From Mr. Wizard's recent post, #msg-994275 , a referenced resource in http://pjmedia.com/andrewmccarthy/2017/03/03/there-is-no-such-thing-as-an-independent-counsel/ was a dissenting opinion that Justice Scalia wrote regarding the Constitutionality of a CONGRESSIONALLY appointed and CONGRESSIONALLY controlled Independent Prosecutor.
Scalia's finding - strictly UnConstitutional
In amongst the excessively verbose and obfuscating legal-sleaze bullcrap of the majority opinion (delivered by Rehnquist) and the more readable DISSENTING opinion of Justice Scalia - this para best summarizes the bottom line.
To repeat, Article II, 1, cl. 1, of the Constitution provides:
"The executive Power shall be vested in a President of the United States."
As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively:
(1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power?
(2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power?
Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.
Finally, brethren, whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good ...
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