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.
