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Abstract:
Congress often exercises control over appointments to federal office by writing job qualifications and putting them directly into the statute creating the office. This practice is best examined by viewing the Appointments Clause not as a single entity, but as two related clauses that set up two very different methods of appointment: presidential nomination and Senate confirmation as the default method, and vesting in one of three authorized positions as an optional alternative method for certain types of officers. When creating an office, Congress must choose one of these methods for appointing the officer, but cannot create a hybrid method combining the two procedures. In this article, I examine the text, history, and structure of the Constitution to determine what is required by each of the two appointments processes. I conclude that statutory qualifications are consistent with the Constitution's process for vested appointments, but inconsistent with the nomination and confirmation process.

appointments, federal office, officer, constitutional law, originalism, separation of powers, presidential power

Abstract:
Congressional investigations can derail criminal prosecutions. The most famous example is the failure of the prosecution of Oliver North for his role in the Iran-Contra scandal after he testified at a congressional committee hearing about his conduct. The D.C. Circuit Court of Appeals held that much of the evidence being used in the prosecution was tainted by association with North's compelled congressional testimony and could not be used at trial.

The knowledge that congressional investigations and grants of immunity can create problems for prosecutors has not stopped either the investigations or the immunity grants. Recently, Congress granted immunity to a former Department of Justice official, Monica Goodling, and required her to testify at a congressional committee hearing about the firing of eight United States Attorneys.

This Note argues that immunity grants from congressional committees, and the federal statute that allows committees to make the grants, are unconstitutional under separation of powers doctrine. The privilege against self-incrimination requires the government to make a decision: it can either prosecute someone on criminal charges and allow him to remain silent, or it can grant immunity, compel him to testify, and give up the prosecution. The essential separation of powers question is whether Congress has the constitutional authority to grant immunity, or whether that choice is committed to the prosecutorial discretion of the executive branch.

I argue that the congressional immunity statute violates separation of powers doctrine. The statute unconstitutionally allows a committee of Congress to dictate prosecutorial decisions to the executive branch and to make changes to legal rights and duties without using the legislative process laid out in the Constitution. The decision whether or not to prosecute and the decision of which evidence should be used in pursuing a conviction are matters within executive branch control. Congress can make binding decisions in these areas only by statute.

immunity, congressional hearing, congressional testimony, separation of powers, chadha, bowsher