I am one of the eight who filed a dissent in this case and I, I suppose when one dissents
from as many of the court's decisions in one day as I have today you get to ah, discuss it.
I discuss it because I think it's uh, one of the most important opinions the court has
issued in many years.
To many people, it may seem that this case is of some political interest, but it's not
likely now or in the future to have any proximate effect upon their lives or the lives of their
children.
It does not after all involve freedom of speech, freedom of the press, freedom of religion,
or any of the wonderful guarantees of our Bill of Rights.
That is wrong.
If you took a survey of people and asked them ah, name Justice Scalia's most important, greatest
opinions, Morrison versus Olson's dissent would appear on almost every list,
which is interesting because it was a lone dissent.
He had a very, very astute grasp of the real world dynamics of power and how law would
change relationships of power, and that's what is at the heart of the brilliance in
this dissent.
At the time of, the decision came down, most people in the academic word, world, most law professors
thought the majority was right and Justice Scalia was wrong.
As time has gone by, it's almost a consensus that Justice Scalia was right.
Post-Watergate, they had just gone through the Nixon presidency and there was a widespread,
even bipartisan sense, that you couldn't trust the President to investigate himself or his
highest-ranking subordinates.
The conclusion that emerged out of Watergate was, we need a system in which a, an experienced
prosecutor has enough independence that the President can't just turn around and fire
that person.
Congress introduced by statute in the Ethics in Government Act an alternative mechanism
for policing what it saw as the prospect of executive maleficence.
A panel of judges would appoint a special prosecutor called in this case an independent
counsel to investigate the activities of the person in the executive branch whose conduct
was being questioned, and that's what happened in this case.
The controversy that led to the appointment of the independent counsel was this dispute
between congressional committees and environmental enforcement agencies in the executive branch.
It was the responsibility of the Office of Legal Counsel, the office that I headed, to
provide the President with constitutional advice as to whether this was an appropriate
occasion to exercise executive privilege.
That angered Congress and Congress decided to conduct an investigation over how the
Justice Department handled that entire controversy.
Morrison was appointed as what is called a special counsel.
This special counsel was a law enforcement official, technically part of the Department
of Justice, but not actually answerable to the hierarchy of authority in the Department
of Justice.
He had by statute all of the authority of the Attorney General of the United States
to pursue criminal investigations and prosecutions within her defined authority without having
to answer directly to the Attorney General or to the President.
Ultimately the independent counsel subpoenaed documents that related to the work that I
had done, so we resisted the subpoena, told the independent counsel that we would not
produce the documents and then told the court that we were not producing the documents because
the independent counsel did not have the right under the Constitution to subpoena those documents.
That set up a judicial challenge to the existence of the independent counsel.
The big argument is whether or not you can have a special counsel who operated independently
of the President, because she could only be removed for very narrowly defined causes.
Justice Scalia's dissent today is famous for his very, very strong and powerful rhetoric
about that aspect of the case.
The majority opinion written by Chief Justice Rehnquist looked at various different aspects
of the independent counsel provisions and said, "Well, um, it's not too much power."
It was deliberately structured as a case-specific, fact-specific, you have to look at the particulars
of each instance, so it doesn't have the character of what we might call a rule, and this is
also one of the reasons why Justice Scalia got so upset about it.
A little bit of an erosion here, a little bit of intrusion here.
In the totality of circumstances, it's not too bad and it's tolerable.
It's the kind of, ah, situation that Justice Scalia recoiled from.
But I do think the principle that Congress has the capacity to create some structure
for ensuring an independent, impartial, legitimate investigation of the President or the President's
top aides, when there's strong enough basis for believing they may have committed crimes,
that the principle that there's room in the separation of power system for some structure
that allows for that I think is appropriate, and that's what is not permitted under Justice
Scalia's very, uh, I would say simple, mechanical approach to this complex problem.
Justice Scalia's dissent in Morrison versus Olson was a very forceful, very powerful,
rhetorically flourishing defense of the position that the President has to be able to fire
at will at least at a minimum anyone who is exercising law enforcement power within the
executive.
I would say Justice Scalia disagreed with the majority for both a kind of formal set
of doctrinal or constitutional reasons and because he thought that beneath those reasons
there were real questions about the distortion of the balance of powers.
That the President must have the unified and ah, exclusive power to execute the laws so
that we the people could hold the President responsible for the ways in which the laws
were executed.
Justice Scalia would have us believe that the framers of the Constitution made a conscious
and focused decision that even when the President or his or her top aides are being investigated,
it's still the case that the President has to have full control over that investigation.
I don't think the framers focused on this particular issue.
They talked about politically removing the President from office, obviously, ah, because
the impeachment process is established in the Constitution, ah, but they simply didn't
give any thought one way or the other as to what the structure for an investigation might
be ah, of whether the President or his or her top aides had committed crimes ah, and
what the structure for prosecuting that might be.
Didn't the framers consider the possibility that there might be a rogue President and
rogue law enforcement machinery?
Of course.
Not only did they consider it, they wrote six, count them, six separate provisions into
the Constitution to deal with that.
Those are the provisions for impeachment and removal.
The Congress believes that the President is abusing, misusing power, there is a procedure
specified in excruciating detail in the Constitution for impeachment and removal of not just the
President, but lower level executive officials who Congress believes are misusing their power.
I think it's an extreme view, ah, of the unitary executive branch.
You might believe that the President constitutionally has to have control over the administrative
agencies and still take the view that when it comes to potential crime that the President
himself has committed, the President should not have and does not have as a constitutional
matter the power to completely control the investigation into these matters.
I think it's fair to say the majority opinion was pragmatic in the sense that it was looking
to particular consequences, although it wasn't entirely clear what consequences they thought
they were looking to, ah, and Justice Scalia's approach can fairly be described as formalistic.
You come up with very clear rules and you deduce from those rules the outcomes in particular
cases.
I agree with the many people who have said the dissent is a brilliant piece of analysis.
I think it is brilliant in its understanding of how that statute would work in operation,
but I don't think it follows, in fact I think it's a very long leap to go from the brilliant
realism of his descriptive insights about how this statute would work to his, in my
view, very simplistic constitutional conclusion that there's a straightforward simple answer
to this inherent conflict of interest problem.
It's very interesting to see that evolution over a period of 40 years where a justice
was a minority in a seven to one decision and people have come to believe that that
minority, that dissenting opinion was the correct decision.
Justice Scalia was something of a novelty in that he had a methodology.
This is the formalism aspect of what he does and that was not well understood.
It was certainly not shared by the other people on the court.
There was nobody on the court in 1988 who decided cases based on the rigorous application
of a well-defined methodology.
That is I think less true 30 years later today ah, than it was in 1988.
I think you now have justices, by the way on both sides of the spectrum, who are much
more attuned to, focused on, application of methodologies than they would have been 30
years ago.
It is a great opinion because it's very thorough, it's very careful, it's very scholarly.
It looks at the reasons why our Constitution was created the way it was and the way it
is implemented to protect individual liberty.
It's a common piece of conventional wisdom that Justice Scalia ultimately was proven
right in his Morrison versus Olson dissent.
There's a good deal of truth to that, but it's also overstated in ways that I think
people often don't appreciate.
He was right about the way the Independent Counsel Act would work in practice.
That particular statute with all of its different pieces, all of its elements and the way they
work together, and the kind of independent counsel investigations that we sometimes got
under that statute.
He was brilliantly right, ah, about that, but the legal conclusion he wanted to draw from that
analysis was much more extreme than I think many people realize.
What I would hope people would look at is the broader question, how do you figure out
what the Constitution means?
What, what are you going to do the next case, the one that is a really boring case about the
curtilage under the Fourth Amendment or something like that?
How are you going to go about deciding that case?
Are you going to come up with an all things considered, what does my gut say is the right
answer or do you have a methodology that you go into the case thinking I'm going to decide
using this particular decision procedure?
Whatever that yields, that's how I'm going to do it.
Just because he was right about how this statute would work in practice doesn't mean he was
right about the very simple constitutional way he would approach or analyze the situation,
and I think many people ah, confuse those two or don't separate out those two questions
clearly enough.
So I think a great deal of the ah, legacy of his opinion in Morrison versus Olson is
attributable to the style, but none of that should obscure the substance underneath it.
He was putting forward an enormously powerful vision about maybe the single most important
feature of the United States Constitution, the allocation of power, how people exercise
power, how the exercise of power is controlled.
It is one of those opinions in our constitutional literature that people read and then they
understand more about why we are free today.
In the dictatorships of the modern world, bills of rights are a dime a dozen.
What makes ours work is a governmental structure, a Constitution of government designed by 55
extraordinarily wise national leaders over the course of a four-month convention 200
years ago last summer.
Today's decision, which departs from the text of the Constitution and gives no reason for
the departure except that a majority of this court does not think that the power taken
away from the President was too much, is not in my view the operation of the government
of laws that the Constitution intended.
Indeed, it does not seem to me to be the operation of a government of laws at all.