Defenses Commensurate with the Danger of Attack: The Special Counsel Regulations, Separation of Powers and A Call for Reform in the Department of Justice

• Pages: 453-545
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: Noel L. Hillman
• Subject Matter: Derecho Público y Administrativo

ARTICLES

Defenses Commensurate with the Danger of

Attack: The Special Counsel Regulations,

Separation of Powers and A Call for Reform in

the Department of Justice

NOEL L. HILLMAN*

ABSTRACT

This paper examines constitutional and practical issues surrounding criminal

investigations of a sitting or former president and related matters. Part I exam-

ines the source and nature of the executive power to prosecute and discusses

the Supreme Court’s seminal decision in Morrison v. Olson, 487 U.S. 654

(1988) in that context. Part II recounts how the executive power to investigate

the president was f‌irst exercised administratively within the Department of

Justice and under the post-Watergate Independent Counsel Act (“ICA”) and

why the ICA, although determined to be constitutional in Morrison, was allowed

to expire. Part III discusses the Department of Justice’s (“DOJ”) current

Special Counsel regulations, which replaced the ICA, and certain legislative

proposals which would have re-involved the third branch in protecting the inde-

pendence of special counsel. This part also contends the Special Counsel regu-

lations are either unconstitutional per se, unconstitutional as applied, or

represent an overt effort to mislead the American public about the exercise of

executive power. Part IV describes certain ad hoc procedures and policies,

largely driven by the well-deserved respect given to one senior off‌icial, which

have guided DOJ through various crises but, as recent events have demon-

strated, are now inadequate. Finally, Part V offers, as an alternative to f‌irst and

third branch involvement, certain structural reforms within DOJ designed to

* Director, Gibbons, P.C., Philadelphia, PA; United States District Judge (Ret.), District of New

Jersey (2006-2024); United States Department of Justice, Criminal Division, Senior Counsel to the

Assistant Attorney General (2006), Chief and Principal Deputy Chief, Public Integrity Section (2001-

2006), and Trial Attorney, Campaign Finance Task Force (1999-2000); Assistant U.S. Attorney, District

of New Jersey (1992-2001). This article was written to satisfy the academic requirements of Duke

University Law School’s LL.M. in Judicial Studies Program. I am deeply indebted to my faculty

advisor, Prof. Sara Sun Beale, for her candid and constructive advice, and to Professor Mitu Gulati, now

on the faculty of the University of Virginia Law School, and Duke Professor Jack Knight, for the same

support. I am also grateful to my LL.M. classmates at Duke Law for their good cheer, camaraderie, and

helpful comments during our writing seminar and in the eight weeks over two years we spent together in

Durham. All opinions, errors, and omissions are the author’s alone and nothing in this Article should be

construed to represent the views of any other person or institution, public or private. © 2024, Noel L.

Hillman.

453

ensure the executive branch exercises its core prosecutorial power with integ-

rity and independence.

"[T]he great security, against a gradual concentration of the several powers

in the same department consists in giving to those who administer each depart-

ment the necessary constitutional means and personal motives to resist

encroachments of the others. The provision for defense must in this, as in all

other cases, be made commensurate to the danger of attack.”

The Federalist No. 51, pp. 321-322 (Madison, J.)

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455

I. THE POWER TO PROSECUTE: A CORE EXECUTIVE BRANCH

FUNCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460

A. A Core Constitutional Function. . . . . . . . . . . . . . . . . . . . . . . 460

B. The Ethics in Government Act of 1978 . . . . . . . . . . . . . . . . . . 467

II. THE INDEPENDENT COUNSEL ACT: ITS LOFTY GOALS AND

TALES OF UNINTENDED CONSEQUENCES . . . . . . . . . . . . . . . . . . 469

A. The ICA in Design and Concept. . . . . . . . . . . . . . . . . . . . . . . 469

B. Morrison v. Olson and Justice Scalia’s “Great Dissent”. . . . 472

C. Monica Lewinsky and the ICA in Practice . . . . . . . . . . . . . . . 480

D. China-gate, Janet Reno and the Campaign Finance Task

Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488

III. A THIRD WAY - THE SPECIAL COUNSEL REGULATIONS AND THE

THIRD BRANCH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492

A. The Special Counsel Regulations: An Imperfect Regime . . . . 492

B. Congressional Meddling and the Ghost of Ken Starr . . . . . . . 497

C. DOJ’s Attempt To Have It Both Ways . . . . . . . . . . . . . . . . . . 500

IV. DAVID: WHERE FOR ART THOU?: INSTITUTIONALIZING THE ROLE

OF THE CAREER ADAG. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506

A. David Margolis and Conf‌lict of Interest Enforcement. . . . . . . 506

454 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 22:453

B. James Comey and the Physics of a Vacuum . . . . . . . . . . . . . . 512

C. Rod Rosenstein, Andrew McCabe and the Dueling Ethicists . . . 523

V. A CALL FOR STRUCTURAL REFORMS WITHIN THE DEPARTMENT OF

JUSTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524

A. A DOJ “Integrity Division”. . . . . . . . . . . . . . . . . . . . . . . . . . 524

B. Key Components of the Integrity Division . . . . . . . . . . . . . . . 526

1. Returning the Public Integrity Section to its Original

Role.............................................. 526

2. Expansion of PIN’s Election Crimes Branch ........... 528

3. OEO and FCPA Enforcement........................ 530

4. OPR, PRAO and an Off‌ice of Justice Ethics............ 532

5. Foreign Intelligence Surveillance Act Oversight........ 533

C. The Role of the ODAG in Insuring Department-Wide Integrity 536

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537

INTRODUCTION

At least since the existential trauma of Watergate, if not from the founding,

1

we as a nation have struggled with a fundamental question of constitutional

dimension: Who may investigate the President for conduct which may be a crime

and when?

2

The f‌irst post-Watergate attempt by the Legislative Branch to address

1. Both James Madison and Alexander Hamilton understood the risk of, and advocated for structural

protections against, a corrupt executive. See THE FEDERALIST NO. 69, at 416 (Alexander Hamilton)

(emphasis added) (“The President of the United States would be liable to be impeached, tried, and upon

conviction . . . removed from off‌ice, and would afterwards be liable to prosecution and punishment in

the ordinary course of law.”). Cf. U.S. CONST., art. 1, § 3, cl. 7 (“Judgment in Cases of Impeachment”

limited to removal from off‌ice and disqualif‌ication from future off‌ice “but the Party convicted shall

nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”).

Article 1, Section 3, cl. 7 tracks The Federalist No. 69 with f‌idelity.

2. Whether the President enjoys immunity from criminal prosecution during off‌ice is an unsettled

question. The Department of Justice’s Off‌ice of Legal Counsel (OLC), which provides constitutional

law advice for the Off‌ice of the President, has twice opined that the President is immune from criminal

prosecution while in off‌ice. See A Sitting President’s Amenability to Indictment and Criminal

Prosecution, 24 Opinions of the Attorneys General (Op. Atty’s Gen.) 222 (October 16, 2000) (Randolph

D. Moss, Assistant Attorney General) (aff‌irming Sept. 24, 1973 OLC opinion). Others have expressed

differing views. See generally, Impeachment or Indictment: Is a Sitting President Subject to the

Compulsory Criminal Process, HEARING BEFORE THE SUBCOMM. ON THE CONST., FEDERALISM, AND

PROP. RTS. OF THE S. COMM. ON THE JUDICIARY, 105TH CONG. (Comm. Print 1998). While OLC’s

opinion is of substantial persuasive weight and appears consistent with the text and purpose of Article 1,

the word of OLC is not the f‌inal word. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)

2024] DEFENSES COMMENSURATE WITH DANGER 455