Scalia's Lone Dissent in Morrison v. Olson Saw the Independent Counsel Mess

Here is a government job with no boss. The holder is appointed by judges, paid by the Treasury, removable only for cause, and given one assignment: investigate a single named person until something turns up. There is no budget cap worth mentioning, no competing priorities, no supervisor who must weigh whether this is the best use of a prosecutor's time. If that sounds like a prescription for restraint, you have never met a human being.

That job existed in the United States, with a lapse from 1992 to 1994, from the Ethics in Government Act of 1978 until its final expiration in 1999. In the one case that tested its constitutionality, seven justices said it was fine and one said it was not. History has been unkind to the seven. I want to walk through why the one was right, in the language of the Constitution and not just in the language of regret.

The Law: Watergate's Offspring

The law came out of Watergate. In October 1973, during what became known as the Saturday Night Massacre, President Nixon ordered the firing of Special Prosecutor Archibald Cox, and Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than carry out the order. The public reaction was that no president should be able to fire the person investigating him, and that an investigation of the executive branch could not be left entirely to the executive branch.

Congress responded with Title VI of the Ethics in Government Act of 1978. The statute created a procedure: when the Attorney General received specific information that a high-ranking executive official had committed a federal crime, he was to conduct a preliminary investigation and then report to a special division of the U.S. Court of Appeals for the D.C. Circuit. The division, a panel of three judges, would appoint an "independent counsel" with full power to investigate and prosecute. The Attorney General could remove the counsel only for "good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties." And the counsel's work continued until the counsel said it was done, or until the court agreed.

Notice who is missing from that description. The President, who holds the executive power, does not pick the prosecutor, does not supervise the prosecutor, and cannot fire the prosecutor except by satisfying a court that there is cause. The Congress passes the law. The judges choose the counsel. The executive, whose job it is to prosecute crimes, is left with a seat at the margin.

The Case: Morrison v. Olson

The challenge arose from a fight between the House Judiciary Committee and the Environmental Protection Agency in the early 1980s over documents relating to the Superfund program. The administration asserted executive privilege, and the dispute produced House subpoenas in 1982. The Judiciary Committee later investigated whether Theodore Olson, who had testified in 1983 as an assistant attorney general in the Office of Legal Counsel, had given misleading testimony. The committee's chairman asked the Attorney General to seek an independent counsel, the Attorney General applied to the special division, which appointed Alexia Morrison, and Olson and others refused to comply with her subpoenas, arguing that the statute was unconstitutional.

The Supreme Court decided Morrison v. Olson on June 29, 1988. The vote was 7 to 1. Justice Kennedy did not participate. Chief Justice Rehnquist wrote for the Court, and Justice Scalia dissented alone.

The majority made three moves. First, it held that the independent counsel was an "inferior officer" for purposes of the Appointments Clause, which allows Congress to vest the appointment of inferior officers in "the Courts of Law." The reasoning was that the counsel was removable by the Attorney General, had limited jurisdiction, and had a limited tenure. Second, it held that the appointment by the special division did not violate the separation of powers. Third, it held that the good-cause removal restriction did not unduly interfere with the President's ability to carry out his constitutional duties. The test, as the majority put it, was not whether the officer was "purely executive" but whether the removal restriction impeded the President's ability to perform his constitutional duty.

On this reading, the Constitution was a collection of balances to be weighed case by case. Hold that thought.

The Dissent: All of the Executive Power

Scalia's dissent is the reason the case is still taught. He began with the text. Article II, Section 1 begins: "The executive Power shall be vested in a President of the United States of America." Scalia pointed out that the Constitution does not say "some of the executive power" or "the executive power, except for the parts Congress would prefer to assign elsewhere." It says the executive power, and the power to prosecute federal crimes is among the most central of executive powers. The majority asked whether the President retained "sufficient control"; Scalia asked whether the power to prosecute was executive at all, and whether the statute took exclusive control of it from the President. A prosecutor who is not under the President's supervision is exercising a power the Constitution vested in the President, and the Constitution does not say Congress may redistribute it when doing so seems prudent.

The heart of his dissent was an observation about how constitutional erosion happens, and I quote it exactly:

Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

He meant that this case was not subtle. The law removed from the President the power to control an investigation of the executive branch, which is the most fundamental power a chief executive has. The majority's balancing test, Scalia argued, was not a rule but an invitation to judge by instinct. He charged the Court with substituting a vague multi-factor weighing for a clear structural rule, when the Founders had chosen structure precisely because they distrusted a government that depended on the good sense of its officials.

He also made a point about human nature that the majority had little interest in. A normal prosecutor chooses among cases. He asks which defendants and which crimes deserve scarce resources. An independent counsel, by contrast, starts with a person and looks for a crime. Scalia argued that this inverts the ordinary logic of prosecution and, because the counsel's whole career depends on the one case, that it tempts him to find something. That is not an accusation against the people who served. It is an observation about incentives. Give anyone a single target, unlimited time and an open budget, and the pressure to produce something is the pressure of the job.

The Steelman: Who Investigates the Investigators?

The best defense of the majority deserves to be stated at full strength. The Constitution does not tell us that the executive may prosecute his own subordinates and himself. The Founders knew how much corruption can flow from the top. The Attorney General serves at the pleasure of the President, and a Justice Department asked to investigate the President's close associates has an obvious conflict of interest. Watergate showed what that conflict looks like in practice. Someone has to be able to investigate the people at the top, and that someone must be independent enough to follow the evidence. The Constitution has no explicit rule against a prosecutor appointed by judges, and Article II, Section 2 does allow Congress to vest the appointment of inferior officers in the courts. The majority did not invent the appointment mechanism. It read the Appointments Clause as written.

The problem of conflict is real, and every conservative who is honest about the executive branch should say so. The answer is not to pretend the problem is imaginary.

The Answer: Three Points

One: the Constitution already has a remedy for an executive who corrupts the law, and it is not a prosecutor. It is impeachment. Article II, Section 4 provides that the President, Vice President and all civil officers "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." The House investigates. The Senate tries. That is the Founders' design for holding the top of the executive branch accountable, and it places the responsibility on elected officials who answer to the voters, where a prosecutor appointed by three judges does not.

Two: for officers below the top, the answer is the ordinary criminal process, supervised by officials who can be held accountable. The Attorney General can be questioned by Congress. The President can be defeated at the ballot box. A prosecutor with no supervisor is accountable to no one, and an official accountable to no one will, over time, behave as if he is accountable to no one. That was Scalia's point, and the history that followed bears it out.

Three: the Court's balancing test was an invitation to the problem it claimed to solve. If the question is whether the President retains "enough" control, the answer depends on who is asking. Scalia wanted a rule. The majority gave the country a standard. And standards, unlike rules, work best for those who are on the winning side of them. We looked at what happens when courts convert structure into a weighing exercise in Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not, and the Founders' own account of why the judiciary should be the weakest branch is in Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?.

What Followed

The counsels who served under the statute did not all behave alike, and fairness requires saying so. Lawrence Walsh investigated the Iran-Contra affair from 1986 and issued a final report in 1993. Donald Smaltz investigated Agriculture Secretary Mike Espy and secured no convictions of him; Espy was acquitted in 1998. And Kenneth Starr, who had been appointed independent counsel in 1994 to look into the Whitewater land deal, ended up delivering a report in 1998 on the President's relationship with a White House intern, which led to the House's impeachment of President Clinton that December and his acquittal by the Senate in February 1999.

Each of those investigations produced arguments on both sides about whether they were warranted. But notice the common feature. In each, the investigation grew well beyond the matter that triggered it, ran for years, and became a national political event. The structure invited exactly that, because the counsel had no one telling him when to stop.

The Bipartisan Verdict

Here is the part of the story that deserves more attention than it gets. The statute had a sunset provision, which meant it expired unless Congress reauthorized it. Congress had renewed it in 1983 and 1987, let it lapse in 1992, and revived it in 1994. In 1999, it did not renew it again. The law's authority to appoint new counsels expired on June 30, 1999.

Both parties had come to dislike it. Democrats, who had watched the Starr investigation consume the Clinton years, had little enthusiasm for renewal. Republicans, who had defended the law when it was aimed at Reagan's White House, had also soured on it. Attorney General Janet Reno, who had supported the law in 1993, opposed continuing it in 1999 testimony, and the support that had sustained the law for two decades was gone. When a statute that two parties wrote together is let go by both, it tells you something that no brief or opinion can: the people who lived with the thing concluded that Scalia had been right.

Afterward, the Justice Department kept a regulation, issued in 1999, that allows the Attorney General to appoint a special counsel from outside the government when a conflict of interest requires it. That system keeps the prosecutor inside the executive branch, answerable to the Attorney General, who is answerable to the President, who is answerable to the voters. It is not a perfect answer, but it is the right kind of answer: a remedy that works through the constitutional chain of command rather than around it.

Why This Still Matters

Every few years, someone proposes bringing back the independent counsel in some form, usually when the party that proposes it is not in the White House. Conservatives should remember what Scalia understood: the structure that looks like a shield in the other party's hands will be a sword in the hands of the next president's enemies. The Founders knew the danger of laws that bend to the day's politics, and wrote the separation of powers to hold when the temperature is high, not just when it is low.

If you want to see the same principle applied to a modern fight over prosecutors and politics, read Lawfare Defined, and How to Tell a Prosecution From a Campaign Tactic, and for the broader theory of who holds what power, Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not and The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses. The text of Article II is on the Constitution page.

The case in brief

1. The Ethics in Government Act of 1978 created an independent counsel appointed by judges, removable only for good cause, and answerable to no one in the executive branch.
2. In Morrison v. Olson (1988), the Court upheld it 7 to 1, using a balancing test. Scalia dissented alone on the ground that Article II vests all of the executive power in the President.
3. The Constitution already supplies a remedy for a corrupt executive, which is impeachment, and a remedy for subordinates, which is supervised prosecution.
4. The history that followed, from Iran-Contra to Whitewater, bore out Scalia's point about the incentives of a prosecutor with one target.
5. Congress let the law lapse in 1999 with support from both parties, and the Justice Department's special counsel regulations keep the prosecutor inside the chain of command.

What you can do: read Article II, Section 1 and Section 4 in the text of the Constitution, then read the first three pages of Scalia's dissent, and decide for yourself which reading of the Vesting Clause holds up.