Protection of Independent Counsel and the Flawed Precedent of Morrison v. Olson

As indictments of Trump associates begin in Robert Mueller's investigation of Russian interference in the 2016 election, it's clear that the investigation poses serious legal and political risks to the President and his allies. This has raised concerns that the President could attempt to protect himself by undermining the investigation and removing Mueller. Unlike the Independent Counsels who investigated previous Presidents, Mueller does not enjoy any statutory protection from dismissal: his position gives him a kind of day-to-day independence but is governed exclusively by the internal regulations of the Justice Department. This has led Senators Cory Booker, Chris Coons, Lindsay Graham and Thom Tillis to propose legislation that would protect Mueller's investigation from interference. The Booker-Graham bill requires the Attorney General to get the approval of a three-judge panel of the D.C. District Court before firing a Special Counsel[1], while the Tillis-Coons bill allows for judicial review of a Special Counsel's removal after the fact.[2] There are important differences between these two approaches, but, as a recent Senate hearing made clear, many of the legal arguments over both bills invoke the 1988 Supreme Court decision in Morrison v. Olson, which upheld the constitutionality of the Office of the Independent Counsel. While it's been on the books for almost thirty years, this case is no longer good precedent: later factual and legal developments have vindicated the dissenting opinion and undermined the Court's separation of powers logic.

The Office of the Independent Counsel at issue in Morrison was created by the 1978 Ethics in Government Act, part of a set of sweeping reforms undertaken after Watergate by a Democratic Congress to restore confidence in government and prevent corruption.[3] After Nixon's “Saturday Night Massacre,” in which he fired the Attorney General and Deputy Attorney General in order to ultimately fire Special Prosecutor Archibald Cox, legislators were determined to insulate the Independent Counsel from Presidential interference. As a result, Independent Counsels were appointed by a three-judge panel of the D.C. Circuit Court and were tasked with investigating misconduct and reporting to Congress or bringing charges as needed. Independent Counsels were granted "full power and independent authority to exercise all investigative and prosecutorial functions of the Justice Department.” The Attorney General (but not the President) was permitted to remove an Independent Counsel for “good cause.”[4] In the following decades, a number of Independent Counsels were appointed to investigate alleged misconduct, most notably the Iran-Contra investigation of the Reagan Administration,[5] and the Whitewater investigation of the Clinton Administration that culminated in Clinton's impeachment on perjury charges.[6] While proponents claimed that unchecked Executive power had finally been brought to a heel, critics charged that these wide-ranging investigations violated the principle of separation of powers and had created a “fourth branch of government” that wasn't accountable to anyone.

The Supreme Court finally heard these challenges during the Reagan Administration in a case brought by Assistant Attorney General Theodore Olson against Independent Counsel Alexia Morrison. First, Olson argued that the independent counsel was an impermissible as a separation of powers question, since it located substantial Article III powers outside the President's control. Second, Olson argued that the office violated the Appointments Clause of Article II. The Appointments Clause creates two tiers of Executive officers, “principal” and “inferior.”[7] Congress has the authority to delegate the appointment of inferior officers, but principal officers must be nominated by the President and confirmed by the Senate using the standard “advice and consent” process. Olson argued that Independent Counsels were principal officers, and so their appointment by a panel of judges from the D.C. Circuit Court was unconstitutional.

On a 7-1 decision, with Justice Scalia dissenting, the Court rejected these arguments and upheld the constitutionality of the Independent Counsel's office. The majority held that, because the Independent Counsel was accountable to the Attorney General, they were an inferior officer, and so the appointment process was constitutional. Further, they held that the Office of the Independent Counsel did not violate the separation of powers because it did not undermine the Executive's ability to carry out its Article III functions, nor did it give that authority to another branch. As such, they argued, it could not upset the balance between branches.[8]

While Morrison was never re-litigated, Scalia's dissent has in many ways been vindicated. In his view, the Independent Counsel was clearly a principal officer: the position gave Morrison wide-ranging authority that wasn't in practice accountable to the President or Attorney General, and served as a major political liability that weakened the Presidency in relation to Congress.[9] A decade later, this was the consensus in Washington after both Republicans and Democrats had been bruised what they saw as Independent Counsel investigations run amok. As a result, the provisions creating the office were allowed to lapse.[10] (It was at this point that the Department of Justice created the concept of a Special Counsel, to preserve what they saw as the valuable parts of the Office of the Independent Counsel.)

As Adrian Vermeule points out in his article on Morrison, this bipartisan embrace of Scalia's position is itself a vindication of it, and has been coupled with a re-evaluation of Scalia's dissent from the bench as well.[11] Justice Kagan has elevated it as “one of the greatest dissents ever written and every year it gets better.”[12] Akhil Amar mentions in passing that he believes there would at least 6 votes on the Court to overrule Morrison and declare either Booker-Graham or Coons-Tillis unconstitutional.[13] While other scholars like Steve Vladeck disagree[14] and it may be difficult to make any reliable predictions, it’s clearly possible for the Court to revisit Morrison in the future, especially because none of the Justices who decided Morrison are still on the Court.

Amar also notes that the legal terrain has shifted since 1988. Later decisions, in particular, Edmond v. United States[15] in 1997, clarified the meaning of “inferior officer” in a way that is incompatible with the Court’s jurisprudence in Morrison. Fittingly, it’s Justice Scalia, this time writing for a majority of the Court, who articulates this conception. In Edmond, the distinction between an inferior and principal officer isn’t about the formal hierarchy on an organizational chart, but practical political accountability and direction or supervision by another Executive officer. On this interpretation, the Independent Counsel provisions are in trouble. Congress’s intent was to insulate an investigation from Presidential supervision, so if they succeed, the Independent Counsel statute fails the test put forth in Edmond. The more authority and insulation Congress provides, the clearer it is that they are not inferior officers.

Morrison would be in serious jeopardy today, with a new court and new, more developed jurisprudence on the central separation of powers questions involved. What does this mean for Booker-Graham or Coons-Tillis. Perhaps nothing, As Steve Vladeck notes, these bills are much more modest than the Independent Counsel statute, so it’s possible that Morrison is bad law but these targeted bills pose no constitutional problems. In particular, neither bill has the appointment provisions that were so worrisome in Morrison.[16] However, if the broader separation of powers principles at stake still apply, oversight of this President will have to use channels that are less legal and more political. Of course, Congress’s ultimate check is impeachment, they have many less extreme tools available to oversee the Presidency. Congress has the resources and authority to conduct its own hearings and investigations of the same issues as the Special Counsel and they can use that authority however they see fit. Congress may choose to engage narrowly in fact-finding, in public or private, attempt to identify areas of interest for state Attorneys General, or more broadly attempt to inflict political damage if the administration doesn’t comply with its wishes, which may include a new Special Counsel. Morrison certainly limits Congress, but it does not leave them toothless.

[1] Special Counsel Integrity Act, S. 1741, 115th Cong. (2017).

[2] Special Counsel Independence Protection Act, S. 1735, 115th Cong. (2017).

[3] Harriger, Katy J. “The History of the Independent Counsel Provisions: How the Past Informs the Current Debate.” Mercer L. Rev. 49 (1997): 489.

[4] Priester, Benjamin J., Paul G. Rozelle, and Mirah A. Horowitz. “The Independent Counsel Statute: A Legal History.” Law and Contemporary Problems 62, no. 1 (1999): 5-109.

[5] Department of Justice. Office of the Independent Counsel. Final report of the Independent Counsel for Iran/Contra Matters. By Lawrence E. Walsh. Washington, D.C.: U.S. Court of Appeals for the District of Columbia Circuit, 1993.

[6] Department of Justice. Office of the Independent Counsel. Referral to the United States House of Representatives pursuant to Title 28, United States Code, 595(c). By Kenneth Starr. Washington, D.C.: U.S. House of Representatives, 1998.

[7] U.S. Const. art. 2. sec. 2. cl. 2.

[8] Morrison v. Olson, 487 U.S. 654 (1988)

[9] Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J. dissenting)

[10] Washington Post article, cited in Vermeule

[11] Vermeule, Adrian. 2017. “Morrison v. Olson Is Bad Law.” Lawfare. Brookings Institution. June 12.

[12] Kagan E (2015) Event Prior to Moot Court Final Arguments at Stanford Law School, cited in Vermeule, Adrian. 2017. “Morrison v. Olson Is Bad Law.” Lawfare. Brookings Institution. June 12.

[13] Testimony Before the Senate Committee on the Judiciary, 115th Cong. (2017) (testimony of Akhil Reed Amar).

[14] Special Counsels and the Separation of Powers, 115th Cong. (2017) (testimony of Stephen I. Vladeck).

[15] Edmond v. United States, 520 US 651 (1997)

[16] Special Counsels and the Separation of Powers, 115th Cong. (2017) (testimony of Stephen I. Vladeck).