In the aftermath of the somewhat shocking firing of FBI director James Comey—shocking due more to timing and style than substance—there has been some media confusion as to whether an appropriate response to the various investigations into alleged Russian involvement with members of the President’s top advisors should be a special counsel or an independent counsel. In this post, I hope to offer a bit of clarification, which might help as you sort through the various media reports in the weeks ahead. I will also offer a few personal reflections.
The Ethics in Government Act of 1978, available here, created the U.S. Office of Independent Counsel. That statute was let lapse in June of 1999, during the end of the Bill Clinton’s second term. The statute was originally enacted in response to Richard Nixon’s firing of Special Prosecutor, Archibald Cox, in the so-called midnight massacre. Cox was a special prosecutor, now called a special counsel, as opposed to an independent counsel.
The Independent Counsel was appointed though a process that involved not only the Executive Branch, but also a newly created “special division,” housed within the judiciary, and had protection against firing other than for good cause shown, based on statutorily defined criteria, most notably including misconduct or completion of the assigned tasks. In other words, the Independent Counsel had statutory protection from interference by higher level executive officials during the pendency of an ongoing investigation.
The constitutionality of The Ethics in Government Act was challenged in the 1978 Supreme Court case, Morrison v. Olson, available here. The central arguments against the statute was that it violated Separation of Powers by removing some executive removal authority from the President, in whom such powers were fully vested in Article II of the Constitution, and that the newly created office could not be deemed “inferior” in part due to the very political insulation of the office and the breadth of authority to investigate referred matters independent of ordinary Department of Justice protocols. (There was also a third, less pressing, issue involving inter-branch appointments.) Chief Justice Rehnquist, writing for a majority, rejected these bases for the challenge, and in sustaining the law, he recharacterized earlier precedents based on what he described as his “present considered view” concerning the President’s removal authority. Justice Scalia wrote a powerful dissent, fleshing out the two major arguments against the independent prosecutor law and accusing the majority of substituting a balancing test for what he claimed had, until then, been clear demarcations within the Court’s separation of powers jurisprudence on executive removal authority.
A special prosecutor, in contrast with an Independent Counsel, is appointed by the Attorney General, Jeff Sessions (or if recused, by Deputy Attorney General, Rod Rosenstein), or by Congress, and is subject to being fired by the Attorney General (or Deputy). In other words, the check against firing a special counsel is political, whereas there were separate statutory checks against firing the Independent Counsel. This was the very problem that motivated the initial enactment of the now-lapsed independent prosecutor law.
For many years, I was personally sympathetic with Scalia’s dissenting position in Morrison v. Olson. Early in my career, some liberal students regarded this as a conservative position; after all, I was defending Justice Antonin Scalia against yet another conservative jurist, Chief Justice Rehnquist. In later years, during the Clinton-Lewinsky scandal, I took the same position, and some conservative students claimed I was taking a liberal position. Notably, my position had not changed.
I will acknowledge that I am now beginning to rethink my position on this issue, although I remain ambivalent. My primary concern is that single-party control of both political branches, and the likely absence of a meaningful opportunity for a Supreme Court check, calls into question our traditional understanding of separation of powers as cabining potential executive abuses of power. Put differently, the separation of powers foundations of our system continues occasionally to run up against the reality that our real separation is too often partisan, not institutional, and that partisan checks are only meaningful when the out-of-power party controls the levers necessary to genuinely check the executive branch. For a thoughtful article that explores this theme, by Daryl Levinson and Richard Pildes, see here.
It will be most interesting to see how this all develops, and for now, I hope this offers a bit of clarification.
As always, comments are welcome.