. Act of March 8, 1806, ch.
14, §§ 1, 2, 2 Stat. 354, 354-55; Jurisdiction Extension Act of
April 21, 1808, ch. 51, 2 Stat. 489. See generally T.
SERGEANT, CONSTITUTIONAL LAW 268-73 (1822).
n142. E. SURRENCY, supra
note 27, at 114.
n143. Fugitive Slave Act of Feb.
12, 1793, ch. 7, § 3, 1 Stat. 302, 302-03.
n144. See Burke, What
Did the Prigg Decision Really Decide?, 93 PA. MAG. HIST. &
BIOG. 73, 74-75 (1969). The duties Congress assigned under the
Fugitive Slave Act served as a continuous source of irritation in
federal-state relations. Prigg v. Pennsylvania, 41 U.S. (16
Pet.) 539, 616-22 (1842) (holding that state magistrates may
exercise administrative authority prescribed in Act).
n145. Alien Enemy Act of July 6,
1798, ch. 66, § 2, 1 Stat. 577, 577.
n146. Id. at 577-78. See
Morgan v. Dudley, 57 Ky. 693, 713 (1857) (upholding state
discharge of tasks allotted under immigration laws); State v.
Penny, 10 Ark. 621 (1850) (same.)
n147. Act of July 20, 1790, ch.
29, § 7, 1 Stat. 71, 131, 134-41. See Ex parte Pool, 2 Va. Cas.
276, 280 (1821) (upholding act of Congress requiring justice of
the peace to arrest and detain sailor deserting from merchant
service until ship could retrieve him). The Supreme Court
ultimately upheld the practice. Robertson v. Baldwin, 165
U.S. 275 (1897) (upholding Congress' right to authorize state
officials to arrest deserting seamen and deliver them on board their
n148. Congress has periodically
vested the power to arrest not only in private citizens, but also in
federal officers not subject to the plenary control of the
executive. See, e.g., Ex parte Siebold, 100 U.S. 371 (1879)
(discussing role of election supervisors appointed by Article III
courts); Ex parte Geissler, 4 F. 188 (C.C. Ill. 1880) (same).
n149. Post Office Act of March
2, 1799, ch. 43, § 28, 1 Stat. 733, 740-41.
n150. 9 ANNALS OF CONGRESS 3671
(1799) (report of the Postmaster General). Some Federalists,
however, feared that granting too much jurisdiction in state courts
would undermine national governmental objectives because of the
growing state-federal tensions. One aim of the Judiciary Act of
1801 was to alleviate the dependence on state courts. See 10
ANNALS OF CONGRESS 867 (1801) (statement of Rep. Bird) ("it was
not unfair to suppose, in the succession of events, the occasional
existence in particular States of a spirit of hostility to some
measure of the Federal Government"). In arguing against the
subsequent repeal, Senator Griswold commented that "[t]he
absurdity of relying on State justice for the execution of our penal
laws or the laws relating to the revenue cannot be overlooked;"
cited in C. WARREN, supra note 35, at 567.
n151. The Postal Service Act,
Pub. L. No. 86-682, 74 Stat. 578 (codified as amended at 39
U.S.C. § 1 (1960)). See H.R. REP. NO. 86-36, 86th Cong.,
1st Sess. 127A (1959).
n152. 20 S.C.L. (2 Hill) 687
n153. State v. Wells, 20
S.C.L. (2 Hill) 687, 695 (1835); see also State v.
McBride, 24 S.C.L. (1 Rice) 400 (1839) (reversing on other
grounds prosecution for violation of postal laws brought by state
official). Cf. In re Gill, 3 City Hall Rec. (N.Y.) 61 (1818)
(sustaining indictment at common law which tracked congressional
postal statute). In addition, a criminal prosecution in state court
under federal law may have precluded any federal prosecution for
violation of the same law.
n154. Note, supra note
135, at 967.
n155. See, e.g., State
v. McBride, 24 S.C.L. (1 Rice) 400 (1839) (overruling Wells
on ground that courts of one sovereign lack jurisdiction to try
crimes against another sovereign); Jackson v. Rose, 2 Va. Cases
34, 35-38 (1815) (denying jurisdiction over federal penalty
action); United States v. Campbell, 6 HALL'S AMER. L.J. 113 (1814)
(same); Brigham v. Claflin, 31 Wis. 607 (1872) (same); Haney
v. Sharp, 31 Ky. (1 Dana) 442 (1833) (same); Davison v.
Champlin, 7 Conn. 244 (1828) (same); United States v.
Lathrop, 17 Johns 4 (N.Y. 1819) (same).
n156. Federal judges argued in
dicta against the exercise of such concurrent jurisdiction, albeit
from a different political bent. See The Antelope, 23
U.S. (10 Wheat.) 66, 123 (1825) (Marshall, C.J.); Martin v.
Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 336-37 (1816) (Story,
n157. Stephens, Petitioner,
70 Mass. (4 Gray) 559, 562-63 (1855) (declining to rule on
application for citizenship); Beavins' Petition, 33 N.H. 89, 94
(1856) (same); Maryland v. Rutter, 12 Niles Register 114, 118
(1817) (concluding that state justice of peace could not lawfully
order arrest for violation of federal law). The Federal Gazette
commented that the decision declared "that no state Judge or
Justice of the Peace has power to arrest or commit any person for a
violation of the laws of the United States," cited in D.
HENDERSON, supra note 35, at 128-29.
n158. Claflin v. Houseman, 93
U.S. 130 (1876) (holding that state courts might permissibly
exercise jurisdiction granted by Congress).
n159. Tennessee v. Davis, 100
U.S. 257, 271 (1879).
n160. Ex parte Siebold, 100
U.S. 371, 381-89 (1879).
n161. Second Employer's
Liability Cases, 223 U.S. 1, 59 (1912) (concluding that rights
arising under act of Congress must be enforced in state court when
within state court's jurisdiction).
n162. Testa v. Katt, 330 U.S.
386 (1947) (holding Rhode Island under obligation to enforce
penal laws of United States).
n163. Such course of action was
evidently considered in the Emergency Price Control Act of 1942. P.
BATOR, P. MISHKIN, D. SHAPIRO, & H. WECHSLER, THE FEDERAL COURTS
AND THE FEDERAL SYSTEM 437 (1973 ed.).
n164. National Prohibition Act,
Pub. L. No. 66-66, 41 Stat. 305, 314-15 (1919). See Ex parte
Brambini, 192 Cal. 19, 218 P. 569 (1923) (en banc); Carse v.
Marsh, 189 Cal. 743, 210 P. 257 (1922) (finding that "[t]he
right of the district attorney to proceed in the name of the United
States is given by the Volstead Act. There can be no doubt of the
right of the United States to avail itself of the law officers of
the state for the purpose of enforcing the act of Congress");
Ex parte Gounis, 304 Mo. 428, 263 S.W. 988 (1924) (same);
United States v. Stevens, 103 Conn. 7, 130 A. 249 (1925);
United States v. Richards, 201 Wisc. 130, 229 N.W. 657 (1930)
n165. See Carse v.
Marsh, 189 Cal. 743, 210 P. 257 (1922) (sustaining criminal
conviction under state law for contempt of injunction entered in
name of United States).
n166. More recently, Congress
has vested similar law enforcement responsibilities in independent
administrative agencies. As a matter of course, Congress has
empowered independent agencies to seek either an injunction to
restrain ongoing criminal conduct or civil penalties to deter that
conduct. The Securities & Exchange Commission, for example, may
file for a civil injunction against certain insider trading
practices, see SEC v. Materia, 745 F.2d 197, 201 (2d Cir. 1984),
may impose monetary sanctions for that same conduct, id. at
200-01, or may refer such matters to the United States Attorney
for criminal prosecution. Congress thus has authorized officers
shielded from the President's plenary removal authority to help
enforce the criminal laws.
Indeed, Congress has conferred
particularly expansive authority upon the independent Federal
Election Commission (FEC). The FEC, like other independent
agencies, may sue civilly to enjoin practices made criminal by
Congress. 2 U.S.C. § 437d(a) (1982). As an alternative,
the FEC may enter into a compliance agreement (2 U.S.C. §
437g(a)(4)) with the individual accused of unlawful conduct.
Congress has provided that the FEC's decision to enter into a
compliance agreement is evidence of a lack of mens rea in any
subsequent criminal investigation. 2 U.S.C. § 437g(d)(2).
Thus, Congress determined that, although the FEC could not block a
criminal prosecution initiated by the Attorney General, the judgment
of the FEC would at least impede future criminal prosecution by the
Attorney General. As the sponsor of the provision explained on the
Senate floor, "No one would want the Department of Justice to
be continually undercutting the action of the Federal Election
Commission by initiating criminal prosecutions against people who
have already entered into conciliation agreements with the FEC."
122 CONG. REC. 6956 (1976) (statement of Senator Clark). See
also United States v. International Union of Operating
Engineers, 638 F.2d 1161 (9th Cir. 1979) (addressing relevance
of compliance agreement to subsequent criminal prosecution), cert.
denied, 444 U.S. 1077 (1980).
n167. See Frankfurter,
Distribution of Judicial Power Between United States and State
Courts, 13 CORNELL L.Q. 499, 517 (1928).
n168. Through a system of checks
and balances, the Framers sought to circumscribe primarily the
legislature's authority. See generally G. WOOD, THE CREATION
OF THE AMERICAN REPUBLIC, 1776-1787 at 403-13 (1969). As Madison
explained, "[i]n republican government, the legislative
authority necessarily predominates." THE FEDERALIST No. 51 (J.
Madison) 322 (C. Rossiter ed. 1961).
n169. The majority so intimated.
Morrison, 108 S. Ct. at 2619.
n170. Prosecutions for contempt
of court are another exception. See Young v. United
States ex rel. Vuitton et Fils S.A., 107 S. Ct. 2124 (1987)
(recognizing authority in Article III courts to appoint private
prosecutor, under certain conditions, to prosecute contempt of
n171. As the Executive's power
has expanded in many other ways since the nineteenth century, the
accretions in control over criminal law enforcement may seem modest.
See generally E. CORWIN, supra note 20.
n172. Congress afforded the
Executive greater control over qui tam actions under the False
Claims Act in the wake of the Hess opinion. Pub. L. No.
78-213, 57 Stat. 608 (1943). Similarly, in revising the Internal
Revenue Code in 1939, Congress vested the Internal Revenue
Commissioner with greater authority over private qui tam actions.
See I.R.C. § 3740, 53 Stat. 460 (1939)
(stating that no suit for recovery of taxes or penalties allowed
unless authorized by Commissioner and Attorney General).
n173. See generally
Schwartz, supra note 27, at 64-66.
n174. The Supreme Court's recent
decision in Young is illustrative. There, the Court
overturned a criminal contempt conviction obtained by a private
prosecutor appointed by the judge. As frequently occurs in the
civil contempt context, the prosecutor was one of the parties
involved in the underlying case. The Court rejected the defendant's
claim that the exercise of prosecutorial authority by a private
citizen robbed him of due process, Young, 107 S. Ct. at 2133-34.
The Court, however, reversed the conviction on the ground that the
private prosecutor was "interested" in the outcome of the
case, and that such interest might "tempt" him "to
bring a tenuously supported prosecution if such a course promises
financial or legal rewards for the private client [or] to abandon a
meritorious prosecution if a settlement providing benefits to the
private client is conditioned on a recommendation against criminal
charges." Id. at 2136.
In contrast, the Court noted
that a government prosecutor "is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation
to govern at all; and whose interest, . . . therefore, is not that
it shall win a case, but that justice shall be done." Id. at
2135 (quoting Berger v. United States, 295 U.S. 78, 88
(1935)). Public prosecutions, therefore, bring the hope of a
"dispassionate assessment of the propriety of criminal
charges." Id. at 2136.
n175. If it deems appropriate,
however, Congress may withdraw its comparatively recent delegations
of authority to the executive branch in the criminal law enforcement
context. Congress could presumably reinstitute qui tam actions for
certain crimes, or it could direct executive branch officials, as it
did during the First Congress, to initiate prosecutions for every
known violation of the law. Congress' decision in the Ethics in
Government Act to remove some of the discretion currently enjoyed by
executive branch prosecutors poses no intractable separation of
powers concern when viewed from a historical perspective.
n176. The development of the law
concerning an individual's ability to swear out a complaint before a
magistrate provides a case in point. Those courts that have barred
individuals from access to a magistrate or a commissioner under Fed.
R. Crim. P. 3 have ignored the countervailing history and failed
to cite any authority in concluding that obtaining either a
complaint or a warrant for arrest is inherently an executive
function. See supra note 80 and accompanying text.
Similarly, courts from an early period in our history prevented
individuals from contacting grand juries directly. See supra
note 79. Courts also have been increasingly loathe to recognize a
qui tam action unless Congress has explicitly so provided. See
Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81
(2d Cir. 1972) (declining to recognize qui tam action). The
Supreme Court has also denied an individual standing to contest a
prosecutorial decision by a government official. Linda R. S. v.
Richard D., 410 U.S. 614 (1973).