Under the independent counsel statute, the President has executive oversight over the decision of the Attomey General's decision to appoint or not to appoint an independent counsel. Such oversight is required by Article II, Section 1 of the United States Constitution which vests federal executive power in the President and only the President. See Morrison v. Olson, 487 U.S. 654, 695-96 (1988). In order to act constitutionally and legally, then, Janet Reno must exercise her power under the law in a way that is consistent with the President's expressed views that everything that he did was legal. Thus, when Reno sounds like the President's defense counsel, rather than a prosecutor -- as evidenced by her response to the videotape of the President and John Huang under questionning by Congressman Jim Sensenbrenner on Wednesday, she is only doing her constitutional duty under Article II, Section 1.
On the other hand, because of the inordinate and rising pressure from the House Judicial Committee and other members of both houses of Congress, Janet Reno has relented that she will not consult with the President regarding her investigation of his potentially illegal activities. Instead, she has decided that she will submit her investigation to review by the Director of the FBI. In substance, Reno has stated that the President will not exercise any executive oversight of the Justice Department in its decision whether to seek the appointment of an independent counsel. Such a decision is clearly unconstitutional, and perhaps even illegal under the independent counsel act. Because she has made this decision on account of the pressure mounted against her by Congress, it lays the groundwork for a finding that Congress has usurped executive power, having not limited its role to that prescribed by the independent counsel statute. Thus, the House Judiciary Committee is handing to the President a constitutional weapon to stop an independent counsel investigation even before it has begun or, in the alternative, a constitutional defense should any criminal charges be brought against him.
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