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83 Minn. L. Rev. 1197 (1999)


The independent counsel system as established by the Ethics in Government Act of 1978 has put different components of the executive branch, such as the President and Department of Justice in the position of litigating against a special counsel. Litigation is not only a bad idea, it also gives rise to a serious constitutional dilemma. It either violates Article III because there is insufficient adversity to support litigation between the parties. Or it violates Article II, by preventing the President and his subordinates from controlling central functions of the executive branch, and places the independent counsel, an inferior officer, in a constitutionally superior position not only to the Attorney General but also to the President of the United States himself. Somewhat paradoxically, the system also intrudes on Article H values because it removes from the President the responsibility and accountability for how laws are executed. Either by directly violating Article I's limitation of the judicial power to cases or controversies, or by impinging on the values and structure of Article H, the independent counsel system deeply violates the constitutional structure.


Reprinted with permission of Minnesota Law Review.

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