Who Will Watch the Watchman?

QUIS CUSTODIET IPSOS CUSTODES is a Latin phrase from the Satires of poet Juvenal written in second century Rome. It translates to: who will watch the watchman? The U.S. Federal Court system had occasion recently to confront this old and difficult question.

In the case United States v. Trump, in the Southern District of Florida Federal Court, the former president was charged with concealing classified documents. The prosecutor in the case is Jack Smith. Smith was appointed to handle the case by U.S. Attorney General, Merrick Garland, pursuant to U.S. Department of Justice regulations. Trump moved to dismiss the case arguing that Smith’s appointment is unconstitutional. Federal District Court Judge, Aileen Cannon, agreed. The case raises the recursive issue of who should watch the president, and who should watch the person watching the president, and who should watch him.  

Without even returning to ancient Rome, there is ample legal history and tradition in the United States of trying to solve the watchman dilemma. That history provides necessary context for understanding Judge Cannon’s decision in the Trump case.

First, the United States Constitution separates the powers of the watchman into three, co-equal branches of government. This separation of powers model helps ensure that no single branch, or official within a single branch, accumulates too much power. Regarding the separated powers of officials, Article II, Section 2, Clause 2 of the U.S. Constitution, commonly referred to as the Appointments Clause, states that all Officers of the United States, whether principal or inferior, must be appointed by the President and confirmed by the Senate. The Appointments Clause also says that “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 Heads of Departments.” The Appointments Clause divides the power of appointment between the executive and legislative branch so that each checks and balances the power of the other.

The first major Congressional enactment under the Appointments Clause came in the 1970’s. In the 1972 presidential election, Democrat, George McGovern, ran against incumbent Republican, Richard Nixon. At the time, the Democrat campaign headquarters was in the Watergate Hotel in Washington, D.C. During the campaign, a group of men broke into the Watergate’s Democrat headquarters to steal campaign information. This scandal came to be known as simply, Watergate.

Nixon won the election. He was, therefore, the sitting President when the investigation led to his involvement in covering up the Watergate burglary. As the investigation heated up, Congress pressured the President to appoint a “special prosecutor” to investigate the executive branch’s involvement. Nixon authorized then Attorney General, Elliott Richardson, to appoint a special prosecutor. Richardson appointed Archibald Cox. When Cox insisted that Nixon turn over audio recordings from the Oval Office, Nixon ordered AG Richardson to fire Prosecutor Cox. Richardson refused, so Nixon fired Richardson. The next in line was Deputy Attorney General, William Ruckelshaus, a Hoosier. Ruckelshaus refused to fire Cox, as well. Nixon fired Ruckelshaus. This series of high-level firings is referred to as “The Saturday Night Massacre.” Eventually, Nixon did find a guy willing to fire the special prosecutor, which, at the time, he had legal authority to do.

Nevertheless, all this led to Nixon’s resignation from the Presidency. It also threw into stark relief the problem of who will watch the watchman. Generally, prosecutions flow from the Department of Justice, an executive branch agency. How does an executive branch agency fairly investigate itself, particularly when subordinates are charged with investigating superiors? And who makes sure the investigators and prosecutors are behaving properly?

Congress responded to this question in 1978 by honoring the separation of powers outlined in the Constitution and passing the Ethics in Government Act. The act provided Congressional authorization for the Attorney General to appoint an Independent Counsel to investigate and prosecute executive branch officials whenever he or she received “specific allegations” of “substantial misconduct.”

Over the years, the independent counsel statute was used in numerous investigations. Most notably: President Jimmy Carter’s Chief of Staff, Hamilton Jordan, for drug use; the investigation of President Reagan’s Iran-Contra scandal; and the many investigations of President Clinton.

In 1988, the constitutionality of the independent counsel statute was challenged. Theodore Olson, an assistant attorney general accused of lying to Congress, argued that the statute violated the separation of powers. In a 7 – 1 decision, the U.S. Supreme Court found that Congress had, under the Appointments Clause, lawfully delegated to the attorney general the authority to appoint an independent counsel.

In 1999, however, the Congressional statute authorizing the office of independent counsel expired. After the law lapsed, then Attorney General, Janet Reno, promulgated regulations through the U.S. Department of Justice for the appointment of something called “special counsels.” Since that time, the DOJ has used special counsel to investigate and prosecute several high-profile matters. These include: the Waco siege under President Clinton; the Valarie Plame affair under President Bush; Robert Mueller’s investigation of the Trump-Russia collusion allegations; John Durham’s Crossfire Hurricane investigation; David Weiss’s prosecution of Hunter Biden; Ben Hur’s investigation of President Joe Biden for retention of classified documents; and Jack Smith’s investigations of Donald Trump relating to the January 6 Capitol riots and the presidential documents case.

Since 1999, Congress has never reauthorized the independent counsel statute, nor has Congress adopted any other provisions for the appointment of independent counsel, special prosecutor, or special counsel. Instead, prosecutors in these types of cases, from Waco to now, have been operating under DOJ regulations. Department of Justice regulations, though, are not laws enacted by Congress. Absent specific Congressional authorization, department heads like the attorney general cannot appoint “Officers” of the United States. Without a Congressional grant of authority, only the President can appoint Officers. When he does so, those Officers must be approved by the Senate. Special Counsel Jack Smith was not appointed by the President, nor was he approved by the U.S. Senate. His office of special counsel was also not specifically authorized by Congress as the office of independent counsel had been. Special Counsels Smith, Meuller, Durham, Weiss and Hur, and all other special counsels going back to the 1999 expiration of the independent counsel statute, have likely been acting without constitutional authority. Judge Cannon at least thinks so. She is a Federal District Judge, so her decision will certainly be appealed to the Eleventh Circuit U.S. Court of Appeals and the U.S. Supreme Court.

The watchman question is an old and important one. Our Constitution attempts to solve the problem by separating governmental powers into three separate, co-equal branches. The separation of powers is one of the most fundamental safeguards of individual liberty we have ever devised in our attempt at self-governance. In effect, it says that there is not one watchman, but three, and that they should watch not just us, but one another. In the Trump documents case, one of the watchmen, the legislative branch, was ignored. It is up to another watchman, the Courts, to restore order among the separated powers.