Independent Counsels and the Supreme Court

Morrison v. Olson is a decision handed down by the Supreme Court in 1988 upholding the constitutionality of the independent counsel provisions in the Ethics in Government Act. Associate Justice Antonin Scalia famously dissented in the case, noting that prosecution is exclusively the prerogative of the Executive Branch under the authority of the President.

 

FACT: The independent counsel law considered in Morrison lapsed nearly twenty years ago.

-          With no appetite to renew the authorities of an unchecked prosecutor, Congress allowed the statute to lapse in 1999. This was the bipartisan consensus in Congress at the time.

-          Then-Deputy Attorney General Eric Holder testified before Congress that the law was “too flawed to be renewed.”

-          In another congressional hearing, Attorney General Janet Reno said, “I have come to believe—after much reflection and great reluctance—that [the statute] is structurally flawed and those flaws cannot be corrected within our constitutional framework,” and explained she was “paraphrasing Justice Scalia’s dissent in Morrison.”

-          Democratic Senator Dick Durbin referred to independent counsels as “unchecked, unbridled, unrestrained and unaccountable.”

 

FACT: Independent Counsels and special counsels are substantively and legally different.

-          Independent Counsels, as they existed under the now-lapsed statute, reported to a three judge panel and had no obligations to report to the Executive Branch.

-          Special counsels, on the other hand, are part of the Justice Department. They exist and operate under Department regulations. Special counsels maintain a level of independence from other Department activities but report to the Attorney General.

-          Critics of Morrison v. Olson were concerned specifically with the use prosecutorial authorities outside of the Executive Branch. So the primary underlying legal issue does not affect special counsels as they exist under today’s Justice Department regulations.

 

FACT: Judge Kavanaugh has actually argued in support of a more constitutionally defensible approach to independent prosecutors.

-          In a 1998 article, Judge Kavanaugh made the case for a framework that would better promote independent investigations, with elements similar to today’s special counsel framework.

-          Judge Kavanaugh’s 1998 proposal would make the special counsel answerable to the Attorney General and required Senate confirmation to insulate from political attacks.

-          Legal commentator Benjamin Wittes writes, “Critically, Kavanaugh’s proposed structural reforms to the independent counsel law were aimed not at weakening it but at shoring up the credibility and independence of the investigators against political attacks.” [emphasis retained]

 

FACT: Morrison v. Olson and the old independent counsel statute have been criticized by legal experts from across the ideological spectrum.

-          Justice Kagan said Scalia’s dissent in Morrison was “one of the greatest dissents ever written and every year it gets better.”

-          Walter Dellinger, a top official at the Clinton Justice Department said, “the parade of horribles envisioned by Justice Scalia is now marching right down Pennsylvania Avenue.”

 

In light of Justice Kagan’s comments on Morrison, it’s not clear how the Supreme Court would rule today on any similar case. However, one thing is clear: Judge Kavanaugh was speaking strictly about a law that hasn’t existed for two decades, and the mainstream on the left and right agree with him.

 

With respect to Judge Kavanaugh’s nomination, the Majority Leader importantly noted, “This has nothing to do with special counsels, or any of the other tools that are currently in place for elected officials to be held accountable… The irony -- or hypocrisy -- is that our Democratic colleagues are now criticizing Judge Kavanaugh because he may hold the same views on this subject as many of them do. Or at least did, right up until to his nomination.”

 

Writing and commentary for reference:

-          Newsweek | Democrats Cry Foul, but Brett Kavanaugh’s View of Independent Counsels is Unrelated to Mueller Probe, Experts Say

-          Bloomberg | Kavanaugh’s Papers Don’t Help Trump Avoid Indictment

-          Lawfare | Brett Kavanaugh and the Mueller Investigation: What Do His Writings Really Say?

-          New York Times | Justice Officials To Call For End To Counsel Law (1999)

-          New York Times | Blank Check; Ethics in Government: The Price of Good Intentions (1998)