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


IN RE: MADISON GUARANTY SAVINGS & LOAN ASSOCIATION


94-0001e

D.C. Cir. 1999


*	*	*


Opinion of the Special Division filed Per Curiam.


Dissenting Opinion filed by Senior Judge Cudahy.


Per curiam: 28 U.S.C. s 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 so substantially
complet- ed that it would be appropriate for the Department of Justice



to complete such investigations and prosecutions." The stat- ute
further provides that the Division should enter an appro- priate 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 comple- tion, 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 constitu- tional barrier into supervision. Nor do we


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 impeach- ment 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
authori- ty 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 col- league 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. Noth- ing 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 super- vision.


For those reasons, we have today issued an order declining  to
terminate the Office of Independent Counsel in this matter.


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. s 596(b)(2), a dead letter. The language in
Morri- son v. Olson, 487 U.S. 654, 695 (1988), on which the majority 
relies may preclude this Division from attempting to "super- vise 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


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 infor- mation. 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 deci- sion the available information dictates, I emphatically
dis- agree. 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. s
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 pow-


ers, request that an independent counsel provide information  regarding
the status of his investigations so that the Division  may determine
whether the statutory "conditions for termi- nation [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 infor- mation from
the Independent Counsel about further investi- gative 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 identi- fied 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


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 convic- tions of
others implicated in the investigation is certainly of  interest but
is quite irrelevant to future prospects or legiti- mate 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. Termi- nation, of course, may be
conditional on completion and  submission of a Final Report. See In re
North, supra. I  would therefore terminate the office of this
Independent  Counsel subject to completion and submission of a Final 


For these reasons, I respectfully dissent.