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Special prosecutor / Independent counsel (last updated November 4, 2001) For most of the late 20th century, alleged wrongdoings by a member of the executive branch of the government were handled under the provisions of the Ethics in Government Act of 1978. The act became law in the wake of Watergate and expired on June 30, 1999 after the investigation into alleged financial wrongdoings by President Bill Clinton led to an impeachment proceeding over whether he lied about his sexual relationship with a White House intern. Under the independent counsel provisions, the attorney general would conduct a preliminary, limited investigation upon receiving specific allegations that high-ranking executive branch officials had violated federal criminal law. After 90 days, the attorney general would decide whether the charges warranted further investigation and, if deemed necessary, request a special prosecutor. This request would be heard by a special division of the Court of Appeals for the District of Columbia, consisting of three senior or retired appellate judges appointed by the Chief Justice of the United States Supreme Court. This panel of judges would select a special prosecutor, define his jurisdiction, and release reports to the public. The attorney general thus had the power to seek the appointment of a special prosecutor and could, for "extraordinary impropriety," remove him from office. These decisions were not reviewable by any court. Special prosecutors were appointed in at least 18 different cases under the provisions, as listed below. Not every case that warranted preliminary investigation resulted in a request for a special prosecutor; up to 1994, only 13 of 37 cases triggering a preliminary investigation led to a request for a special prosecutor.
 Presidential veto (last updated November 4, 2001) Under Article I, Section 7 of the constitution, the President of the United States has the authority to veto legislation passed by Congress. This power can prevent the passage of legislation opposed by the President, and the threat of a veto can shape legislation long before it reaches his desk for his signature or veto. Once passed by both houses of Congress, a bill is presented to the President of the United States for signing. He has 10 days from presentation to sign it into law or to return it with objections to Congress for reconsideration; if he does not act on the bill within 10 days, then it becomes law as if he had signed it unless Congress has already adjourned. There are two types of vetoes embedded in this process. First, the regular veto occurs when the President returns legislation to Congress; this is a qualified negative veto, which Congress can override by a two-thirds vote of both the House of Representatives and the Senate. Second, the pocket veto occurs when Congress adjourns before the 10 days are up; this is an absolute veto which Congress cannot override, and Congress must re-legislate the bill all over again in the next session. Use of both kinds of veto power has become more common over the course of the presidency. The first presidents used it sparingly and only on their belief that the legislation before them was unconstitutional: George Washington used it just twice during his two terms in office, and Andrew Jackson, the seventh president, issued 12 vetoes (5 regular, 7 pocket) during his two terms, more than all of his predecessors combined. By contrast, every president in the 20th century issued an average of several vetoes a year over the course of his tenure in office. Presidents Franklin Delano Roosevelt, Grover Cleveland, and Harry S. Truman vetoed the most legislation, but many of these vetoes were of private bills generally enacted in relation to war-related pension and other claims. Looking only at public bills, FDR and Cleveland are still the most prolific with a veto, with FDR vetoing 138 public bills during his three terms, and Cleveland a total of 102 bills during his two non-consecutive terms. Truman's count falls to 75 public-bill vetoes while he finished FDR's term and then served his own. Congress has overridden only a handful of regular vetoes from Washington to Clinton, overriding about 7.1 percent of the regular vetoes during this period. The presidents with the highest percentage of vetoes overridden are Franklin Pierce (5 out of his 9 vetoes overridden) and Andrew Johnson (15 of his 21 vetoes overridden), with Ford (12 of his 48), Nixon (7 of his 26) and Wilson (6 of his 33) in the second tier. As for recent presidents:
Presidential succession (last updated April 2001) The Twenty-fifth Amendment, created in the wake of the assassination of President John F. Kennedy in 1963, adopted by Congress in 1964, and finally ratified by the states in 1967, dictates how executive power is transferred when the chief executive is "unable to discharge" his duties. The first two sections clarify the succession from president to vice-president. The third section deals with the situation when a president voluntarily recognizes his inability to serve; the fourth deals with the removal of a president who does not or cannot recognize such inability. Under the third section, the president can voluntarily transmit a "written declaration that he is unable to discharge the powers and duties of his office," and until he transmits another written declaration to the contrary, the vice president serves as acting president with full powers and duties. Under the fourth section, the vice president and the majority of the president's Cabinet can declare the president unable to serve; the vice president then immediately serves as acting president until the president can declare that no such inability exists. The third section has never been formally invoked, despite two known opportunities - both during the Reagan presidency - in which it (or the fourth section) arguably should have been. First was the March 1981 assassination attempt in which Reagan was seriously wounded. Reagan did not sign a written declaration, nor did his staff invoke the Twenty-fifth Amendment's fourth section. For 12 hours, while Reagan was under anesthesia and in surgery, there was no one holding the powers and duties of the presidency. Even Reagan's own cabinet was confused about who held the reins of power, with Secretary of State Alexander Haig incorrectly declaring that he was "in control" and misquoting the Constitution. Second was in July 1985, when Reagan underwent colon surgery "during which time I will be briefly and temporarily incapable of discharging the constitutional powers and duties of the office of the President of the United States." Reagan specifically stated that he did not believe the Twenty-fifth Amendment to apply to "such brief and temporary periods of incapacity" like this one but that it was "my intention and direction" that Vice President George Bush discharge presidential powers upon the administration of anesthesia. Bush served as acting president for only eight hours, but many have questioned whether Reagan's letter constitutionally did transfer even temporary power and whether there was anyone legally holding the powers and duties of the presidency for that period. Thankfully, these transfers of power were temporary and did not raise any actual constitutional crises. George Bush, when he became president, made more formal plans for the transfer of power if necessary, and Bill Clinton did the same when he took office. Still, some have argued that better mechanisms are necessary to handle future scenarios. Source: Kenneth Crispell and Carlos Gomez, Hidden Illness in the White House, Duke University Press, 1988. Continuity of Government, Cheney's Whereabouts (last updated August 23, 2002) (back to top) Following the September 11 attacks, Vice-President Dick Cheney was often out of the public eye, officially at an undisclosed, secure location. Various reasons were given for the absence and much speculation ensued, but President George W. Bush himself acknowledged on March 1, 2002 that Cheney had been at a secure location as part of the "continuity of operations" plan that the executive branch has developed over the past few decades. Since the Cold War, the executive branch of the federal government has developed a "continuity of operations" plan, sometimes known as a "continuity of government" plan, to ensure that the federal government would maintain control in the event of something such as a nuclear attack on Washington DC. President Harry S. Truman issued the first directive ordering the development of such plans, and President Ronald Reagan initiated the modern era of such planning with a presidential directive in 1985. In 1998, the Federal Emergency Management Agency (FEMA) was designated as the agency in charge of developing the continuity of operations plan. Since September 11, about 100 civilian managers have been living and working at two principal locations on the East Coast, the locations of which have not been officially disclosed. The facilities are said to take advantage of local geological features ensuring security, and to be well-stocked but in need of updating. One such facility, according to the Federation of American Scientists, is in West Virginia at Mount Weather. The site reportedly includes an underground bunker containing a hospital, dining and recreation areas, and a radio and television studio, and can sustain thousands of people if necessary. Dick Cheney's extended absences in the first months following September 11 were due to his participation in the COP plan and the need to maintain a line of presidential succession in the event of Bush's death, but were not fully explained at the time. On October 10, 2001, White House spokesman Ari Fleischer said that Cheney was at a secure location "for security purposes." Cheney himself joked about his whereabouts at an October 18 charity dinner, denying that he had been sent on a secret mission to Afghanistan and saying that "we have not actually been living in a cave. And, no, I did not sneak out for cosmetic surgery, although I'm not prepared to rule that out as an option." Sources: Barton Gellman and Susan Schmidt, Shadow government is at work in secret, Washington Post, March 1, 2002. The Federal Emergency Management Agency is on-line here. The Federation of American Scientists has information about the "continuity of government" plan here and about the Mount Weather facility here. Ari Fleischer's October 10, 2001 press briefing is on-line here, Vice-President Cheney's October 18, 2001 remarks are on-line here, and President Bush's March 1, 2001 remarks are on-line here. Impeachment (last updated April 2001) Given the events of 1999 and 2000, the impeachment procedure is all too familiar: the House acts as prosecutor and officially impeaches a president, judge, or other federal official for committing "high crimes and misdemeanors," and then the Senate acts as judge and jury in deciding whether to convict. The harder question is what constitutes "high crimes and misdemeanors." Scholars have shown that the Framers did not spend much debating the phrase. The Framers originally started with treason and bribery and then could not decide whether they should add "maladministration"; they decided that phrase was too vague and settled on "high crimes and misdemeanors." It should be noted that "high misdemeanors" was a phrase with precedent; it was used when a British official was accused in 1786 (just before the Framers began their work) of "gross maladministration, corruption in office, and cruelty toward the people of India." Some have argued that "high crimes and misdemeanors" should be taken as the British had, as conduct damaging to the State, such as misapplication of funds, abuse of official power, neglect of duty, corruption, and betrayal of trust. Others focus exclusively on the text in the constitution and conclude that the only impeachable offenses are treason, bribery, and violating the oath of office. A broader view that was central to the impeachment of President Bill Clinton is that any indictable offense or crime is impeachable. An even broader view was put forth by then-Congressman Gerald Ford in 1970 when he sought unsuccessfully to impeach Justice William Douglas on conflict-of-interest charges, that "an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history." Under this view, a president could be impeached for anything at all. There is no way to settle the debate decisively. The United States Supreme Court decided in the 1993 case of District Judge Walter Nixon v. United States that this is a matter solely for Congress, and that it could not review any decision to impeach or convict. Impeachment and conviction are political decisions, not legal ones; Ford in a very real way is right. The House of Representatives has impeached 16 people over the course of American history: two presidents (Andrew Johnson and Bill Clinton), 12 judges (including a Supreme Court justice), a senator, and a cabinet member. The Senate convicted seven of the 16 (all 7 were judges); because the Senate acts as both judge and jury, it considers whether it has jurisdiction and whether the accused crime is worthy of impeachment (in one case, the Senate voted it did not have jurisdiction over the case), as well as whether the accused is guilty. Of the seven judges who were convicted and removed from office, their crimes include perjury, accepting bribes, and inciting revolt and rebellion just before the Civil War. Perhaps most interesting is the 1803 impeachment and conviction of District Judge John Pickering, who was impeached for an unpopular decision and for "being a man of loose morals and intemperate habits," appearing in court "in a state of total intoxication ... and frequently, in a most profane and indecent manner, invok[ing]the name of the Supreme Bring, to the evil example of the good citizens of the United States," and other "high misdemeanors, disgraceful to his own character as a judge, and degrading to the honor and dignity of the United States." Sources: Impeachment: A Constitutional Primer, by Jason J. Vicente, Texas Review of Law and Politics, Fall 1998 (3 Tex. Rev. Law & Pol. 117). Constitutional Grounds for Presidential Impeachment, by the House Committee on the Judiciary, 93d Cong. "Before the trial, ask the pivotal question," by Jack Rakove, New York Times, January 12, 1999. "What's an impeachable offense? Past is fuzzy," by William Glaberson, New York Times, September 12, 1998. Presidential pardons (last updated June 24, 2001) Under Article 2 of the US Constitution, the President has the constitutional power to "grant reprieves and pardons for offences against the United States." Pardons are considered an official statement of forgiveness for the commission of a federal crime and restore basic civil rights, and do not officially connote innocence. Commutations of sentence are the reduction of a sentence. Most Presidents give hundreds of pardons or commutations of sentences while in office. According to a study conducted by Professor P.S. Ruckman (available here), Bill Clinton did 456 clemency actions, George Bush did 77 actions, and Ronald Reagan did 406. FDR did the most of any president, with 3,687 clemency actions, and Bush did the least with his 77. Most pardon applications are filed with the Office of the Pardon Attorney in the Department of Justice. The Pardon Attorney, currently Roger Adams, begins its review by contacting the United States Probation Office for the petitioner's compliance with court supervision. The FBI provides factual information about the petitioner, and the Pardon Attorney contacts the United States Attorney for the district where the petitioner was convicted or the Department of Justice for more information. The Pardon Attorney's Office makes a report and recommendation, which is then reviewed by the Deputy Attorney General before going to the President for a final decision. Just before leaving office, Clinton sparked widespread controversy by pardoning two fugitives wanted on charges of insider trading, Marc Rich and Pincus Green. These pardons were sent directly to Clinton and were not reviewed by the Pardon Attorney's Office until Clinton's second-to-last day in office. Many grants of pardon have been controversial. On Christmas Eve 1992, just weeks before leaving office, George Bush pardoned former Defense Secretary Caspar Weinberger and six other former Reagan administration officials for their involvement with the Iran-contra scandal mere days before Weinberger was to stand trial on perjury charges. In 1974, Gerald Ford pardoned Richard Nixon who had resigned from the Presidency due to the Watergate scandal. In 1977, Jimmy Carter proclaimed amnesty for those who had evaded the draft during the Vietnam War, extending a more limited amnesty offered by Ford. In September 1979, Carter also commuted the sentences of Oscar Collazo, a Puerto Rican nationalist who had tried to kill Truman in 1950, and others who had fired on the House of Representatives in 1954, apparently to get Cuba to release U.S. nationals held prisoner at the time. Sources: Statement of Pardon Attorney Roger Adams before the Senate Committee on the Judiciary, February 14, 2001, available here. The Jurist's section on presidential pardons and Professor Pittman's list, available here. Recess appointments (last updated July 2001) Usually, under Article II section 2 of the Constitution, any presidential nominations of judges, Cabinet secretaries, ambassadors, and high-level federal officials, must be approved by the Senate before taking effect. However, the Constitution's very next clause does allow an exception to this process. It reads: "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 the next session." People appointed in such a way will serve until the end of the next session (each Congress is split into two sessions lasting about one year each) and then generally must be confirmed by the Senate in order to continue holding the position. Even Supreme Court justices can be appointed in this way; 15 have served on the high bench in the course of American history, with the most recent being Potter Stewart in 1958. Originally a measure to allow the President to fill vacancies during the many months that the Senate would be in recess back when long-distance travel was difficult, the recess-appointment power has also become a way for presidents to appoint people whose nominations have been controversial for one reason or another. One self-imposed limitation on this power has been a general practice since the 1980s by which the president informs the Senate before a recess of any upcoming recess appointments; the president generally holds off on nominees who turn out to be controversial until after the recess. During Bill Clinton's two terms, several recess appointments were controversial. In December 1997, Clinton apparently considered giving Bill Lann Lee a recess appointment as assistant attorney general for civil rights, but then appointed him to the position in an acting capacity instead. In June 1999, Clinton gave James Hormel a recess appointment as Ambassador to Luxembourg after Hormel's nomination was held up due to objections based on Hormel being gay. Shortly before leaving office, Clinton gave a recess appointment to Roger Gregory as a judge on the Fourth Circuit Court of Appeals. Clinton made about 140 recess appointments during his two terms. George Bush made about 80, Reagan made about 240, and Carter made about 70 during their terms in office. Sources: Congressional Research Service, Recess Appointments made by President Clinton, dated January 26, 2001. CNN, Capitol Questions with Ilona Nickels, available on-line here. Filibusters (last updated July 2001) A congressional privilege that takes its name from 18th-century pirates who would hold people hostage for long periods of time, the Senate filibuster stems from two sources: first, the Senate's lack of restrictions on debate and second, the limited number of days in a two-year legislative session (about 300 a session in the second half of the 20th century). Taking advantage of the tension therein, a single senator (or more likely, a small group of senators taking turns) can hold up all other Senate business by refusing to let a pending piece of legislation go to a vote. When this happens, those supporting the filibustered piece of legislation must decide if it is worth all the time and business lost until the filibustering senators give up. Thus, filibustering senators can force the withdrawal of legislation they do not support even if they are in the minority. Because the only restriction on Senate debate is vague (under Rule XIX, a Senator is limited to two speeches per question per day, but since a "legislative day" in the Senate lasts until the Senate adjourns, it is unclear how to apply this limit in reality), the only way to override a filibuster is through Senate Rule XXII, which allows the Senate to invoke cloture and thus cut off debate. However, this provision has several limitations. First, cloture cannot be voted upon until two days after it is proposed, and second, a supermajority of the Senate (2/3 of those senators present and voting) is required. Third, cloture if successfully invoked still does not immediately cut off debate; Rule XXII allows for 30 more hours of debate before a vote on the legislation is finally called. Thus, even an filibuster ended due to cloture will still cost more than three days of Senate business. Nonetheless, the modern version of Rule XII is more lenient than its predecessors. Adopted in 1917, Rule XXII originally required a two-third supermajority of all senators to successfully invoke cloture and allowed for one more hour per senator for debate before a vote could be taken. The reduced threshold of the modern Rule XXII has made attempts to invoke cloture more common and more likely to succeed; a study by the Brookings Institute found that there were 19 attempts from 1917 to 1949 and that only 21 percent succeeded, and that there were 284 attempts from 1975 to 1994 and 41 percent succeeded. Proponents of the filibuster argue that the filibuster helps moderate extreme legislation, blocks passage of measures opposed by a popular majority, and is part of the culture of the Senate. Others, such as Sarah A. Binder and Steven S. Smith in their book "Politics or Principle?," however, say that it allows a small group of senators to override popular will and that it was never intended by the Founding Fathers. Perhaps the most significant use of the filibuster in the 20th century was in opposing civil rights legislation. Southern Democrats and conservative Republicans used the filibuster to derail civil rights litigation several times in the 1950s and 1960s; Strom Thurmond holds the record for the longest filibuster, speaking for 24 hours and 18 minutes to block the 1957 Civil Rights Act, which in a much diluted form ultimately did go to a vote and become law. Including fictional accounts, perhaps the most famous example of a filibuster still remains the climax of the 1939 Frank Capra film Mr. Smith Goes to Washington, in which Senator Jefferson Smith (played by Jimmy Stewart) talks for more than 23 hours against a corrupt political boss before collapsing on the Senate floor. Some senators have proposed reform at various times. Most recently, in January 1995, when Republicans took control of the Senate for the first time in years, two Democratic Senators, Tom Harkin of Iowa and future Vice-Presidential candidate Joseph I. Lieberman of Connecticut, proposed changing the filibuster rules so that a simple majority could end debate. Bob Dole, then the new Majority Leader, rejected the proposal, mindful of a time when the Republicans would no longer hold a majority and would need tactics such as a filibuster to block legislation. Sources: Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering in the United States Senate, Brookings Institution (1996). Charles and Barbara Whalen, The Longest Debate: A legislative history of the 1964 Civil Rights Act (1985). The Senate website also has pages discussing debate, filibusters, and the effectiveness of delaying the process. Contempt of Congress (last updated 7/3/01) Congress has investigative powers implicit in its legislative powers. These powers are how Congress can conduct public hearings into such controversies as Watergate, Whitewater, Iran-Contra, and the Teapot Dome scandals of the 1920s, when much of the legal issues surrounding the investigative power was fleshed out. Congress's main instrument of investigation is its subpoena power. Refusing to comply with a congressional subpoena can give rise to a contempt proceeding under three kinds of contempt proceedings. The most relevant one for modern practice is the statutory contempt power codified at 2 U.S.C. Section 192 and 194, under which a person who has been subpoenaed to testify or produce documents before the House or Senate or a committee and fails to do so can be cited with contempt and then prosecuted for criminal charges by the U.S. Attorney for the District of Columbia. A contempt citation must be approved by the appropriate committee and by the full House or Senate; it is unclear whether the U.S. Attorney is obligated to prosecute or not. If convicted for statutory contempt of Congress, which is a misdemeanor charge, an individual is subject to a fine of up to $1,000 and/or imprisonment for up to one year. In the past two decades, House and Senate committees have initiated statutory contempt proceedings against several individuals such as Attorney General Janet Reno and an alleged dealer in fetal tissues. Only two, however, have reached the level of a vote by the full House or Senate. In 1982, the full House cited for contempt Environmental Protection Agency director Ann Burford for her refusal to provide documents as ordered by subpoena; the U.S. Attorney, however, declined to prosecute and the White House and the House reached an agreement allowing access to the papers. Almost two decades later, in October 2000, the House Resources Committee approved a contempt of Congress resolution against the Project On Government Oversight, a non-profit whistle-blower group that had refused to answer questions relating to its investigations into the oil industry's royalty payments for drilling on federal and Indian lands and some related lawsuits; the resolution was withdrawn from consideration by the full House due to its improbable success. In addition, under the inherent contempt powers of the House or Senate, either house can order an individual brought in, tried before the body, and then imprisoned in the Capitol jail either for punishment or until the individual complies with the subpoena; this is considered a cumbersome process and has not been used in more than half a century. The Senate can also apply to have a federal court issue a subpoena; if someone refuses to comply with the court-ordered subpoena, that person can be tried for contempt of court and given civil fines designed to coerce compliance. Sources: Morton Rosenberg, Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry, April 7, 1995, available on-line here. The Project On Government Oversight's premature statement on the contempt of Congress vote (the statement was written as if the vote had gone through, when it was withdrawn due to its probable failure) is available on-line here. Term limits (last updated September 3, 2002) (back to top) Spurred by widespread frustration with so-called "career politicians," many states and cities enacted term-limit measures in the 1990s and saw these measures begin to take effect in the late 1990s. Accordingly, several hundred elected officials have now been rendered ineligible from continuing their service, the most notable probably being New York City Mayor Rudolph Giuliani, who won newfound acclaim in the wake of the September 2001 attacks but was barred from serving a third consecutive term. Term-limit advocates say that such measures prevent "career politicians," deter corruption, and open the door for more minorities and women to be elected to office. Critics, on the other hand, say that such measures ensure too much turnover and put public affairs into the hands of those with little or no political experience. In any event, term limits are now in effect in about one quarter of the states' legislatures, about three-quarters of the state's governors, and about 3,000 cities, and U.S. presidents are barred by the Constitution's Twenty-Second Amendment from serving more than two terms (see text here). However, barring a similar constitutional amendment, term limits are not permissible when applied to the U.S. House of Representatives or Senate. |
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