I. Separation of Powers Prevents the Executive Branch Special Prosecutor from
Prosecuting Stone for Allegedly Making Material False Statements to the Legislative
Branch, Absent Congressional Referral.
The separation of powers between the legislative, executive and judicial branches is
fundamental to our constitutional system. Clinton v. New York, 524 U.S. 417, 450, 118 S. Ct. 2091,
2109(1998) (Kennedy, J.,) (concurring). Each branch is required to respect the scope of power of
the other two branches. Part of this mutual respect has traditionally been that the Executive Branch
not act as if on “road patrol” looking to police proceedings of the Legislative Branch for criminal
behavior. It may only act upon alleged criminal activity impacting the Legislative Branch upon
the receipt of a “referral” from Congress. As stated by former FBI Director James Comey in his
July, 2016 testimony before a House Oversight and Government Reform Committee hearing
regarding the Federal Bureau of Investigation’s (“FBI”) inquiry of the potential mishandling of
classified information:
We, out of respect for the legislative branch being a separate branch,
we do not commence investigations that focus on activities before
Congress without Congress asking us to get involved. That's a longstanding practice of the Department of Justice and the FBI. So we
don't watch on TV and say we ought to investigate that, Joe Smith
said this -- in front of the committee. It requires the committee to
say, “We think we have an issue here; would you all take a look at
it?”1
A. Prosecution Absent a Referral Invades the Investigative and Oversight Powers of
Congress in Violation of Separation of Powers.
The Department of Justice has long taken the position that prosecutorial discretion rests
solely with the Executive Branch, and that Congress cannot force the FBI to conduct an
investigation, or force the Department to institute a prosecution.2
Comity among the three coequal
branches supports the proposition that the Department cannot police Congress, and prosecute
potential violations which Congress has not referred for prosecution. To do so would allow the
Executive Branch to invade and impede Congress’ right to conduct inquiries, a key aspect of the
legislative function.
McGrain v. Daugherty, 273 U.S. 135, 174, 47 S. Ct. 319 (1927), held that “the power of
inquiry -- with process to enforce it -- is an essential and appropriate auxiliary to the legislative
function.” See also Watkins v. United States, 354 U.S. 178, 187, 77 S. Ct. 1173, 1179 (1957), and
Barenblatt v. United States, 360 U.S. 109, 111, 79 S. Ct. 1081, 1085 (1959). The investigative
power of Congress goes hand in hand with Congress’ oversight power. Numerous committees and
subcommittees of the House and Senate engage in investigative and oversight hearings on a routine
basis.3
These Congressional powers are implied from both the Article I, Section 8 enumerated
powers, as well as the necessary and proper clause. Investigation and oversight have been upheld
by a series of cases dating back to at least 1821, and have been explicitly authorized by statute
since 1946.4 To allow the Executive Branch to roam the Halls of Congress to look for prosecutable
offenses sans a referral from the Legislative Brach would violate the separation of powers doctrine.
There has been no referral by the Legislative Branch. Indeed, the alleged offense occurred nearly
two years ago and nary a word was ever said by the Committee before which the alleged false
statement was made.
II. The Appointment of the Special Counsel Violates the Appropriations Clause.
The Appropriations Clause provides: “No money shall be drawn from the Treasury, but in
Consequences of Appropriations made by Law.” Article I, Section 9, Clause 7. This Special
Counsel’s Office was not funded by monies approved by Congress; rather, the Department of
Justice is funding the investigation from an unlimited account established in 1987 to pay for
independent counsels.
This Special Counsel's Office budget and funding were not congressionally approved.
Because it was not congressionally approved, its funding is in violation of the Constitution. Since
the investigation violates a fundamental clause of the Constitution authorizing congressional
oversight, it lacks authority to investigate and prosecute Roger Stone. The law provides that the
indictment should be dismissed and the prosecution enjoined. See United States v. McIntosh, 833
F.3d 1163, 1175 (9th Cir. 2016):
The Appropriations Clause plays a critical role in the Constitution’s
separation of powers among the three branches of government and
the checks and balances between them. “Any exercise of a power
granted by the Constitution to one of the other branches of
Government is limited by a valid reservation of congressional
control over funds in the Treasury.” Id. at 425, 110 S. Ct. 2465. The
Clause has a “fundamental and comprehensive purpose … to assure
that public funds will be spent according to the letter of the difficult
judgments reached by Congress as to the common good and not
according to the individual favor of Government agents.” Id. at 427-
28, 110 S. Ct. 2465. Without it, Justice Story explained, “the
executive would possess an unbounded power over the public purse
of the nation; and might apply all its moneyed resources at his
pleasure.” Id. at 427, 110 S. Ct. 2465 (quoting 2 Joseph Story,
Commentaries on the Constitution of the United States § 1348 (3d
ed. 1858)).
A. The Independent Counsel Statute.
The Supreme Court described the appointment, investigative, and prosecutorial procedures
of the Independent Counsel statute as follows:
Title VI of the Ethics in Government Act (Title VI or the Act), 28
U.S.C. §§ 591–599 (1982 ed., Supp. V), allows for the appointment
of an “independent counsel” to investigate and, if appropriate,
prosecute certain high-ranking Government officials for violations
of federal criminal laws.
The Act requires the Attorney General, upon receipt of information
that he determines is “sufficient to constitute grounds to investigate
whether any person [covered by the Act] may have violated any
Federal criminal law,” to conduct a preliminary investigation of the
matter. When the Attorney General has completed this investigation,
or 90 days has elapsed, he is required to report to a special court (the
Special Division) created by the Act “for the purpose of appointing
independent counsels.” 28 U.S.C. § 49 (1982 ed., Supp. V).
If the Attorney General determines that “there are no reasonable
grounds to believe that further investigation is warranted,” then he
must notify the Special Division of this result. In such a case, “the
division of the court shall have no power to appoint an independent
counsel.” § 592(b)(1). If, however, the Attorney General has
determined that there are “reasonable grounds to believe that further
investigation or prosecution is warranted,” then he “shall apply to
the division of the court for the appointment of an independent
counsel.”
The Attorney General’s application to the court “shall contain
sufficient information to assist the [court] in selecting an
independent counsel and in defining that independent counsel’s
prosecutorial jurisdiction.” § 592(d). Upon receiving this
application, the Special Division “shall appoint an appropriate
independent counsel and shall define that independent counsel’s
prosecutorial jurisdiction.” § 593(b).
Morrison v. Olson, 487 U.S. 654, 660-661, 108 S.Ct. 2597, 2603(1988).
Title VI was at the time, and remained until its expiration, the only law that specifically
allowed the investigation of a sitting President and Presidential Campaign. But Congress
determined that the law should expire in 1999, and has not reenacted it. The independent counsel
was vested with “full power and independent authority to exercise all investigative and
prosecutorial functions and powers of the Department of Justice” with respect to matters within
their jurisdiction. Id. at 662; 28 U.S.C. § 594(a). The independent counsel has authority to conduct
investigations and grand jury proceedings, to obtaining and reviewing tax returns, to carrying out
prosecutions. Id.; 28 U.S.C. §§ 594 (1)-(9). The independent counsel could request assistance from
the Department in the course of the investigation, including access to materials relevant to the
relevant inquiry and necessary resources and personnel. Id.; 28 U.S.C. §594(d).
Even with controversy about the over-extension of power to and insufficient supervision
and oversight of the independent counsel, congressional oversight was in place.
Finally, the Act provides for congressional oversight of the activities
of independent counsel. An independent counsel may from time to
time send Congress statements or reports on his or her activities. §
595(a)(2). The “appropriate committees of the Congress” are given
oversight jurisdiction in regard to the official conduct of an
independent counsel, and the counsel is required by the Act to
cooperate with Congress in the exercise of this jurisdiction. §
595(a)(1). The counsel is required to inform the House of
Representatives of “substantial and credible information which [the
counsel] receives ... that may constitute grounds for an
impeachment.” § 595(c). In addition, the Act gives certain
congressional committee members the power to “request in writing
that the Attorney General apply for the appointment of an
independent counsel.” § 592(g)(1). The Attorney General is required
to respond to this request within a specified time but is not required
to accede to the request. § 592(g)(2).
Morrison, 487 U.S. at 665.
Over the years, there were concerns over whether the independent counsel possessed too
much power after the Iran-Contra and Whitewater investigations. See Exhibit 1, Special Counsel
Investigations: History, Authority, Appointment and Removal, at 8. 5 Even the then-Deputy
Attorney General Eric Holder testified: “Independent counsel are largely insulated from any
meaningful budget process, competing public duties, time limits, accountability to superiors and
identification with the traditional long-term interests of the Department of Justice. See Exhibit 2,
[t[he Independent Counsel Act, Hearing Before the Subcomm. on Commercial and Administrative
Law, on the Judiciary6
The Special Counsel statute provides a different framework but enables the Special
Counsel to investigate and prosecute without providing the direct and ongoing congressional
oversight as required by the independent counsel’s statute under § 591. Title 28 U.S.C. Sections
509, 510, and 515, passed into law in 1966, remain general provisions that do not contemplate the
appointment of a Special Counsel to investigate potential criminal actions by the President of the
United States or a Presidential Campaign.
Congress presently must subpoena a copy of the Mueller report and will receive a version
at the discretion of the Attorney General. Thus, the only oversight provided to Congress by the
Special Counsel statute and accompanying regulations would be the power to appropriate spending.
B. The Special Counsel Statute.
“There is a federal statute that governs who may litigate cases in the name of the United
States, and provides for the appointment of the Special Counsel.” United States v. Manafort, 312
F.Supp.3d 60, 68-69 (D.D.C. 2018) (Berman Jackson, J.,) (citing 28 U.S.C. § 509). As described
earlier, prior to the enactment of the special counsel statute, there was an independent counsel
statute. In re Grand Jury Investigation, 916 F.3d 1047, 1050 (D.C. Cir. 2019), aff'd, 916 F.3d 1047
(D.C. Cir. 2019) (citing 28 U.S.C. §§ 591-599 (expired)). Then as the independent counsel
provisions of the Ethics in Government Act expired in 1999, the Attorney General promulgated
the Office of the Special Counsel regulations to “replace” the Act. Id. (citing Office of Special
Counsel, 64 Fed. Reg. 37,038, 37,038 (July 9, 1999) (published at 28 C.F.R. §§ 600.1–600.10).
7
See also Manafort, 312 F.Supp.3d at 68-69 (Berman Jackson, J.,). The Independent Counsel statute
was permitted to sunset in the hopes that the use of the statute would not be used to pursue
politically partisan agendas, rather than a means of assuring accountability in government. United
States v. Manafort, 321 F. Supp. 3d 640, 647–48 (E.D. Va. 2018) (Ellis, J.,).
“The Department of Justice has promulgated a set of regulations concerning the
appointment and supervision of Special Counsel appointed pursuant to section 515.” Manafort,
312 F.Supp.3d at 69 (citing General Powers of Special Counsel, 28 C.F.R. §§ 600.1-600.10, citing
5 U.S.C. §301; 28 U.S.C. §§ 509, 510, 515-519)). “The Department published the regulations in
1999 to ‘replace the procedures set out in the Independent Counsel Reauthorization Act of 1994.’”
Id. (citation omitted). The regulations provide that a Special Counsel be appointed when the
Attorney General determines there is a criminal investigation of a person or matter is warranted,
that assigning a United States Attorney or other lawyer within the Department would present a
conflict of interest for the Department, or “other extraordinary circumstances.” Id. (citing 28 C.F.R.
§600.1)). The Special Counsel must be appointed from outside the Department, with a “reputation
for integrity and impartial decision-making,” with “appropriate experience” to conduct the specific
investigation, and understands the criminal law and the Department’s policies.” Id. (citing 28
C.F.R. §600.3)).
The Attorney General or in this case, his designee, defined the scope of the Special
Counsel’s jurisdiction. Id. (citing 28 C.F.R. § 600.4)). Once the Special Counsel’s jurisdiction has
been established, he has “full power and independent authority” to exercise all investigative and
prosecutorial functions of a United States Attorney.” Id. at 70. (citing 28 C.F.R. § 600.6)). As
opposed to the prior Independent Counsel, the Special Counsel “remains subject to oversight by
the Attorney General.” Id. “The Special Counsel's authority is not clearly greater than the
Independent Counsel's, and arguably is lesser.” In re Grand Jury Investigation, 315 F.Supp.3d at
641. What is clear, however, is that the authority given is different.
The Special Counsel should consult with the Department for “guidance with respect to
practices and procedures” within the Department or Attorney General, unless such consultation
would be “inappropriate.” Manafort, 312 F.Supp.3d at 68-69 (citing 28 C.F.R. § 600.7). The
Special Counsel is not subject to day-to-day supervision of the Attorney General; however, the
Special Counsel has to explain “any investigative or prosecutorial step” taken. Id. (citing 28 C.F.R.
§ 600.7(b)). If deemed inappropriate or unwarranted by the Attorney General, then he can order
the Special Counsel not to pursue it. Id. The Attorney General has personal enforcement power to
discipline or remove the Special Counsel. Id. Pursuant to the new statute, the Department
announced the new regulations as a means to “strike a balance between independence and
accountability in certain sensitive investigations.” Id. (citing 64 Fed. Reg. at 37,038).
As stated above, the independent counsel statute enacted congressional oversight
provisions that the special counsel statute does not. With supervision in place, Congress authorized
funding of the independent counsel’s office from a designated fund within the Department of
Justice. The permanent and indefinite independent counsel fund within the Department cannot and
was not deemed a Special Counsel fund.
Robert Mueller, III was appointed to be the Special Counsel to investigate Russian
interference with the 2016 presidential election and related matters. United States v. Manafort,
312 F.Supp.3d 60, 64 (D.D.C. 2018) (Berman Jackson, J.,); see Exhibit 3, Appointment of
Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and
Related Matters, Order No. 3915-2017.
8
The Special Counsel's Office is currently funded by the permanent, indefinite appropriation
for independent counsels. See 28 C.F.R. § 600.8 (a)(1)-(2) (budget); Exhibit 4, Dep't of Justice,
Special Counsel's Office Statement of Expenditures October 1, 2017 through March 31, 2018. In
title and actuality, Mr. Mueller is not an independent counsel. Mueller’s independence is defined
and limited by Part 600 of Title 28 of the Code of Federal Regulations. This does not authorize
independent funding at the Department’s discretion to be used for Mueller’s investigation and
prosecution.
The Government will claim it has been given authority by Congress to use the independent
counsel fund since the General Accounting Office gave its opinion that it was appropriate to do so
in a prior investigation in 2004 when a “special counsel” was appointed to investigate the Chief of
Staff of the Vice President, I. Lewis, “Scooter” Libby. See Exhibit 5, GAO B302582, SPECIAL
COUNSEL AND PERMANENT INDEFINITE APPROPRIATION.
9
Scooter Libby was investigated and prosecuted by a “special counsel” Patrick Fitzgerald.
Fitzgerald was the United States Attorney for the Northern District of Illinois and maintained that
position while he acted as special counsel prosecuting Libby. See United States v. Libby, 498
F.Supp.2d 1, 5-6 (D.D.C. 2007). Fitzgerald was not hired from outside the Department as the
Special Counsel statute and regulations require. Fitzgerald was, explicitly in his appointment, not
limited by Part 600 of the federal regulations. Mueller, however, is limited by Section 600.7(b),
which made him accountable to Deputy Attorney General Rosenstein; and now, the Attorney
General. Mueller is not an independent counsel in any way. Because Mueller is not an independent
counsel, i.e. limited by Title 28 Code of Federal Regulations Section 600, he cannot be subject to
the indefinite independent Department of Justice Fund – Congress must approve his funding. See
Exhibit 1 at 1.
The Department has equivocated on the meaning of “independent” and “special” since
enactment of Special Counsel statute. Mueller is a different type of counsel conducting this
investigation and qualitatively different than the counsel the General Accounting Office required
in 2004 when analyzing the last independent counsel, “special counsel,” Patrick Fitzgerald. See
Exhibit 1 at 2. Fitzgerald was truly independent and held the authority of the Attorney General. Id.
at 2. The GAO Report assumed that the Part 600 regulations were “not substantive” and therefore
could be waived by the Department, and were. Id. at 8. Acting Attorney General James Comey
“clarified” that Fitzgerald’s delegation of authority was “plenary.” Id. at 3. “Further, my conferral
on you of the title of ‘Special Counsel’ in this matter should not be misunderstood to suggest that
your position and authorities are defined and limited by 28 CFR Part 600.” Id. at 3 & n. 4. Mueller
is defined and limited by 28 C.F.R. Part 600.
The authority to appoint independent counsels pursuant to the
provisions of 28 U.S.C. §§ 591 et seq. expired on June 30, 1999.
However, the permanent indefinite appropriation remains available
to pay the expenses of an independent counsel (1) who was
appointed by the Special Division of the United States Court of
Appeals for the District of Columbia pursuant to the provisions of
28 U.S.C. §§ 591 et seq. whose investigation was underway when
the law expired (2) who was appointed under “other law.” Under the
expired law, a person appointed as an independent counsel could not
hold “any office of profit or trust under the United States, 28 U.S.C.
§ 593(b)(2) (2000).”
Id. at 3.
The present day Special Counsel’s relationship to the Department is qualitatively different
than the independent counsel. But, “[t]he Attorney General establishes the budget for the Special
Counsel’s investigation, and is to determine whether the investigation should continue at the end
of each fiscal year” nonetheless. In re Grand Jury, 916 F.3d at 1050 (citing 28 C.F.R. § 600.8(a)(1),
(a)(2)). The GAO Report never analyzed the effect of the post-1999 regulations on its 1994
memorandum’s analysis. It is this misuse of the permanent independent appropriation fund Stone
challenges as unconstitutional in violation of the Appropriations Clause. U.S. CONST. art. 1, § 9,
cl. 7. Because Part 600 limits the independence of the Special Counsel and the present day statute
limits Congress’s oversight role the indefinite independent counsel fund is not a resource for the
Special Counsel that can be used without violating the Appropriations Clause.
“Decisions of the Supreme Court and this Court have strictly enforced the constitutional
requirement, implemented by federal statutes, that uses of appropriated funds be authorized by
Congress.” U.S. Dept. of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1342 (D.C. Cir.
2012) (Kavanaugh, J.,) (Circuit Court) (citing U.S. CONST. art. 1, § 9, cl. 7; 31 U.S.C. § 1301 et
seq.). The Clause conveys a “straightforward and explicit command”: No money “can be paid out
of the Treasury unless it has been appropriated by an act of Congress.” Office of Personnel Mgmt.
v. Richmond, 496 U.S. 414, 424, 110 S.Ct. 2465, 2471 (1990) (citations omitted). "An
appropriation must be expressly stated; it cannot be inferred or implied. 31 U.S.C. § 1301(d) (“A
law may be construed to make an appropriation out of the Treasury ... only if the law specifically
states that an appropriation is made.”). It is well established that “a direction to pay without a
designation of the source of funds is not an appropriation.” United States House of Representatives
v. Burwell, 185 F.Supp.3d 165, 169 (D.D.C. 2016) (quoting U.S. GOV’T ACCOUNTABILITY OFFICE,
GAO-04-261SP, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW (Vol. I) at 2-17 (3d ed. 2004)10)
(hereinafter “GAO PRINCIPLES”). The inverse is also true: the designation of a source, without a
specific direction to pay, is not an appropriation. Id. The Clause protects Congress's “exclusive
power over the federal purse.” Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185
(D.C.Cir.1992). The power over the purse was one of the most important authorities allocated to
Congress in the Constitution's “necessary partition of power among the several departments.” THE
FEDERALIST NO. 51 at 320 (James Madison). The Appropriations Clause prevents Executive
Branch officers from even inadvertently obligating the Government to pay money without
statutory authority. See Richmond, 496 U.S. at 416; see also Dep't of the Air Force v. FLRA, 648
F.3d 841, 845 (D.C.Cir.2011).
A “permanent” or “continuing” appropriation, once enacted, makes funds available
indefinitely for their specified purpose; no further action by Congress is needed. Nevada v. Dep’t
of Energy, 400 F.3d 9, 13 (D.C. Cir. 2005); GAO PRINCIPLES at 2–14. A “current appropriation,”
by contrast, allows an agency to obligate funds only in the year or years for which they are
appropriated. GAO PRINCIPLES at 2–14. Current appropriations often give a particular agency,
program, or function its spending cap and thus constrain what that agency, program, or function
may do in the relevant year(s). Most current appropriations are adopted on an annual basis and
must be re-authorized for each fiscal year. Such appropriations are an integral part of our
constitutional checks and balances, insofar as they tie the Executive Branch to the Legislative
Branch via purse strings. House of Representatives, 185 F.Supp.3d at 169-170. Examples of
permanent appropriations include the Judgment Fund (31 U.S.C. § 1304(a)) and payment of
interest on the national debt (31 U.S.C. § 1305(2)). House of Representatives, 185 F.Supp.3d at n.
3.
Title 31 Section 1341, known as the Anti-Deficiency Act, makes it unlawful for
government officials to “make or authorize an expenditure or obligation exceeding an amount
available in an appropriation” or to involve the Federal Government “in a contract or obligation
for the payment of money before an appropriation is made unless authorized by law.” U.S. Dept.
of Navy, 665 F.3d at 1347 (citing 31 U.S.C. § 1341(a)(1)(A)-(B)). It is a crime to knowingly and
willfully violate it. Id. (citing 31 U.S.C. § 1350)).
The government’s reliance on approved funding without a specific authorization from
Congress comes from “. . . a permanent indefinite appropriation is established within
the Department of Justice to pay all necessary expenses of investigations and prosecutions by
independent counsel appointed pursuant to the provisions of 28 U.S.C. 591 et seq. or other law.”
Pub. L. No. 100-202, § 101(a) [title II], 101 Stat. 1329, 1329-9 (1987). Special Counsel Mueller,
however, was not appointed under the expired independent counsel statute pursuant to 28 U.S.C.
§ 591. Also, there is no “other law” because the Independent Counsel statute was not replaced with
another law, i.e. another statute enabling a special counsel to have the same role as the Independent
Counsel. The Independent Counsel statute was replaced by Department rules promulgated by
itself, not Congress. The Department must argue that the “or other law” clause survives the sunset
of Section 591, in order to support the payment of expenses without congressional approval.
Congress must have intended to maintain payment for a different and unique “special” counsel in
perpetuity while surrendering the direct oversight it had under the Section 591. The “or other law”
does not mean any law. It must mean another law that creates a similar special lawyer with similar
authority to investigate and prosecute specified matters. The Special Counsel law does not have
sufficient specificity to investigate a president or the campaign.
Because the expenditure of funds supporting the Special Counsel investigation and
prosecution violates the Appropriations Clause, an order dismissing the indictment and enjoining
the prosecution of him until Congress has made the proper constitutional appropriation is
appropriate. United States v. McIntosh, 833 F.3d 1163, 1174-1175 (9th Cir. 2016), supra. The
Appropriations Clause, U.S. Const. art. I, § 9, cl. 7, prohibits the payment of money from the
Treasury unless it has been approved by an act of Congress. Here, the Department violates the
Appropriations Clause and the maintenance of the criminal action constitutes a violation of the
separation of powers. See McIntosh, 833 F.3d at 1175.