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Legal issues regarding the "independent counsel"

There do seem to be a lot of them. Mark Levin raises the question of whether an independent counsel is an "officer of the United States," which under the Constitution requires appointment.... which can be by a Departmental head (here, the acting AG) IF the Congress allows it. But the independent counsel statute (and the Justice Department regulations on it) expired back in 1999. The statute and regs required Justice to apply to a federal court, with the court choosing and commissioning the independent counsel. It does sound like the IC is an "officer" of the US. If every US Attorney is such an officer (indeed, one requiring Senate confirmation) it's hard to see how an IC is not.

There may be a simpler issue. An agency can't just hire someone out of the air. It has to be for a position authorized by Congress, with the Office of Personnel Management riding herd. Violate that, and it sounds like a violation of the Anti-Deficiency Act, spending money for a purpose not appropriated.

Finally, the entire rationale for having an IC is that the Department of Justice has an conflict of interest on the issue. But, looking at the team chosen, it appears a majority of them work for DoJ, and the rest (with two exceptions) formerly worked for Justice. Indeed, the list starts off with the current Deputy Solicitor General and the current head of Justice's Fraud Unit.

How can a person declare that the DoJ has a conflict of interest such that it cannot ethically handle a matter, and then hire current DoJ employees to staff it?

UPDATE: I discovered the opinion of DoJ's Office of Legal Counsel, in 2007, entitled "Officers of the United States Within the Meaning of the Appointments Clause." At pp. 114-15 it discusses independent counsel. Note that at the time there was a statutory regime covering such counsel, which provided for their appointment by a court (permissible under the Appointments Clause), without any requirement of Senate confirmation:

"At the same time, the element of continuance, properly understood, also ex- plains why an "independent counsel" under the Ethics in Government Act of 1978, 28 U.S.C. §§ 591-599 (1982 ed., Supp V), undoubtedly was an officer, even though the position was, by the nature of its duties, temporary and largely case- specific. The Court in Morrison v. Olson, 487 U.S. 654 (1988), thought it "clear that appellant is an 'officer' of the United States, not an 'employee,'" citing Buckley's discussion of this distinction based on Auffmordt and Germaine. Id. at 671 n.12. Justice Scalia in dissent agreed, adding that none of the parties disputed this, the only question being whether the counsel was a principal or inferior officer. Id. at 715. Although the position of a particular independent counsel was temporary, the position was non-personal; it was not "transient," but rather indefinite and expected to last for multiple years, with ongoing duties, the hiring of a staff, and termination only by an affirmative determination that all matters within the counsel's jurisdiction were at least substantially complete; and it was not "incidental," but rather possessed core and largely unchecked federal prosecutorial powers, effectively displacing the Attorney General and the Justice Department within the counsel's court-defined jurisdiction, which was not necessarily limited to the specific matter that had prompted his appointment. See id. at 660-64 (opinion of Court), 667-68, 671; id. at 718 (Scalia, J., dissenting)."

DoJ's own OLC opinion concludes that the present independent counsel was unconstitutionally appointed. He is an officer of the US. An officer, according to the appointments clause, must be appointed by the president, with advice and consent of the Senate, "but the 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 the Heads of Departments." The law on appointing independent counsel has expired, and without such a law the head of a department has no power to appoint.