187 F.3d 652 (D.C. Cir. 1999)
In re:  Madison Guaranty Savings& Loan Association
Division No. 94-1
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed August 18, 1999

Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, As Amended
Before:  Sentelle, Presiding Judge, Fay and Cudahy*,  Senior Circuit Judges.
Opinion of the Special Division filed Per Curiam.


1
Dissenting Opinion filed by Senior Judge Cudahy.

O R D E R

2
Pursuant to the Independent Counsel Reauthorization Act  of 1994, 28 U.S.C. §§ 591-599 (1994), the court, on its own  motion, concludes that termination of the office of Independent Counsel in the above-captioned matter is not currently  appropriate under the standard set forth in 28 U.S.C.  § 596(b)(2).


3
ON TERMINATION OF INDEPENDENT COUNSEL QUESTION

Per Curiam

4
28 U.S.C. § 596(b)(2) empowers the Division  of the Court "on its own motion or upon the request of the  Attorney General [to] terminate an office of independent  counsel ... on the ground that the investigation of all matters  within the prosecutorial jurisdiction of such independent  counsel ... have been completed or so substantially completed that it would be appropriate for the Department of Justice to complete such investigations and prosecutions."  The statute further provides that the Division should enter an appropriate order on its own motion at the end of the first two-year  period of the independent counsel investigation, the second  two-year period and thereafter at the end of each succeeding  year.  We have never interpreted this section to empower the  Division to supervise independent counsel.  Indeed, it could  not constitutionally do so.  In Morrison v. Olson, 487 U.S.  654 (1988), the Supreme Court upheld the constitutionality of  the Ethics in Government Act against a challenge that it  violated the separation of powers doctrine precisely because  the Division created under the Act "has no power to supervise  or control the activities of the counsel."  Id. at 695.  We have  consistently followed the Supreme Court's teaching on this  doctrine.  See, e.g., In re North (Walsh Show Cause Order),  10 F.3d 831, 837 (D.C. Cir., Spec. Div., 1993).  Therefore, in  the absence of a motion from the Attorney General, or a  party having standing to raise an actual case or controversy  cognizable by the court under Article III, as in Walsh Show  Cause Order, supra, we have limited our termination inquiry  to request of the independent counsel as to whether the  investigation was completed.  Where, as in Walsh Show  Cause Order, there has been a dispute concerning the completion, or even a potential dispute, we have called upon the  independent counsel for further filing.  Otherwise, we have  not engaged in conduct that might have crossed the constitutional barrier into supervision.  Nor do we intend to do so  today.


5
In the current case, as in prior instances under the statute,  the Division has inquired of the independent counsel and  received his assurance that his work is ongoing.  Having  neither the constitutional authority to supervise nor a motion  from the Attorney General, nor any Application by any other  party having standing to bring before the court an Article III  controversy, we have not looked beyond the public record to  seek support for this proposition.  In this case, the public  record offers ample support.


6
As our dissenting colleague recognizes, this investigation  has reached the fifth anniversary of the appointment, a good deal less time than that occupied by the investigation in In re  North or In re Pierce, and has been unusually productive,  having resulted, as our colleague recognizes, in the impeachment of a President, as well as twenty-four (24) indictments  and sixteen (16) convictions not alluded to by our dissenting  colleague.  While we cannot, without challenging the border  of unconstitutional supervision, inquire as to the precise dayto-day nature of the remaining work, it is quite evident that it  involves at least the production of a final report, along with  such "residual noninvestigative and nonprosecutorial authority duties relating to the filing of the Final Report," as would  normally accompany the winding-down of an investigation of  the present scope.  See In re North, 10 F.3d at 834.


7
For reasons that are not clear to us, our dissenting colleague would depart from our usual custom and commence  supervision in the case of Independent Counsel Starr as has  never been done with any other independent counsel.  Nothing known to us explains why we should visit upon this  particular independent counsel a level of supervision different  than that ever before afforded in the absence of some motion  by the Attorney General or some other party having the  standing to bring a case or controversy within the cognizance  of the court rather than an exercise in unconstitutional supervision.


8
For those reasons, we have today issued an order declining  to terminate the Office of Independent Counsel in this matter.



Notes:


*
 Senior Judge Cudahy dissents from the ORDER.


Cudahy, Senior Circuit Judge, dissenting:

9
Terminating the office of an independent counsel when his  work is completed is one of the most important obligations  with which this court is charged.  An endless investigation,  which the passivity of the majority invites, can serve no  possible goal of justice and imposes needless burdens on the  taxpayers.  The approach advocated by the majority renders  the termination provisions of the Independent Counsel Act,  28 U.S.C. § 596(b)(2), a dead letter.  The language in Morrison v. Olson, 487 U.S. 654, 695 (1988), on which the majority  relies may preclude this Division from attempting to "supervise or control" the manner in which an independent counsel  carries out his duties.  There is certainly no indication,  however, that the Supreme Court intended to nullify the  termination provisions of the statute.


10
I do seem to agree with the majority on certain preliminary  questions.  First, this Division must make a termination  decision.  Second, this decision must be based on some information.  Third, the Division can request this information  from an independent counsel.  On the questions of how much  information, what kind of information and what sort of decision the available information dictates, I emphatically disagree.  The approach advocated by the majority here is in  stark contrast to the aggressive performance of this Division  in In re North (Walsh Show Cause Order), 10 F.3d 831 (D.C.  Cir. 1993).


11
The Independent Counsel statute provides that the Division  "shall" make a determination, even if on its "own motion." 28  U.S.C. § 596(b)(2).  We need not wait for some other party to  suggest that the Division exercise its powers of termination  (as ex-President Reagan did in In re North).  The statute  also directs that our termination decision be based on specific  information:  whether an independent counsel's investigations  are "completed or so substantially completed that it would be  appropriate for the Department of Justice to complete such  investigations...."  We further know that the Division can,  without breaching any constitutional walls that separate powers, request that an independent counsel provide information  regarding the status of his investigations so that the Division  may determine whether the statutory "conditions for termination [have] been met."  In re North, 10 F.3d at 832.  In  fact, in the North case, the Division's informational requests  of Independent Counsel Lawrence Walsh took the emphatic  form of an Order to Show Cause why his investigation should  not be terminated.  See id.


12
I have sought to have this Division request specific information from the Independent Counsel about further investigative activity that he could usefully undertake and which  could not now properly be turned over to the Department of  Justice.  My efforts along these lines have been rebuffed. The only word which is available to me of the Independent  Counsel's possible investigative prospects are very general  representations that such prospects may exist, conveyed in an  informal "contact" between the Independent Counsel and the  Presiding Judge of this Division.  Despite the very high  esteem in which I hold the Presiding Judge, I do not believe  that vague intimations informally conveyed are an adequate  basis for our official action.  I strongly believe that the  Division needs more information--of the specific kind identified in the statute--in order to make its decision.  In any  event, based on what I know (or do not know) now, there is a  strong case for termination, and it would be very difficult to  persuade me otherwise.


13
This investigation is celebrating its fifth birthday, and it  has led to the impeachment of the President of the United  States followed by his acquittal by the Senate.  This is a  natural and logical point for termination, since it is not clear  how additional measures against the principal subject of the  investigation could be pursued.  Nor is there any indication  that the Independent Counsel would pursue them--whatever  they might be.  In addition, there apparently are no pending  prosecutions against lesser figures.  The past record of the  Independent Counsel in procuring indictments and convictions of others implicated in the investigation is certainly of  interest but is quite irrelevant to future prospects or legitimate needs at this stage of the process.


14
From the information at my disposal, I must conclude that  there is nothing further to be done, beyond a Final Report,  and certainly nothing that cannot properly be turned over to  the Department of Justice, as the statute provides.  Termination, of course, may be conditional on completion and  submission of a Final Report.  See In re North, supra.  I  would thereforeterminate the office of this Independent  Counsel subject to completion and submission of a Final  Report.


15
For these reasons, I respectfully dissent.

