The Watergate Scandal had a profound effect on modern American politics.
In response, Congress passed the Ethics in Government Act in 1978 as a means of providing
accountability in government.
One provision of the Act authorized the Attorney General to request the appointment of an independent
counsel by a court called the Special Division.
The purpose of the independent counsel is to investigate high-level civil servants and
prosecute them for federal criminal law violations.
Congress granted the Attorney General sole removal power of independent counsels “for
cause.”
Independent Counsel Alexia Morrison (plaintiff) investigated the role that various officials
in the Department of Justice (defendants) played in potentially obstructing a congressional
investigation.
Specifically, Morrison alleged that certain Environmental Protection Agency documents
had been improperly withheld and that defendant Solicitor General Ted Olson had given false
or misleading testimony to the congressional subcommittee during the investigation.
Morrison asked a federal court to issue subpoenas requiring production of the documents.
Olson fought the subpoenas and challenged the constitutionality of the Act as whole.
Olson argued that Morrison had no authority to act, much less seek subpoenas, because
the portion of the Act authorizing independent counsels violated the Appointments Clause
of Article II by allowing appointment of a principal officer by someone other than the
president.
Olson further contended the Act violated separation of powers principles by reducing the president’s
power to remove executive officers.
The trial court found in Morrison’s favor, denied the motion to quash, and found the
defendants in contempt for failing to comply with the subpoenas.
Olson appealed.
A divided court of appeals reversed, finding that an independent counsel is a principal
officer, not an inferior officer; as such, the court of appeals held that the Act is
invalid, because it does not comply with the Appointments Clause.
Morrison appealed to the United States Supreme Court.
Chief Justice Rehnquist, writing for the majority, found that the Act was constitutional.
First, Rehnquist made clear that the requirement that officers be chosen by the president and
approved by the Senate under the Appointments Clause applied only to principal officers;
Congress was free to allow the president, a department head, or the judiciary to appoint
inferior officers.
Rehnquist concluded that an independent counsel created by the Act was an inferior officer,
because the independent counsel could be removed by a “higher Executive Branch official”
and was vested with only limited authority, jurisdiction, and tenure.
Next, Rehnquist noted that interbranch appointments of inferior officers is authorized by the
Excepting Clause and concluded that vesting the appointment power in the judiciary was
both logical (given the difficulty involved in having the Executive Branch investigate
its own officers’ misconduct) and permissible, because the job was consistent with the traditional
functions of courts.
The majority concluded that the creation of the Special Division does not conflict with
Article III of the Constitution, which limits the judicial power to cases or controversies,
so long as the Division did not do anything outside the specific functions authorized
by the Act.
Finally, the majority turned to the question of whether the Act violated separation of
powers principles.
Because Congress vested the power to appoint the special counsel in the judiciary and the
power to remove the special counsel in the Attorney General, it wasn’t usurping the
power of the executive.
Further, neither the requirement of good cause for removal nor the Act as a whole prevented
the president from performing those functions constitutionally vested in the executive branch.
In light of this, Rehnquist concluded the Act did not violate separation of powers principles.
Justice Scalia dissented, basing his opinion on an originalist interpretation of separation
of powers.
Scalia argued that the Act unconstitutionally deprived the president of exclusive control
over a purely executive function: conducting criminal prosecutions.
Scalia further took issue with the characterization of the independent counsel, who was subordinate
to no other executive officer, as “inferior,” and concluded that the limitations on removal
without cause violated the precedent set in the case Humphrey’s Executor v. United States.
Morrison v. Olson was a hugely important, and highly controversial, ruling that had
a significant impact on separation of powers issues, interbranch appointments, and the
use of independent counsels.
Congress allowed the Act to expire in 1999 and created the U.S. Department of Justice
Office of Special Counsel to replace it.
Justice Scalia later referred to this case as the “most wrenching” case he’d decided,
both because it came out wrong and because Chief Justice Rehnquist wrote the majority
opinion.
Rehnquist had been head of the Office of Legal Counsel and, in Scalia’s mind, should have
been more aware of the importance of the president’s prosecutorial authority.
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