Introduction

Findings

Proof of the Unconstitutionality
of the "Independent Counsel" Statute

Relevant Parts of the
Constitution of the United States
with respect to the "independent counsel"

Original Laws respecting
the Authority of the United States Attorneys
to prosecute Delinquents for Crimes

Analysis of the Constitution
with respect to the "independent counsel" Provisions
of the Ethics in Government Act

Ascertaining the True Meaning
of the Constitution with respect to
the Impeachment of Officers

The Supreme Court Opinion in Morrison v. Olson

Conclusion

Appendix:

The President's Power
to remove executive Officers

The Ethics in Government Act of 1978, enacted by the United States Congress, erected an office of "Independent Counsel" with authority and powers to investigate "potential" violations of federal criminal laws, and to prosecute such persons who may be alleged delinquents for federal crimes as the President of the United States, the Vice President of the United States, who, by the Constitution, is the President of the Senate, and certain other high officers of the United States that are referred to in the Act. The Act also created a "special court" consisting of three circuit court judges or justices (including possibly at least one retired judge), who are to be appointed by the Chief Justice of the United States Supreme Court, and forming a "division" of the United States Court of Appeals for the District of Columbia, with authority and power, upon an application from the Attorney General of the United States, to appoint an Independent Counsel for the purpose of investigating possible violations of federal criminal law by the President of the United States and/or other high officers of the federal Government, and for prosecuting such officers for alleged crimes. The Act vests in the special court, called the Special Division of the Court, the power to define the Independent Counsel's "prosecutorial jurisdiction." 28 U.S.C. §49, §591-596.

The Independent Counsel's authority under the Ethics in Government Act includes full power and independent authority (a) to exercise investigative and prosecutorial functions and powers of the Department of the Justice, the Attorney General, and all other offices of the Department, which includes any other federal prosecutor, (b) to conduct proceedings before grand juries and other investigations (like secret microphones to obtain statements from persons), (c) to engage in any litigation, including civil and criminal matters, (d) to initiate and conduct prosecutions in a court of competent jurisdiction, (e) to frame and sign indictments, (f) to handle all aspects of any case, in the name of the United States, and also (g) to consult with the United States attorney for the district in which any violations of law with respect to which the Independent Counsel is appointed was alleged to have occurred.

The said Division of the Court, upon application of the Attorney General, has appointed one Kenneth W. Starr as Independent Counsel with a defined and "expanded" prosecutorial jurisdiction which evidently includes a grand jury investigation of the current President of the United States, Mr. William J. Clinton, for possible or alleged federal crimes of perjury, subornation of perjury, obstruction of justice, and perhaps other crimes (witness tampering). Independent Counsel Starr evidently applied for, and obtained, a court order subpoenaing the President to testify before a grand jury which Mr. Starr conducts, although an article in the Washington Post reported that the subpoena was issued secretly but never formally acknowledged by the "White House", and was subsequently withdrawn. According to this report, the President has volunteered to "testify," or submit to some kind of inquisition to be conducted by the Independent Counsel Starr without the presence of the Grand Jury, but which inquisition is to be viewed by the Grand Jury nevertheless, by means of a closed circuit television transmission.

Thus, the Independent Counsel, under the supposed authority of the Ethics in Government Act, by his appointment by the "Special Division" of the Court of Appeals of the District of Columbia, and by the definition of his "prosecutorial jurisdiction," has been authorized and empowered evidently, without knowing the details of the prosecutorial jurisdiction, to conduct a criminal investigation of the President of the United States before a grand jury, to frame and present to the Grand Jury, should he determine, a bill of indictment against the President of the United States, and if the Grand Jury endorses such a bill of indictment, to prosecute the matter (the indictment) in any court of competent jurisdiction, and to handle all aspects of the case, including, by implication, causing the President to be brought to a court to answer the indictment, and conducting the trial in the Court, until and if the President is convicted. (Who then would execute the conviction? is a moot question that is not addressed in this present analysis.)

Such appears to be the authority and powers of the Attorney General, the Special Division Court, and the Independent Counsel as provided for by the Ethics in Government Act, authority and power to investigate by a grand jury inquisition officers of the United States, including the President of the United States, for possible or alleged violations of federal criminal laws, and to prosecute such officers upon an indictment.

The United States Supreme Court in Supreme Court in the case Morrison v. Olson (1988) held that the Independent Counsel provisions of the Ethics in Government Act, including the erection of a special court with power to appoint the Independent Counsel and define his prosecutorial jurisdiction, are constitutional. The basis given by the Supreme Court for their opinion is the "Appointment Clause" of Article II, Section 2 of the Constitution, particularly, an exceptional part which declares that "but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, the Courts of Law, or in the Heads of Departments." The Court in Morrison v. Olson held that this clause confers to the Congress the "discretion" power to create the office of "independent counsel," with its full power and authority to prosecute the President of the United States and other high Officers of the United States, for alleged crimes, and to vest the appointment of this "inferior Officer" in a Court of Law with the power, not only of appointing the independent counsel, but also the power to define his prosecutorial jurisdiction, even though the independent counsel's criminal prosecutorial powers are considered (by the Supreme Court) as a branch of the executive power, not of the judicial power of the Government, thus hold in effect that this supposed discretion power is independent of any other directive expressed in the Constitution.

1. The Ethics in Government Act creating the office of "independent counsel" and the special court (the "division" of the United States Court of Appeals for the District of Columbia Circuit), for appointing the independent counsel and defining his "prosecutorial jurisdiction," violates the provisions of the United States Constitution for the legal inquisition of alleged criminal behavior of officers of the United States, including the President of the Constitution, and the prosecution, as accused delinquent officers of the United States, most specifically, Article I, Section 2, which vests in the House of Representatives "the sole Power of Impeachment," and Article I, Section 3, which vests in the Senate of the United States "the sole Power to try all Impeachments."

2. The Supreme Court opinion in Morrison v. Olson , which holds that the Ethics in Government Act, which created the office of "independent counsel," and the special court for appointing the independent counsel and defining his prosecutorial jurisdiction, is constitutional, entirely neglects to address specifically the before-mentioned sections of the Constitution regarding Impeachment, and is a wrong, arbitrary, forced, and absurd construction of the Article II, Section 2 of the Constitution regarding the authority of Congress to provide for the appointment of "inferior officers." (The grounds given by the Court for its opinion are refuted later in this present analysis.) The Congress has no constitutional power to delegate to any department of the Government, or any officer, judge, or court, its power of impeachment, the impeachment of officers of the United States for high crimes and misdemeanors. Moreover, the judges of the Supreme Court, and any inferior Court which Congress may ordain and establish, are vested only with the judicial power, by Article III of the Constitution, the power of judging not also any portion of the executive power of the Government, the power of executing the laws, especially no power to appoint criminal prosecutors and define their prosecutorial jurisdiction (a blatant violation of the cherished principle of the separation of powers between the executive (prosecutor for crimes) and the judiciary (the courts of justice to administer justice). The Officers of the Courts (Judges) have no power to assume any power other than the judicial power.

Therefore, the Ethics in Government Act erecting the office of "independent counsel" and the special court, Division of the Court, and vesting the Chief Justice of the United States Supreme Court with the power of assigning the judges to the special court, is unconstitutional. The people of the United States who ordained and established the Constitution in 1787-1789 had their reasons for vesting the sole power of impeachment of Officers of the United States in the House of Representatives, and the trial of all impeachment in the Senate, and therefore, we ought to abide by the Constitution, lest we suffer hard consequences for violating the principles behind the impeachment provisions in the Constitution. (The evident reasons will be discussed later in this analysis.)

As for the alleged perjury offenses which independent counsel Kenneth Starr appears to be investigating, it bears mentioning that it has been found collaterally that the present federal law on perjury (18 U.S.C. §1621) is defective. By the law no crime of perjury is committed, if the person giving a sworn statement that is material to the issue or point in question did not "believe" that his statement is true. The present federal law on perjury is materially different than the original law made in 1790, which prescribes no such personal "belief" condition for the commission of a crime. It thus appears that the Congress has made an improper law respecting perjury, by providing perjurers an escape from a conviction of the crime of perjury if he only testifies that he "believed" that he had made no false statement, thereby protecting parties and witnesses in civil and criminal court proceedings from punitive action when stating wilfully and absolutely falsehoods pertaining to a matter that is material to the issue of a proceeding a perjury law which is plainly not in pursuance of the object of the Constitution "to establish Justice."

This aside, the question of whether or not a sworn false statement was "material" to the issue or point in question is, in respect to the impeachment of an officer of the United States, such as the President, a fact question for the House of Representatives to investigate and determine, and for the Senate to try, not for a grand jury and a Court of the United States while the person remains in office.

Proof of the Unconstitutionality
of the "Independent Counsel" Statute

In analyzing the independent counsel statute with respect to the Constitution, the following parts of the Constitution are relevant.
 
 

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 2. The House of Representatives ... shall have the sole Power of Impeachment.

Section 3. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice of the United States shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgments in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section 5. Each House [of Congress] may determine the Rules of its Proceedings, ...

Section 8. The Congress shall have Power ... To constitute Tribunals inferior to the supreme Court; ... And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section 1. The executive Power shall be vested in a President of the United States. He shall hold his Office during the Term of four Years, ...

In case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and the Vice President, declaring what Officer shall then act as President, ...

Before he enter on the Execution of his Office, he [the President] shall take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section 2. The President shall ... have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
 

Section 4. The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Section 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ...

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; ...

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, ...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself,nor be deprived of life, liberty, or property,without due process of law; ...

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
 
 
 

Original Laws respecting
the Authority of the United States Attorneys
to prosecute Delinquents for Crimes
 

An Act to establish the Judicial Courts
of the United States, September 24, 1989.

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the supreme court of the United States shall consists of a chief justice and five associate justices, ...

Section 2. ... That the United States shall be, and they hereby are divided into thirteen districts, ...

Section 3. ... That there be a court called a District Court in each of the afore mentioned districts, to consists of one judge, ...

Section 4. ... That the before mentioned districts, ..., shall be divided into three circuits, ... and that there shall be held annually in each district of said circuits two courts, which shall be called Circuit Courts, and shall consists of any two justices of the Supreme Court, and the district judge of such districts, any tow of whom shall constitute a quorum: ...

Section 7. And be it enacted, That the Supreme Court, and the district courts shall have power to appoint clerks for their respective courts, and that the clerk for each district court shall be clerk also of the circuit court in such district, ...

Section 35. And be it enacted, That ... there shall be appointed in each district a meet person learned in the law to act as attorney for the United States in such district, who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district all delinquents for crimes and offenses, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the supreme court in the district in which that court shall be holden. ... And there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments, and shall receive such compensation for his services as shall by law be provided.

An Act for the Punishment of certain Crimes against the United States. April 30, 1790.

Section 18. And be it [further] enacted, That if any person shall wilfullyand corruptly commit perjury, or shall by any means procure any person to commit corrupt and wilful perjury, on his or her oath or affirmation in any suit, controversy, matter or cause depending in any of the courts of the United States, or in any deposition taken pursuant to the laws of the United States, every person so offending, and being thereof convicted, shall be imprisoned not exceeding three years, and fined not exceeding eight hundred dollars; and shall stand in the pillory for one hour, and be thereafter rendered incapable of giving testimony in any of the courts of the United States, until such time as the judgment so given against the said offender shall be reversed.

Section 19. And be it [further] enacted, that in every presentment or indictment to be prosecuted against any person for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, or before whom the oath or affirmation was taken, ...

Analysis of the Constitution
with respect to the "independent counsel" Provisions
of the Ethics in Government Act.

1. The word impeach is plainly synonymous with the word accuse. Both words are found in the Constitution: but the word impeach is used only in connection with crimes committed by officers of the United States, not by "persons" in general who may be accused of crimes (see Article II, Section 4). The word accuse is used in connection with persons in general (Amendment VI, above quoted). From this fact it is plain from the above-quoted parts of the Constitution that the prosecution of officers of the United States for alleged crimes or misdemeanors can only be conducted by the House of Representatives, as only they are vested with the power of impeachment of persons holding office under the United States (Article I, Section 2), and moreover, the Constitution declares that the House of Representatives shall have the sole power of impeachment; so that the Congress cannot by the Constitution delegate that power to any other department or officer of the Government, as the Congress has attempted by the Ethics in Government Act.

2. The Constitution declares that the officers who are convicted by the Senate on impeachment by the House of Representatives shall be removed from office, and that the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law, meaning, plainly, that only after the person is removed from office shall he be liable and subject to criminal prosecution in the manner pertaining to all persons. (Art. I, Sec. 3, and Art. II, Sec. 4) The Constitution does not declare that officers of the United States, that is, persons holding an office of the United States, shall be liable and subject to prosecution for crimes, that is, subject to criminal prosecution, while holding such office. It is plain, therefore, by the Constitution of the United States, each officers of the United States is presumed to be faithfully executing the laws of the United States; unless he is impeached by the House of Representatives for high crimes or misdemeanors, and convicted by the Senate, with two thirds present concurring in the conviction; whereupon he shall be removed from office, and thereafter be subject to a criminal prosecution, as any other alleged criminal offender.

3. Thus, the House of Representatives is plainly the Grand Inquest of the nation that is provided in the Constitution for formally investigating information or allegations of criminal wrong-doing by the President of the United States, or other officers of the United States, that is, by any person holding and enjoying any office under the United States.

4. The Constitution provides no other process for the removal of officers of the United States, except by elections, in regards to the members of the Congress and the President and Vice President, and by appointment of a new person to an office by the President, with the advice and consent of the Senate, thereby displacing the previous appointee to that office, and by the appointment of "inferior Officers" as the Congress may provide for by law.

Ascertaining the True Meaning
of the Constitution with respect to
the Impeachment of Officers.

As the Constitution does not contain any formal definition of the terms used in the Constitution, such as the words, presentment, indictment,Grand Jury, impeachment, trial, conviction, accusation, jury, crime, misdemeanor, high crime and misdemeanors, and inferior officer, it is plainly proper and natural to refer to the contemporary treatises on law that the makers of the Constitution most certainly relied on for the business of "ordaining and establishing" the Constitution, in order to determine the meanings and usages of the words, terms, expressions, principles, and rules used in the Constitution, as most probably understood by the makers of the Constitution, and by the people who consented to it. In this way, we can more assuredly determine correctly and ascertain the true meaning of the Constitution in regards to the point in question, that is, whether the Congress, by its Article II, Section 2, authority to vest the appointment of "such inferior Officers, as they think proper," in "Courts of Law," can erect an office, and provide for the appointment of a person to that office, with the power to prosecute high, superior officers of the United States, including the President of the United States, for alleged crimes.

Plainly, Blackstone's Commentaries on the Laws of England is the foremost treatise on civil law which the Federal Convention, the Ratification Conventions, and the public used in ordaining and establishing the Constitution, along with Vattel's The Law of Nations. This point can be absolutely appreciated upon comparing the Constitution of the United States with Blackstone's Commentaries. Blackstone's treatise was the authoritative exposition of the British Constitution as well as a thorough treatise on law. As the business of the Federal Convention was to make a Constitution for the United States, it was only natural that they would refer to Blackstone's Commentaries as a guide and reference for ideas, terminology, phraseology, principles, definitions of powers, and the like (although Vattel's treatise was drawn on heavily as well), because of the former connection with Great Britain.

The Fourth Book of the Commentaries on the Laws of England, "Of Public Wrongs" is pertinent to the present analysis. In this volume Blackstone makes it clear that (1) the impeachment is the term reserved for a formal accusation by the House of Commons, the "grand inquest of the whole kingdom," of crimes committed by officers of the state, that is to say, persons "intrusted with the administration of public affairs," as distinguished from private persons, and (2) that impeachments were tried by the House of Lords, the "supreme Court of judicature in the kingdom" and "the supreme Court of criminal jurisdiction," not by any other court of justice, as the king's bench, for example (Book III, Ch. 4, p.56). It is also in Book IV that we learn of the formal definition of the terms presentment and indictment, as well as grand jury, conviction, trial by jury, and criminal prosecution, and other terms used in the Constitution of the United States in regards to the matter of criminal prosecution.

Before quoting the section of Blackstone on parliamentary impeachment, it is more natural first to quote from Chapter 23, "Of the several Modes of Prosecution" that were employed in the "regular and ordinary" proceedings for the punishment of offenders in the courts of criminal jurisdiction.
 

"The next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation. And this is either upon a previous fining of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment, or indictment.
 

I. A presentment, generally taken, is a very comprehensive term; including not only presentments properly so called, but also inquisitions of office, and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king. ... An inquisition of office is the act of a jury, summoned by the proper officer to enquire of matters relating to the crown, upon evidence laid before them. ...
 

II. An indictment is a written accusation of one of more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. ... This grand jury are previously instructed in the articles of their enquiry, by a charge form the judge who presides upon the bench. ... they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to enquire upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury however ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine,that might be applied to very oppressive purposes. ..."

Blackstone discussed in Chapter 23 two other modes of prosecution, but these need not concern us, as these concern special cases of accusation without a grand jury.

From the above passages from Blackstone, we can make several observations. First, a criminal prosecution is upon an inquisition by a grand jury, an inquest, and in the case of an indictment, a formal enquiry into the facts of the matter of an alleged crime, as preferred to the grand jury by an officer of the Government in a bill of indictment, which, when endorsed by the grand jury, constitutes a formal accusation, to be tried subsequently in a court of criminal jurisdiction.

We now turn to Chapter 19 of Book IV of Blackstone's Commentaries, "Of Courts of a Criminal Jurisdiction," which introduces the method of parliamentary impeachment. After discuss the various kinds of criminal offenses, Blackstone took up "the method of inflicting those punishments, which the law has annexed to particular offenses; ... by first, pointing out the several courts of criminal jurisdiction, wherein offenders may be prosecuted to punishment; ..." (IV, Ch. 19, p. 255). "... I shall rank them according to their dignity, and begin with the highest of all; viz. [the high court of parliament] The passage is quoted on the next page.

"The high court of parliament; which is the supreme court in the kingdom, not only for the making, but also for the execution, of laws; by the trial of great and enormous offenders, whether lords or commoners, in the method of parliamentary impeachment. As for acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties, beyond or contrary to the common law, to serve a special purpose, I speak not of them; being to all intents and purposes new laws, made pro re nata, and by no means an execution of such [laws] as are already in being. But an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law, and has been frequently put in practice; being a presentment to the most high and supreme court of criminal jurisdiction [the house of lords] by the most solemn grand inquest of the whole kingdom [the house of commons].

A commoner cannot however be impeached before the lords for any capital offence, but only for high misdemeanours: a peer may be impeached for any crime. And they usually (in case of impeachment of a peer for treason) address the crown to appoint a lord high steward, for the greater dignity and regularity of their proceedings; ... but the appointment of an high steward in such cases is not indispensably necessary, but that the house may proceed without one.
 

The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords; ... For, though in general the union of the legislative and judicial powers ought to be most carefully avoided, yet it may happen that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either dares not or cannot punish. Of these the representatives of the people, or house of commons, cannot properly judge; because their constituents are the parties injured: and can therefore only impeach. But before what court shall this impeachment be tried? Not before the ordinary tribunals, which would naturally be swayed by the authority of so powerful an accuser. Reason therefore will suggest, that this branch of the legislature, which represents the people, must bring it's charge before the other branch, which consists of the nobility, who have neither the same interests, nor the same passions as popular assemblies. ... It is proper that the nobility should judge, to insure justice to the accused; as it is proper that the people should accuse, to insure justice to the commonwealth...."

Upon comparing the Constitution of the United States with the above-quoted parts of Blackstone's Commentaries on the Laws of England, it is plain:

(a) That the makers of the Constitution intended, and the Constitution which they ordained and established, means, that the House of Representatives is the grand inquest of the nation with regard to accusations of criminal wrong doing by an officer of the United States, including the President of the United States, that is, a person who is "intrusted with the administration of public affairs."

(b) That an impeachment is a prosecution for crimes, such as felonies, a presentment by the House of Representatives to the Senate, and that the Senate is be the court to try the impeachment, a presentment being a formal written accusation of criminal wrong doing, or an indictment just as a grand jury may endorse following its inquisition, or enquiry, for the prosecution of delinquents who are not holders of office under the United States; except that an impeachment by the Constitution is a special criminal prosecution appertaining only to officers of the United States.

Observe also the employment of a "high lord steward" to preside over the proceedings of the House of Lords in trying an impeachment in the most delicate cases; and compare with the Constitution of the United States, which provides for the Chief Justice of the United States to preside in a trial of an impeachment of the President of the United States. The similarity is again striking, which further indicates the Federal Convention's intentions as to the public authority for prosecuting officers of the Government for alleged crimes.

To be sure, Blackstone's Commentaries are not the Constitution of the United States; but they do provide a perfect explanation for the provisions of the Constitution on impeachment of officers of the United States, as opposed to the presentment or indictment of persons who are not officers of the United States for alleged crimes. Also, unlike in the British Constitution, as expounded by Blackstone, the Federal Convention chose to limit the judgment of the Senate in cases of impeachment to the removal from office and disqualification to hold further office, and to subject the person who is convicted and removed from office to prosecution for crimes by the manner prescribed by law for all persons of the society, that is, inquisition and indictment by a grand jury, and trial in a Court of the United States having jurisdiction.

The evident reason for the impeachment provision of the Constitution is that the people, directly by the election of the President and Vice-President, and indirectly, through their elected President and the Senate, who together make appointments to office, are presumed to have judged the integrity of persons who were appointed to office, and found them trustworthy. (The officers of the United States, including the President, must be presumed to be faithfully executing the laws.) Therefore, the people's representatives, namely, in the House of Representatives, ought to be the sole authority to investigate allegations or facts reaching them of criminal wrong doing by an officer of the Government, and to impeach (accuse) the delinquent of committing crimes before the other House of Congress, the Senate, if they find that an officer of the United States has in fact committed a high crime or misdemeanor.

And furthermore, for the same reason the Senate, not the Supreme Court or any other Court of the United States, ought to be the sole authority to judge of any criminal breach of trust committed by the impeached officer. The mode of prosecution by the indictment of a grand jury is the regular mode of prosecution for infamous crimes, and is part of the very reason and utility for having a government, the day-to-day operation of pubic administration. But to have two small groups of un-elected persons, the Grand Jury, and the Trial Jury, or Petit Jury, chosen at random, with possible questionable qualifications, and an "independent" prosecutor, to accuse and to judge of the commission of a crime alleged to have been committed by the President of the United States, is plainly a formula for the final disintegration of constitutional government. Like winning a huge lottery prise, the persons on the grand jury are suddenly vested with a supreme power to judge of a commission of a felony crime by high officers of the government as high as the President of the United States. The reason, therefore, for the impeachment provisions in the Constitution, restricting the power of impeachment and the trial of all impeachments to the House of Representatives and the Senate, respectively, are plainly self-evident.

Furthermore, the Constitution provides for the removal from office a delinquent executive officer by action taken by the President alone, in fulfilment of the duty enjoined on him by Article II, Section 3 of the Constitution, to "take care that the laws be faithfully executed," and by his oath of office. Upon his own investigation of evidence or suspicions of criminal wrong-doing on the part of an executive officer of the United States, not of a nature of a criminal prosecution in the courts of criminal jurisdiction, determine the trustworthiness of an executive officer of the Government, and should he determine that the officer has, or probably has, committed a crime, he could and ought to remove the person from office, and nominate a new person to hold the office, and obtain the Senate's advice and consent to appoint the person. Therefore, the impeachment provision of the Constitution appears to be a dernier resort procedure provided to the Congress to remove officers for high crimes and misdemeanors in case the President does not act to remove them, or if the President himself is the object of question. (The President's power of removing executive officers of the United States is treated at the end of this Part I, as an appendix.)

The Constitution is really clear on this: That officers of the United States, including the President, can only be prosecuted for alleged crimes while in office by the House of Representatives, by means of impeachment, and by the trial by the Senate. The Constitution is founded on the republican principle that the powers of the Government are derived from the consent of the people (Declaration of Independence). The word consent is derived from what is plain to the senses. The Constitution plainly vest in the House of Representatives the power, and indeed, the "sole Power" of impeaching an officer of the United States, including the President of the United States; and the Constitution plainly provides for the possibility of a criminal prosecution of the officer of the United States after he is removed from office upon impeachment by the House of Representatives, and conviction by the Senate. The people in consenting to the Constitution, that is, by their ordaining and establishing the Constitution, could only have consented to that which is plainly declared in the Constitution; and, therefore, since the Constitution does plainly vest in the Congress a power to vest a special court and an independent counsel with a power to prosecute (to impeach) high officers of the Government, including the President of the United States, but expressly directs that the House of Representatives shall be vested with the impeachment power, the Ethics in Government Act creating the "independent counsel" and the special court is contrary to the manifest tenor of the Constitution, and plainly violates the Constitution, especially in the light of the Tenth Amendment (the powers not delegated to the United States by this Constitution shall be reserved to States or to the people.)

Also, by Article II, Section 1, the President of the United States is vested with the executive power of the Government, and the duty to take care that the laws be faithful executed. In view of this, it is patently absurd to suppose that the Congress may, without any express authorization in the Constitution, make a law providing for the prosecution of the President for alleged crimes, which could result in his conviction, and then what? Execution of judgment? Who is to execute the judgement? Who is to arrest the President and put him in prison for the punishment? For the President is vested with the executive power! Would he arrest himself? Or will it be held by the Supreme Court that a power to remove the President upon a Court judgment is an implied power?

The Congress has no power to make any law that they think proper, but only those laws "which shall be necessary and proper for carrying into Execution the foregoing Powers and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Art. I, Sec. 8). It is plainly not proper for the Congress to make a law which delegates the power of impeachment and the power of trying the impeachment, when the Congress declares that only the House of Representatives shall have the sole power of impeachment, and the Senate shall have the sole power to try all impeachments. There are no exceptions declared in the Constitution, like the following: "But they may delegate the power of impeachment to such inferior but independent officers as they think proper to establish, and they may delegate the power of trying all impeachments to a Court of Law as they think proper." Again, by the Tenth Amendment to the Constitution, "The powers not delegated to the United States by this Constitution shall be reserved to States, respectively, or to the people."

The Supreme Court Opinion in Morrison v. Olson.

The Supreme Court in Morrison v. Olson, 487 U.S. 654 (1988), held that the Ethics in Government Act and its independent counsel provisions are constitutional, on the ground, and the sole ground, that Article II, Section 2 of the Constitution vests in Congress a discretion power to vest the appointment of such inferior officers as they think proper, in the President alone, Courts of Law, or in the Heads of Departments. The Court held, in effect, that the Congress may, by this "inferior Officers" appointment clause of the Constitution, erect a special court, vest in the Chief Justice of the Supreme Court the power to "assign" judges to sit on this court, and vest this court with the power to appoint an "independent counsel" with full power to prosecute before a grand jury the President of the United States, or other high officers of the United States, for alleged crimes, and upon the grand jury endorsement of an indictment, to prosecute the matter before a court of "criminal jurisdiction" until conviction a sweeping power to prosecute that peculiar officer of the United States who is vested by the Constitution with the executive power of the Government. The Supreme Court's holding is plainly a forced construction, and an absurd one at that. The provision in the Constitution for the appointment of the officers of the United States, Article II, Section 2, is again as follows:

"... and he [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Certainly, whatever is the bound of the authority of Congress to vest the appointment of inferior officers in Courts of Law, that authority cannot be used to violate other provisions of the Constitution, in the present instance, the directive of Article I, Section 2 that "The House of Representatives ... shall have the sole Power of Impeachment," and the directive of Article I, Section 3 that "The Senate shall have the sole power to try all Impeachments." The Supreme Court opinion in Morrison v. Olson completely neglects to mention these parts of the Constitution that are plainly relevant to an independent office erected for the inquisition and prosecution of alleged criminal wrong doing by the President of the United States or other officers of the United States. Therefore, the Supreme Court opinion ought to be disregarded on that basis alone. Certainly, no executive or judicial officer, let alone an inferior officer, can legally under the Constitution assume the power to impeach the President and to prosecute the President (or any other officer of the United States) before a grand jury and in a court, as the Constitution vests the power of enquiring and accusing in regards to allegations of crimes committed by the President or other officers of the Government solely in the House of Representatives.

But let us review the Supreme Court's opinion in Morrison v. Olson more closely for its basis.

The Court held that the Special Division of the Court, as constituted by the Ethics in Government Act of Congress, and which is vested with the power of appointing an independent counsel to prosecute such high officers as the President of the United States, and defining his "prosecutorial jurisdiction," does not violate Article III of the Constitution, which vests in the Courts of the United States the judicial power only, and no powers or duties of a "nonjudicial nature," because the power to appoint the independent counsel is derived from the Article II, Section 2 "Appointment Clause," independently of Article III, and, therefore, the Courts can be given "nonjudicial" powers, such as a prosecutorial power to appoint an independent counsel (a special prosecutor) and define his "prosecutorial jurisdiction." Thus, the Supreme Court held in effect that the inferior officers appointment clause is independent of every other part of the Constitution as well as Article III, including, therefore, the impeachment clauses of the Constitution that unequivocally assign the power of impeachment solely to the House of Representatives, and the power of trying all impeachment to the Senate, and that the Congress may, therefore, exercise its power under the inferior officers clause to circumvent these impeachment power directives of the Constitution.

Thus, the Supreme Court held that the inferior officers appointment clause confers to the Congress a total discretionary power to erect offices and vest the appointment of those offices in the Courts of Law or in the Heads of Department, say a Department of War, notwithstanding any other part of the Constitution, so long as the officer has "some degree" of subordination to another officer, and so long as the office does not "unduly interfere with the role of the Executive branch." The Court held also that the Ethics in Government Act "gives" "the Executive Branch sufficient control" over the independent counsel "to ensure that the President is able to perform his constitutionally assigned duties." There is no consideration in the Court's opinion of enabling the President to exercise his constitutionally assigned powers. Also, the special court and the independent counsel, by the Ethics in Government Act, decide what is sufficient to permit the President to perform his duties. And there is no concern expressed in the Supreme Court's opinion about interfering in the President's exercise of the executive power, which, by the Constitution, is vested wholly and solely in the President. The Supreme Court expresses concern only for the "role", hence, the power, of something called the "Executive Branch," not the President of the United States, who, by the Constitution, is vested with the whole executive power. The Supreme Court opinion, therefore, is a transparent attempt to establish a new power in the government of the United States, namely, the "Executive Branch" a mass of officers with all sorts of independent powers.

The Supreme Court opinion in Morrison v. Olson exhibits no attempt by the Court to determine and ascertain the meaning of the word inferior in the exceptional clause of Article II, Section 2 for the appointment of inferior officers, no attempt to investigate the tenor of the Constitution in regards to its inferior officers appointment provision. Again, we may, and ought to, consult Blackstone's Commentaries on the Laws of England. In Chapter 9 of Book One, after treating the rights of individuals, and the powers and prerogatives of the Parliament and the Crown, Blackstone took up the matter "Of subordinate Magistrates." Said Blackstone,

"In a former chapter of these commentaries we distinguished magistrates into two kinds; supreme, or those in whom the sovereign power of the state resides; and subordinate, or those who act in an inferior secondary sphere. We have hitherto considered the former kind only,namely, the supreme legislative power or parliament, and the supreme executive power, which is the king: and are now to proceed to enquire into the rights and duties of the principal subordinate magistrates.

And herein we are not to investigate the powers and duties of his majesty's great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that there are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except that the secretaries of state are allowed the power of commitment, in order to bring offenders to trial. Neither shall I here treat of the office and authority of the lord chancellor, or the other judges of the superior courts of justice; because they will find a more proper place in the third part of these commentaries [on private wrongs]. ... But the magistrates and officers, whose rights and duties it will be proper in this chapter to consider, are such as are generally in use and have a jurisdiction and authority dispersedly throughout the kingdom: which are, principally, sheriffs; coroners; justices of the peace; constables, surveyors of highways; and overseers of the poor. In treating of all which I shall enquire into, first, their antiquity and original; next, the manner in which hey are appointed and may be removed; and, lastly, their rights and duties. And first of sheriffs. ..." (I, Ch. 9, p. 327)
 

It is significant that the word "subordinate" in the title of the Chapter is given an inferior emphasis, by the style of the printed title,

It is without doubt that the Federal Convention's idea of the word "inferior" was derived from the principle that pervades the entire system of government and society of Britain at the time of Blackstone's writing, namely, that of subordination of rank. This feature of the British Constitution is perhaps the leading most characteristic of the British form of government as expounded by Blackstone, namely, the degrees of rank and nobility, and orders of men, which pervades throughout the government, naturally enough, but also throughout the "Civil State," as barons, dukes, and knights, and the commoner, as well as the Military State." This is well described by Blackstone in his definition of the king's prerogative power in regards to conferring honours:

"IV. The king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from that wherein he is styled the fountain of justice; for here he is really the parent of them. It is impossible that government can be maintained without a due subordination of rank; that the people may know and distinguish such as are set over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions: and the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them. It has therefore intrusted with him the sole power of conferring dignities and honours, in confidence that he will bestow them upon none, but such as deserve them. And therefore all degrees of nobility, or knighthood, and other titles, are received by immediate grants from the crown; either expressed in writing, by writs or letters patent, as in the creation of peers and baronets; or by corporeal investiture, as in the creation of a simple knight.

From the same principle also arises the prerogative of erecting and disposing of offices: for honours and offices are in the nature convertible and synonymous. All offices under the crown carry in the eye of the law an honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those that are most able to execute them. ..." (I, Ch. 7, pp. 261-262)

From Blackstone, from the plain meaning of the word inferior, and the text of the Constitution, it is plain that the tenor of the Constitution is that an inferior officer is "subordinate" to an officer who is set over him: not a little bit subordinate, or in "some degree" subordinate, to use the Supreme Court's criterion, but subordinate, period! Thus, by the Constitution, the "Head" of an executive department may be authorized to appoint inferior officers, officers therefore who are subordinate to him who is the head, and under his office, or department; and, therefore, this Head of a Department is not to be vested with a power to appoint judges to any of the Circuit Courts of Appeals, for example. That is, he is not to be authorized to make "interbranch" appointments, as the Supreme Court has construed the inferior officers appointment clause of the Constitution. By the Court's theory, the Congress may vest the appointment of "inferior officers" in the head of one department, but which inferior officers may be vested with powers and authorities of an office under another department of government. The Court's forced construction of the appointment clause of the Constitution is patently absurd. By their doctrine, the Director of the Mint, or a Secretary of War, could be denominated the head of a department, and be vested with the power to appoint judges to the circuit courts of appeals, or an independent counsel to prosecute the President and the Chief Justice of the United States, and also an independent executioner, to execute the judgment of a court of criminal jurisdiction that tries the indictment of a President.

Plainly,the power granted to Congress by Article II, Section 2 with respect to inferior officers, is that courts of Law may be authorized to appoint, not judges, as the Court consists of its Judges, nor criminal prosecutors, but clerks for the Court, and other court assistants, and perhaps, legal counsellors for the Court (though the Constitution presumes that the judges are learned in law, so that they should be in need of no legal counsellors); that is, the Courts may be vested with the appointment of inferior, or subordinate, officers whose duties are to assist the judges (and juries) in the exercise of the Courts' judicial power, to assist the officers (judges) set over them.

Thus, it ought to be plain that an inferior officer is subordinate to the superior officer set over him, and resides within and under the office of the superior officer, whether it be a court of law, or an executive department of the Government. This plain meaning is confirmed by consulting the early acts of the Congress. For example, the September 24, 1789 statute, "An Act to establish the Judicial Courts of the United States." That Act established an array of courts inferior to the supreme Court of the United States; and established judges, United States attorneys, marshals, and an attorney-general for the United States (see section 35 of the Act quoted earlier, on page 9), officers either judicial or executive, but without specifying the modes of their appointments, which then necessitated that the President shall nominate, and by and with the advice and consent of the Senate, shall appoint persons to fill those several offices. But that Act provided for the Courts to appoint their clerks (see Section 7 of that Act, quoted earlier, on page 9).

Likewise, the Treasury Department. The September 2, 1789 Act to establish the Treasury Department, which reads in part:

"Section 1. Be it enacted by the Senate and House of Representatives, &c., That there shall be a Department of Treasury, in which shall be the following officers, namely: a Secretary of the Treasury, tobe deemed head of the department; a Comptroller, an Auditor, a Treasurer, a Register, and an Assistant to the Secretary of the Treasury, which assistant shall be appointed by the said Secretary. ..."

Plainly, by this act and Article II, Section 2 of the Constitution the Secretary of the Treasury, the Comptroller, the Auditor, the Treasurer, and the Register all required the President's appointment, by and with the advice and consent of the Senate; but the Assistant to the Secretary of the Treasury was regarded as an inferior officer, and subordinate "to the Secretary of the Treasury."

Likewise also with the Mint. The act of April 2, 1792 which established a Mint, declares:

Section 1. Be it enacted &c. That a mint for the purpose of a national coinage be, and the same is established; to be situate and carried on at the seat of the government of the United States, for the time being: And that for the well conducting of the business of the said mint, there shall be the following officers and person, namely, a Director, an Assayer, a Chief Coiner, an Engraver, a Treasurer.

Section 2. And be it further enacted, That the Director of the mint shall employ as many clerks, workmen, and servants, as he shall from time to time find necessary, subject to the approbation of the President of the United States.

The foregoing earlier acts of the Congress adequately confirm the tenor of the Constitution with respect to the meaning of inferior officers of Article II, Section 2.

The Supreme Court in Morrison v. Olson insists that the inferior Officers appointment clause confers to the Congress a total discretionary authority to erect the such offices as that of "independent counsel," and provide for his appointment by constituting a special Court of Law, erected solely for the purpose of appointing "special" criminal prosecutors, namely, the "independent counsels," and defining their "prosecutorial jurisdictions," all on the ground that the inferior officers appointment clause of Article II, Section 2 allows the Congress to vest the appointment of such inferior officers, "as they think proper," in Courts of Law. But the laws which the Congress shall have power to make by Article I, Section 8, must be "necessary and proper" laws, that is, the laws which the Congress may resolved to make "shall be necessary and proper." The word shall is not the word of discretionary authority. Therefore, the inferior officers clause confers no absolute discretionary power to make any law the Congress pleases, such as any law establishing offices with powers as they think proper. A law vesting the appointment of such inferior officers as they think proper in a Court of Law must, nevertheless, be both necessary and proper, and shall be made in pursuance of the Constitution (Art. VI).

The propriety of the law creating the "independent counsel" and the special court, Special Division, must be determined on the basis of the manifest tenor of the Constitution in regards to the meaning of inferior officers and the extent of the authority and power of the Congress by the inferior officers appointment clause, including an authority, if any, to override any express provisions of the Constitution, such as the provisions for impeachment of officers of the United States, and the trial of all such impeachments. The Ethics in Government Act which has created the office of independent counsel and the special court is plainly not a proper law, and not in pursuance of the Constitution, as it creates officers and courts with the power of impeachment of officers of the United States, including the President of the United States, an impeachment being a formal accusation of criminal wrong doing, and the trial of the impeachments, whereas the Constitution vests those powers solely in the Congress, and directs that the House of Representatives and the Senate solely shall have these powers.

Also, the power of the Congress under Article I, Section 8, "To constitute Tribunals inferior to the supreme Court," plainly requires that any Tribunal be subordinate to the Supreme Court, and not be vested with independent power, especially a power to appoint criminal prosecutors and define their "prosecutorial jurisdiction," that is, especially not any executive ("nonjudicial") powers, as the Supreme Court is vested only with the judicial power. As for "some degree of subordination", the independent counsel under the Special Division Court of the Ethics in Government Act effectively has total independence from the Attorney General of the United States; for if the Attorney General, by authority of the Act, should "remove" the independent counsel "for good cause", the independent counsel may be "reinstated," upon application to a District Court in a civil action. 28 U.S.C. §596. Once "reinstated," the independent counsel would be totally independent!

Finally, the Supreme Court's opinion in Morrison v. Olson that the inferior officers appointment clause of the Constitution confers a discretionary right to the Congress to provide for "interbranch" appointments of officers and courts, and vest them with authority to prosecute Officers of the United States, including the President of the United States, for alleged crimes, is, by the Constitution of the Constitution, not the law of the land, but only the opinion of the Court in the 1988 case Morrison v. Olson. It is vitally important to recall that the Supreme Court is not vested by the Constitution with an authority and power to expound the Constitution, that is, to clarify the meaning of the Constitution. The power vested in the Supreme Court is only the judicial power, which is plainly only the power of judging particular criminal and civil causes, not a power to pronounce the meaning of the Constitution. The duty of the judges is, by Article VI of the Constitution, to support the Constitution, and the judges ought to be bound by oath or affirmation to support the Constitution.

Conclusion

The Ethics in Government Act of 1978 is unconstitutional. The President of the United States, therefore, ought to, and is urged by this citizen, to regard the Supreme Court's opinion in Morrison v. Olson as not the law of the land, but on the contrary, an erroneous opinion on the Constitution, and take action to abolish the office of independent counsel and the special Court, in order to support and defend the Constitution of the United States, and cancel the planned inquisition of the President by the "independent counsel" Mr. Kenneth Starr as an illegal, unconstitutional criminal prosecution.

The President's Power to remove executive Officers

The question arises, whether or not the President by virtue of the executive power vested in him by Article I, Section 1 of the Constitution may remove an officer of the United States because of criminal behavior, neglect of duty, or even inefficiency, because the Constitution confers to the President no express removal power. However, upon examination of the Constitution, a qualified power to remove officers is plainly vested in the President by virtue of the executive power, on account of several clauses of the Constitution, as demonstrated by the following:

1. The President is enjoined by the Constitution, "he shall take Care that the Laws be faithfully executed" (Article II, Section 3). Obviously, if the President determines that a person holding an executive office shows that he is not fit to serve in that capacity, the President must take care to fill that office with a person who will faithfully execute the laws in regards to that office. That is plain by the express duty enjoined on the President by Article II, Section 3; for the executive power of the Government of the United States is vested wholly in the President, by Article II, Section 1 of the Constitution. The word take is the language of executive power, the power to perform: to take action: to take a person into custody: to remove a perform from office. In the chapter of "Subordinate Magistrates" of Blackstone's Commentaries on the Laws of England, the "first man in the county," is the sheriff, who "does all the king's business in the county," hence, is the chief executive officer of the county, but subordinate to the king, and is vested with several powers, including the power and duty:

"to pursue and take all traitors, murderers, felones, and other misdoers, and commit them to gaol [jail] for safe custody. He is also to defend his county against any of the king's enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the posse comitatus, or power of the county: which summons every person above fifteen years old, and under the degree of a peer, [who] is bound to attend upon warning, under pain of fine and imprisonment. ...

In this ministerial capacity the sheriff is bound to execute all process issuing from the king's courts of justice. In the commencement of civil causes, he is to serve the writ, to arrest, and to take bail; when the causes comes to trial, he must summon and return the jury; when it is determined, he must see the judgment of the court carried into execution. In criminal matters, he also arrests and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself." (I, Ch. 9, p. 233)

This is the nature of the power that takes.

2. The Constitution declares and directs that the judges of the Courts of the United States "shall hold their Offices during good Behaviour" (Article III, Section 1). Blackstone's Commentaries makes it clear, chapter 18, on "Preventing Offenses," that "good behaviour" means free of criminal behavior, that is, bad behavior. No such directives as to holding office during "good behaviour" is given in the Constitution for any other species of officers of the United States. The omission, therefore, is significant. All executive officers are not, by the Constitution, given such tenure as "during good behavior;" and, therefore, they each must be subject to removal by the President, should the President determine it necessary, in order to carry out his duty that "he shall take Care that the Laws be faithfully executed." That is plain.

3. A polite method of removal can be to ask for the person's resignation; otherwise, the President may issue a writ commanding the person to return his commission and relinquish his office, else a marshal of the United States may be commanded to compel his removal.

4. Article II, Section 2 vests the President with the power to fill up all vacancies that may happen during the recess of the Senate.

"The President shall have Power to fill up all VAcancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

This clause does not specify how the vacancy may happen, which plainly leaves it open for the President to remove an officer. Elsewhere in the Constitution when providing for the successor for the office of President in the event that office should become vacant, the full range of possible causes of vacancy are specified, namely, removal, death, resignation, or inability to discharge the powers and duties of the office. Therefore, had the makers of the Constitution intended to restrict the President's vacancy filling power to the cases of resignation, death, or inability, they would have so specified. Consequently, the vacancy filling power is left without such restriction, consistent with the President's duty to take care that the laws be faithfully executed.

5. The President's is under oath to "faithfully execute the Office of President of the United States, and will to the best of my Ability preserve, protect and defend the Constitution of the United States." (Article I, Section 1) Therefore, being elected to the office, and sworn to that oath, one must presume that any removals of executive officers that he may order are for carrying out his duties under the Constitution. But the removal power is not a discretionary power, but must be in the discharge of the President's duties. If the House of Representatives finds otherwise, that a President has committed a high crime and misdemeanor by corruptly removing an officer, as by obstructing the due administration of justice, when removing an officer, the House of Representatives could impeach the President for such a crime. So, the President must be prepared to justify his removals; and the House of Representatives, and the Senate in an impeachment trial, must honestly inquire and determine whether or not a President acts corruptly.

This question of the removal power could be further reviewed, including reviewing (and refuting) the Supreme Court opinion in United States v. Myers, 272 U.S. 52, 106. But the preceding analysis should be sufficient for the present treatise, which concerns other matters.

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