The Special Counsel Question is About More than Separation-of-Powers

Hutchinson Fann (PO ’20)

As efforts to pass a bill protecting special counsel Mueller from firing by President Trump are revived, it is important to remember Morrison v. Olson , a divisive 1988 case that politicians from both sides of the aisle often cite to support their position on the special counsel. In this piece, I’ll explain why Morrison means such different things to the two parties today, consider Justice Scalia’s famous dissent in the case, and then suggest some ways in which proponents of an independent or protected special counsel can more effectively combat Justice Scalia’s position.

While the debate over the independent counsel in 1988 is a little different from one today over the special counsel, a prevailing central issue is the same: whether there should be a firm, reviewable “good cause” restriction on the firing of an independent investigator into the executive branch.

Proponents of this restriction argue that it is necessary because of the inherent conflict of interest of the executive branch overseeing an investigation into themselves. The outcome of Morrison —a 7-1 majority upholding the constitutionality of an independent counsel to investigate high-ranking members of the executive branch—is often cited to support this position. Senator Chris Coons (D-Delaware), for instance, issued a video last month praising the majority decision in Morrison , and Coons has repeatedly referred to the case as “good law.”

Opponents of a firm “good cause” restriction have rallied around the late Justice Scalia’s lone dissent in Morrison . In April of this year, Senator Ben Sasse (R-Nebraska) said that “many of us think we are bound” by the Justice Scalia’s dissent in the case. Sasse then voted against a bill insulating special counsel Mueller from dismissal by the President without “good cause.” And Senators Orrin Hatch and Mike Lee expressed similar logic for their “no” votes.

Justice Scalia put this stance well in the opening paragraphs of his dissent: “To repeat, Article II, § 1, cl. 1, of the Constitution provides: ‘The executive Power shall be vested in a President of the United States,’” he writes. “This does not mean some of the executive power, but all of the executive power.” Because the independent counsel is exercising the “purely executive” of investigation, he argues, the President must have “exclusive control over the exercise of [that] power.” The “good cause” restriction, among other factors, takes away the President’s absolute control, making the independent counsel unconstitutional on fundamental separation-of-powers principles.

The appeal of Justice Scalia’s argument is its principled clarity—its assurance that we have to strictly adhere to what the law is, however unpalatable it may be to us in practice. Scalia’s argument happily concedes the common-sense counter-argument that dependent executive branch appointees should not be allowed to investigate fellow members of their branch. “A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused,” writes Scalia. “Constitutional protections have costs.”

The problem with most rebuttals to Scalia is that they try to play within his framing of the case as a purely separation-of-powers issue. The majority opinion in Morrison , for instance, essentially concedes that the independent counsel infringes on the executive branch’s prerogatives, but then spends most of their opinion arguing that it doesn’t infringe by too much. The opinion is peppered with qualifiers such as “essential,” “so central,” and “sufficient control” that come off as futile: because we’ve read Justice Scalia’s clear-cut opinion, the moment they concede the violation of separation-of-powers a logical reader feels the case is over.

A more persuasive counterargument to Justice Scalia’s opinion must instead reframe the case in terms of competing constitutional doctrines, of which separation-of-powers is only a part. This can be done rather easily because separation-of-powers is, after all, only inferred from the Constitution; it is never expressly stated. Article II’s Vesting Clause states “The executive Power shall be vested in a President of the United States,” but it never defines “executive power,” nor does it include the word “all,” as Scalia suggests, when describing it. This vagueness is especially notable when considering what the rest of the Constitution actually does say. A proponent of an independent counsel can point to two overt features of the Constitution: the structural “checks and balances,” and Congress’s deliberately flexible power under the Necessary and Proper Clause. The Constitution is full of “checks”—Congress’s power to “advise and consent” to Executive Branch appointments, the President’s veto power—that make it clear the President does not have absolute control over all executive matters. And as then Judge Ruth Bader Ginsburg wrote while Morrison was in the Court of Appeals, the structural “genius” of our Constitution is the simultaneous existence of the doctrine of separations-of-powers with the system of checks and balances.

The Necessary and Proper Clause seems to offer a way of bringing a new “check” into existence. The Clause gives Congress the flexible power to “[carry] into Execution the foregoing Powers, and all other Powers vested by this Constitution…in any Department or Officer thereof.” Creating the independent counsel to be a “check” on the inherent conflict of the Executive Branch investigating itself seems to be a quite limited and “proper” way to ensure high executive branch officials are not above the law.

The opinions in Morrison solely worry about infringing upon executive rights, but this Necessary and Proper Clause argument invokes the competing rights of the legislature. In United States v. Nixon , another case dealing with branches’ overlapping prerogatives, the Court ruled that President Nixon’s right to executive privilege had to be balanced by Congress’s need for information to fulfill their duties. Framing Morrison in this way—in terms of competing constitutional interests that need to be balanced—suddenly gives weight to the Court majority’s determination that the independent counsel does not “substantially” infringe upon Executive duties.

As the debate over special counsel Mueller intensifies, it is important for proponents of protection of the special counsel to recognize that Justice Scalia’s conception of separation-of-powers does not have to govern the debate. A case can be made under the Necessary and Proper Clause, and by pointing to the Constitution’s structural “checks and balances.”

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