UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MADISON GUARANTY SAVINGS & LOAN ASSOCIATION


94-0001d

D.C. Cir. 1999


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Opinion of the Special Division filed Per Curiam.


Dissenting Opinion filed by Senior Judge Cudahy. Per curiam: 28 U.S.C.
 596(b)(2) empowers the Division of the Court "on its own motion or
upon the request of the Attorney General [to] terminate an office of
independent counsel . . . on the ground that the investigation of all
matters within the prosecutorial jurisdiction of such independent
counsel . . . have been completed or substantially completed that it
would be appropriate for the Department of Justice to complete such
investigations and prosecutions." The statute further provides that
the Division should enter an appropriate order on its own motion at
the end of the first two-year period of the independent counsel
investigation, the second two year period and thereafter at the end of
each succeeding year. We have never interpreted this section to
empower the Division to supervise independent counsel. Indeed, it
could not constitutionally do so. In Morrison v. Olson, 487 U.S. 654
(1988), the Supreme Court upheld the constitutionality of the Ethics
in Government Act against a challenge that it violated the separation
of powers doctrine precisely because the Division created under the
Act "has no power to supervise or control the activities of the
counsel." Id. at 695. We have consistently followed the Supreme
Court's teaching on this doctrine. See, e.g., In re North (Walsh Show
Cause Order), 10 F.3d 831, 837 (D.C. Cir., Spec. Div., 1993).
Therefore, in the absence of a motion from the Attorney General, or a
party having standing to raise an actual case or controversy
cognizable by the court under Article III, as in Walsh Show Cause
Order, supra, we have limited our termination inquiry to request of
the independent counsel as to whether the investigation was completed.
Where, as in Walsh Show Cause Order, there has been a dispute
concerning the completion, or even a potential dispute, we have called
upon the independent counsel for further filing. Otherwise, we have
not engaged in conduct that might have crossed the constitutional
barrier into supervision. Nor do we intend to do so today. In the
current case, as in prior instances under the statute, the Division
has inquired of the independent counsel and received his assurance
that his work is ongoing. Having neither the constitutional authority
to supervise nor a motion from the Attorney General, nor any
Application by any other party having standing to bring before the
court an Article III controversy, we have not looked beyond the public
record to seek support for this proposition. In this case, the public
record offers ample support. As our dissenting colleague recognizes,
this investigation has reached the fifth anniversary of the
appointment, a good deal less time than that occupied by the
investigation in In re North or In re Pierce, and has been unusually
productive, having resulted, as our colleague recognizes, in the
impeachment of a President, as well as twenty-four (24) indictments
and sixteen (16) convictions not alluded to by our dissenting
colleague. While we cannot, without challenging the border of
unconstitutional supervision, inquire as to the precise day-to-day
nature of the remaining work, it is quite evident that it involves at
least the production of a final report, along with such "residual
noninvestigative and nonprosecutorial authority duties relating to the
filing of the Final Report," as would normally accompany the
winding-down of an investigation of the present scope. See In re
North, 10 F.3d at 834. For reasons that are not clear to us, our
dissenting colleague would depart from our usual custom and commence
supervision in the case of Independent Counsel Starr as has never been
done with any other independent counsel. Nothing known to us explains
why we should visit upon this particular independent counsel a level
of supervision different than that ever before afforded in the absence
of some motion by the Attorney General or some other party having the
standing to bring a case or controversy within the cognizance of the
court rather than an exercise in unconstitutional supervision. For


CUDAHY, Senior Circuit Judge, dissenting: Terminating the office of an
independent counsel when his work is completed is one of the most
important obligations with which this court is charged. An endless
investigation, which the passivity of the majority invites, can serve
no possible goal of justice and imposes needless burdens on the
taxpayers. The approach advocated by the majority renders the
termination provisions of the Independent Counsel Act, 28 U.S.C.
596(b)(2), a dead letter. The language in Morrison v. Olson, 487 U.S.
654, 695 (1988), on which the majority relies may preclude this
Division from attempting to "supervise or control" the manner in which
an independent counsel carries out his duties. There is certainly no
indication, however, that the Supreme Court intended to nullify the
termination provisions of the statute. I do seem to agree with the
majority on certain preliminary questions. First, this Division must
make a termination decision. Second, this decision must be based on
some information.  Third, the Division can request this information
from an independent counsel. On the questions of how much information,
what kind of information and what sort of decision the available
information dictates, I emphatically disagree. The approach advocated
by the majority here is in stark contrast to the aggressive
performance of this Division in In re North (Walsh Show Cause Order),
10 F.3d 831 (D.C. Cir. 1993).  The Independent Counsel statute
provides that the Division "shall" make a determination, even if on
its "own motion." 28 U.S.C.  596(b)(2). We need not wait for some
other party to suggest that the Division exercise its powers of
termination (as ex-President Reagan did in In re North). The statute
also directs that our termination decision be based on specific
information:  whether an independent counsel's investigations are
"completed or so substantially completed that it would be appropriate
for the Department of Justice to complete such investigations . . . ."
 We further know that the Division can, without breaching any
constitutional walls that separate powers, request that an independent
counsel provide information regarding the status of his investigations
so that the Division may determine whether the statutory "conditions
for termination [have] been met." In re North, 10 F.3d at 832. In
fact, in the North case, the Division's informational requests of
Independent Counsel Lawrence Walsh took the emphatic form of an Order
to Show Cause why his investigation should not be terminated. See id. 
I have sought to have this Division request specific information from
the Independent Counsel about further investigative activity that he
could usefully undertake and which could not now properly be turned
over to the Department of Justice. My efforts along these lines have
been rebuffed. The only word which is available to me of the
Independent Counsel's possible investigative prospects are very
general representations that such prospects may exist, conveyed in an
informal "contact" between the Independent Counsel and the Presiding
Judge of this Division. Despite the very high esteem in which I hold
the Presiding Judge, I do not believe that vague intimations
informally conveyed are an adequate basis for our official action. I
strongly believe that the Division needs more information -- of the
specific kind identified in the statute -- in order to make its
decision. In any event, based on what I know (or do not know) now,
there is a strong case for termination, and it would be very difficult
to persuade me otherwise. This investigation is celebrating its fifth
birthday, and it has led to the impeachment of the President of the
United States followed by his acquittal by the Senate. This is a
natural and logical point for termination, since it is not clear how
additional measures against the principal subject of the investigation
could be pursued. Nor is there any indication that the Independent
Counsel would pursue them -- whatever they might be. In addition,
there apparently are no pending prosecutions against lesser figures.
The past record of the Independent Counsel in procuring indictments
and convictions of others implicated in the investigation is certainly
of interest but is quite irrelevant to future prospects or legitimate
needs at this stage of the process. From the information at my
disposal, I must conclude that there is nothing further to be done,
beyond a Final Report, and certainly nothing that cannot properly be
turned over to the Department of Justice, as the statute provides.
Termination, of course, may be conditional on completion and
submission of a Final Report. See In re North, supra. I would