[Congressional Record Volume 144, Number 97 (Monday, July 20, 1998)]
[Extensions of Remarks]
[Page E1356]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 JUDGE SILBERMAN'S ATTACK ON THE ATTORNEY GENERAL COMES UNDER CRITICISM

                                 ______
                                 

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                         Monday, July 20, 1998

  Mr. CONYERS. Mr. Speaker, I ask unanimous consent to enter into the 
record the following editorial that appeared today in the Washington 
Post. This article quite rightly criticizes D.C. Court of Appeals Judge 
Laurence Silberman's opinion issued last week in response to the 
Justice Department's request for a stay of the lower court order 
requiring several Secret Service agents to testify before the grand 
jury.
  As this editorial makes clear, Judge Silberman's broad view of the 
powers of the independent counsel is completely insupportable. The 
editorial also helpfully reminds us that Judge Silberman once struck 
down the Independent Counsel Act as unconstitutional, but was later 
reversed by the Supreme Court. Judge Silberman's insistence on 
construing the Independent Counsel Act as broadly as possible, 
therefore, appears to be another chapter in an old argument that has 
long since been lost. This editorial provides some important context to 
Judge Silberman's intemperate attacks on the Justice Department's good-
faith representation of the Secret Service.

               [From the Washington Post, July 20, 1998]

                 A Power Not Vested in the Constitution

                          (By Benjamin Wittes)

       Judge Laurence Silberman's extraordinary concurrence in 
     last week's Court of Appeals decision concerning grand jury 
     testimony by Secret Service agents grabbed headlines for its 
     vituperative rhetoric. The judge cast aspersions on Attorney 
     General Janet Reno, saying she was ``acting as the 
     President's counsel under the false guise of representing the 
     United States.'' And Silberman also accused ``the President's 
     agents [of] literally and figuratively `declar[ing] war' on 
     the Independnce Counsel.''
       Silberman's overheated rhetoric, however, was not the most 
     remarkable aspect of his opinion--which, as a mere 
     concurrence, fortunately does not have the force of law. As a 
     prominent conservative jurist, Silberman is an advocate of 
     judicial restraint, yet his opinion Thursday was almost a 
     prototype of activist judging. Indeed, the judge opined on a 
     matter the parties had not squarely presented him. And, 
     having reached its merits unnecessarily, he issued an opinion 
     with constitutional implications for the independent counsel 
     statute, a law that was upheld unequivocally by the Supreme 
     Court in the 1988 case known as Morrison v. Olson. 
     Silberman's opinion is more dramatic still, because the high 
     court's holding in Morrison reversed an appeals court 
     decision written by none other than Laurence Silberman 
     himself.
       Silberman's opinion does not directly attack the 
     constitutionality of the independent counsel statute. Though 
     he gripes about it, the judge is, after all, bound by the 
     Morrison precedent. But by asserting that the attorney 
     general legally cannot litigate against Kenneth Starr on 
     behalf of the Secret Service, he attacks the statute through 
     a back door. Silberman's opinion, were it actually law, would 
     grant Starr such immense power that his role could no longer 
     be constitutional under the vision of the independent cunsel 
     the Supreme Court upheld in Morrison.
       Silberman's decision 10 years ago held that the independent 
     law unconstitutionally breached the separation of powers. The 
     theory of his lengthy and elegant decision was that the 
     Constitution vests the power of the executive branch in the 
     president and that an executive branch officer independent of 
     the president is a derogation of the president's exclusive 
     sphere. The independent counsel, as a prosceutor named by a 
     panel of judges, he reasoned, cannot constitutionally wield 
     the prosecutorial powers of the executive branch.
       The Supreme Court, however, disagreed. In Morrison, Chief 
     Justice William Rehnquist held that an independent counsel is 
     a constitutional beast known as an ``inferior officer'' of 
     the executive branch. Inferior officers, under the 
     Constitution, can be appointed by courts. And the high court 
     deemed Independent Counsel Alexia Morrison to have this 
     subordinate status because of her limited jurisdiction, her 
     being subject to removal by the attorney general under 
     certain circumstances, and her obligation to follow the 
     policies of the Department of Justice. Starr, in other words, 
     can exist constitutionally only as long as he remains such an 
     ``inferior officer.'' The moment he becomes anything grander, 
     his independence from the president would render him 
     constitutionally defective.
       Silberman understands the requirements of Morrison as well 
     as anyone. Yet his latest opinion would inflate the balloon 
     of Starr's authority well past the point where his 
     constitutionality would burst. The law gives the independent 
     counsel ``full power and independent authority to exercise 
     all investigative and prosecutorial functions and powers of 
     the Department of Justice [and] the Attorney General.'' And 
     Silberman reasons that if Starr is acting as the attorney 
     general in the areas within his mandate, Reno cannot also be 
     the attorney general for those areas. She must, therefore, 
     bow out: ``It seems clear to me then that no one in the 
     United States Government, speaking for the government, has 
     standing to oppose the Independent Counsel in [the Secret 
     Service] proceeding. . . . That, as should be apparent, means 
     that it is up to the Independent Counsel--the surrogate 
     Attorney General in this matter--to decide whether the 
     `privilege' asserted by the Secret Service as a government 
     entity should be recognized.''
       This description of Starr's power hardly sounds like an 
     inferior officer. Quite the contrary. In Silberman's vision, 
     Starr is an officer of titanic executive power, who can 
     operate not only entirely as he pleases with respect to 
     Justice Department policies (for no one can oppose him) but 
     can also decide the behavior of other parts of the executive 
     branch. If Starr really can arbitrate his own dispute with 
     the Secret Service--and, by extension, with any other federal 
     agency--he would usurp enormous executive authority. But were 
     this the true scope of his power, the constitutionality under 
     Morrison of his office would evaporate.
       Silberman's history on this issue makes his recent opinion 
     all the more astonishing. By describing Starr's power in such 
     a way as to make it inconsistent with the limited 
     independence on which the Supreme Court predicated the 
     constitutionality of the law, Silberman subtly would 
     rehabilitate his own earlier opinion striking down the law. 
     So even while Silberman bashes the integrity of the 
     administration, his logic would make its greatest adversary 
     impossible.
       The writer is a member of the editorial page staff.

       

                          ____________________