In re Sealed Case, 838 F.2d476 (D.C. Cir. 1988); probable jurisdiction noted, 484U.S. 1058(1988).
Holding
The Independent Counsel Act's restriction on the power of the Attorney General to remove an inferior officer only for good cause does not violate the Appointments Clause. The Independent Counsel Act is constitutional, as it does not increase the power of the judiciary or legislative branches at the expense of the executive branch.
The Office of Independent Counsel was established by Congress after the Watergate scandal. When needed, the statute allowed for an independent counsel to be appointed by a special judicial panel.[1]
The Chairman of the Judiciary Committee forwarded a copy of the report to the Attorney General with a request that he seek the appointment of an independent counsel to investigate the allegations against Olson and two others. Alexia Morrison was named independent counsel and given jurisdiction to investigate whether Olson had violated federal law. Olson moved to quash the subpoenas and sued Morrison in her official capacity.
Olson argued that the Office of the Independent Counsel took executive powers away from the office of the President of the United States and created a hybrid "fourth branch" of government that was ultimately answerable to no one. He argued that the broad powers of an independent counsel could be easily abused or corrupted by partisanship. Morrison in turn argued that her position was necessary in order to prevent abuses by the executive branch, which historically operated in a closed environment.
Supreme Court
Majority
The Court held that the independent counsel provision of the Ethics in Government Act did not violate the principle of separation of powers because it did not increase the power of one branch at the expense of another.
The Court had decided only two years earlier in Bowsher v. Synar that interpreting statutes to implement their requirements is "the very essence of 'execution' of the law".[6] Reaffirming Bowsher's interpretation of Myers v. United States, Chief Justice Rehnquist allowed an exception for inferior officers, finding that an independent counsel appointed by the Special Division to investigate high-level misconduct would not "impermissibly burden" the President's responsibility under Article II to "take care that the laws be faithfully executed".[7][8]
Justice Scalia's dissent
Justice Scalia, the lone dissenter, said that the law should be struck down because (1) criminal prosecution is an exercise of "purely executive power" and (2) the law deprived the president of "exclusive control" of that power.[9]
In his opinion, Scalia predicted how the law might be abused in practice, writing, "I fear the Court has permanently encumbered the Republic with an institution that will do it great harm."[10]
Concerns were also raised, in line with Scalia's dissent, when independent counsel Kenneth Starr spent $40 million and more than four years investigating President Clinton's land deals and extramarital affairs.[12] Writing in The New York Times while Starr's work was ongoing, legal journalist Linda Greenhouse reported that Scalia's dissent, formerly disregarded by liberals, was instead being "cited and passed around in liberal circles like samizdat."[13]
Subsequent developments
Congress let the Independent Counsel Act expire in 1999. Then-Judge Samuel Alito said the decision hit the separation of powers doctrine 'about as hard as heavy-weight champ Mike Tyson usually hits his opponents.'"[14] It seemingly "drove a stake into the heart of" Myers v. United States, the controlling case on presidential removal powers at that time.[15] In 2013, Justice Scalia described Morrison v. Olson as the most wrenching case in which he had participated:
Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who's not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching."[16]
In April 2006, a court citing Morrison rejected I. Lewis "Scooter" Libby's argument that Special Counsel Patrick J. Fitzgerald lacked the legal authority to bring charges against him.[17]Morrison was distinguished in Seila Law LLC v. Consumer Financial Protection Bureau (2020) as being an exception to the President's generally unencumbered authority to remove officers of the United States at will.[15] The Court held that Morrison's holding was a narrow exception only applying to inferior officers.[15]
Glitzenstein, Eric R.; Morrison, Alan B. (1988). "Supreme Court's Decision in Morrison v. Olson: A Common Sense Application of the Constitution to a Practical Problem". American University Law Review. 38: 359–382. ISSN0003-1453.
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