Morrison v. Olson 1988

Appellant: Alexia Morrison

Appellee: Theodore B. Olson, Edward Schmults, Carol E. Dinkins

Appellant's Claim: That the Ethics in Government Act of 1978 which allowed for appointment of an independent counsel to investigate wrongdoing by federal officials did not violate the Appointment Clause of the Constitution or the principle of separation of powers.

Chief Lawyer for Appellant: Alexia Morrison

Chief Lawyer for Appellee: Thomas S. Martin

Justices for the Court: Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, Sandra Day O'Connor, Chief Justice William H. Rehnquist, John Paul Stevens, Byron R. White

Justices Dissenting: Antonin Scalia (Anthony M. Kennedy did not participate)

Date of Decision: June 27, 1988

Decision: Ruled in favor of Morrison by finding that the act was constitutionally valid.

Significance: The ruling reaffirmed the role of independent counsel in investigating federal officials, including the president. The Court determined that a judicial office within the executive branch of government did not violate the separation of powers concepts basic to the federal government.

"W hether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people [to decide]." Words spoken by Archibald Cox immediately after being fired as special prosecutor investigating the Watergate scandal.

It all began in the summer of 1972 when someone broke into offices belonging to the Democratic Party in Washington's Watergate Complex. By 1973 newspaper stories suggested involvement by officials in the administration of President Richard M. Nixon (1969–1974). As a result, Attorney General Elliot L. Richardson, in May of 1973, selected Archibald Cox as special prosecutor to investigate the affair.

As the investigation widened, it appeared that White House officials had played a part and Cox requested from Nixon audio tapes of White House conversations. On Saturday night October 20, 1973 an outraged Nixon ordered Richardson to fire Cox. Refusing to carry out Nixon's order, Richardson and then his deputy attorney general, William D. Ruckleshaus, the top two officials of the Justice Department, resigned in protest. Later that night Robert Bock, the solicitor general, fired Cox. The night's events became known as the "Saturday Night Massacre" and left the American public reeling in dismay over Nixon's actions.

By the time the Watergate affair came to an end with Nixon's resignation in 1974, the foundation of the federal government had been shaken. Cover-ups, investigations, and controversies had pitted the three branches of government — executive, legislative, and judicial against each other. Controversy over the special prosecutor's power to investigate officials of the executive branch including the president had been particularly combative and disruptive. Congress decided an independent (free from others) prosecutor was indeed useful to investigate and check government misconduct but guidelines were needed to better define the appointment process and prosecutor's duties. Hence, as a last echo of Watergate, and largely triggered by the Saturday Night Massacre, Congress passed the Ethics in Government Act in 1978.

Ethics in Government Act

Title VI of the Ethics Act provided for the appointment of special prosecutor to investigate and, if necessary, prosecute high ranking government officials for violations of federal criminal law. The term special prosecutor was later changed to the less threatening term, "independent counsel."

Need for an independent counsel (lawyer) on occasion arose because of the severe conflict of interest that had become so clear during the Watergate matter. In the U.S. criminal justice system, prosecutors and law enforcement agencies work under supervision of government leaders in the executive branch. Should those government leaders be accused of misconduct, the federal attorneys and agencies are placed in the difficult position of upholding the law while remaining loyal to their supervisors. As the Saturday Night Massacre illustrated, they would labor under the real threat of being fired. Use of an independent counsel was suppose to avoid this conflict.

The act requires the Justice Department's attorney general (in the executive branch), upon receiving information concerning wrongdoing by a high government official, to conduct an investigation and report to a court of three judges in the judicial branch called the Special Division. The Special Division was placed by the act within the U.S. Court of Appeals for the District of Columbia. In his report, the attorney general may request appointment of an independent counsel to investigate the issue. If so, the Special Division, not the attorney general, chooses and appoints an independent counsel.

The counsel has "full power and independent authority to exercise all investigative and prosecutorial (legal trial proceedings) functions that are allowed any other officer of the Department of Justice." The counsel may be dismissed only by the attorney general and only for "good cause" with follow up reports to the Special Division. The office of independent counsel terminates (ends) when investigations or prosecutions are completed.

The independent counsel must also report on his or her activities from time to time to Congress (the legislative branch) so that Congress can watch over the official conduct of the counsel. The act allows congressional committees to request the attorney general to start the process of selecting an independent counsel to look into particular issues.

Independent Counsel Alexia Morrison

Following passage of the Ethics Act a controversy developed between the House of Representatives and the Environmental Protection Agency (EPA). The EPA only partly-supplied documents subpoenaed (formally ordered) by the House for an ongoing investigation. Upon looking further into the matter, the House Judiciary Committee found that an official in the attorney general's office, Theodore Olson, had most likely given false testimony during the course of the investigation. A copy of the Judiciary Committee's report was sent to the attorney general requesting appointment of an independent counsel to investigate Olson's actions. The attorney general found evidence of possible wrongdoing, and requested the Special Division to appoint an independent counsel. Alexia Morrison was appointed on May 29, 1986.

Morrison soon began investigating if others in the attorney general's office had joined with Olson to interfer with the House's EPA investigation. When, under Morrison's direction, a grand jury subpoenaed Olson, deputy attorney general Edward Schmults, and Carol E. Dinkins, the three refused to comply. They claimed the office of independent counsel was unconstitutional.

"How the Act Works in Practice"

Morrison went to court to have the subpoenas enforced. Having worked its way through the district court and court of appeals, the case found its way to the U.S. Supreme Court in April of 1988. Chief Justice William H. Rehnquist, writing for the majority in the 7-1 decision, commented that, "the proceedings in this case provide an example of how the Act [Ethics in Government Act] works in practice."

Three Constitutional Concerns

Chief Justice Rehnquist addressed three principle constitutional concerns with the act. The first issue related to the Appointments Clause found in Article II of the Constitution. The clause states, "Congress may by law vest [place authority in] the appointment of such inferior [lower ranking] officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." Although an earlier part of the clause allows only the president to make major appointments such as ambassadors, judges, the Supreme Court, and cabinet officials, this part permits Congress to give the President or a court of law power to select certain "inferior" officials. The Ethics Act indeed created a special court, the Special Division, to appoint an inferior official, the independent counsel. Rehnquist wrote the act did not violate the Appointment Clause as the Constitution clearly gave Congress power to allow a court of law to appoint an official in the executive department. However, the court of appeals had decided that the independent counsel was more than an "inferior" official because of the large amount of the counsel's legal power. Rehnquist disagreed. The independent counsel is an "inferior" officer since Morrison could be removed by the attorney general at any time and her office would terminate upon completion of her duties.

Secondly, Rehnquist ruled that the powers given to the Special Division to appoint an independent counsel did not violate Article III of the Constitution. Article III prevents the judiciary (courts) from taking over executive duties of a non-judicial nature in order "to maintain the separation between the Judiciary and the other branches of the Federal Government." Rehnquist wrote that the Special Divisions powers to "receive" reports from the counsel with no authority to act on or approve the reports, and to terminate the office only at the request of the attorney general in no way be considered as the courts taking over executive duties.

Lastly, Rehnquist addressed the issue of separation of powers. The attorney general's office claimed the act's limiting "the Attorney General's power to remove the independent counsel to only those instances in which he can show good cause" unconstitutionally interfered with "the President's exercise of his appointed functions." Rehnquist reasoned, "The congressional determination [through the act] to limit the Attorney General's removal power [and hence the President's power to suddenly fire the counsel] was essential . . . to establish the necessary independence of the office of independent counsel . . . [T]he Act, taken as a whole, does not violate the principle of separation of powers by unduly interfering with the Executive Branch's role."

Politically Charged

Considered a victory for Congress in general, the ruling strongly affirmed the role and power of independent counsels and gave support to other ongoing investigations into administration activities. The very nature of independent counsel removed politically charged since the counsel investigates executive branch officials and their operations. Through the 1980s and 1990s Congress was commonly controlled by one political party while the executive branch by the other, making the role of counsel even more controversial by appearing highly political. Yet, most politicians viewed the independent counsel as necessary to check misconduct and maintain a balance of power in government.

The list of federal government officials investigated by an independent

KENNETH W. STARR

The many pros and cons concerning the role of an independent counsel were dramatized through the 1990s. Prolonged investigations of President Bill Clinton's activities were primarily led by independent counsel Kenneth W. Starr. Starr became the focus of controversy over the usefulness of independent counsels. Born in Vernon, Texas in 1946, Starr attended Duke University Law School and became legal clerk for Supreme Court Chief Justice Warren E. Burger. In 1981 at the beginning of the Ronald Reagan (1981–1989) term, he joined the Justice Department and later appointed by Reagan as judge on the prestigious U.S. Court of Appeals for the District of Columbia. At thirty-seven years of age, Starr was the youngest person ever appointed to the court of appeals. In 1989 he became solicitor general for President George Bush's (1989–1993) administration, returning to private practice with election of Clinton.

In August of 1994 Starr was selected independent counsel to investigate the Whitewater bank scandal of Clinton and his associates. For the next six years Starr also investigated the death of White House counsel Vincent Foster, the firing of White House travel employees, and the Monica Lewinsky scandal. In 1996 during the travel investigation, Starr became the first to ever request the First Lady of the United States to testify before a grand jury. In 1998 Starr subpoenaed Clinton to testify before the grand jury regarding the Lewinsky scandal. Starr's investigation led to the impeachment trial of Clinton which ended in acquittal in February of 1999.

Starr's activities again raised all of the controversies over the appropriateness of independent counsels. He was criticized for being partisan in his inquiries and for running up major expenses, totaling $40 million by late 1998. For all of the expense and effort, few convictions actually resulted. Ironically, in 1999 Starr testified before Congress in opposition to extending the independent counsel portions of the Ethics Act.

counsel have steadily grown. Two White House aides to President Reagan were convicted of wrongdoing in 1987 and 1988. The Morrison decision acted to uphold their convictions though one of the convictions was later overturned. Reagan's attorney general Edwin Meese III resigned in 1988 following an investigation which reported possible wrongdoing by Meese. From 1986 to 1993 an independent counsel investigated what was known as the Iran-Contra Affair involving secretly selling arms to Iran and using the funds to finance a war in Nicaragua. Several Reagan administration officials were convicted of wrongdoing related to the operation. Perhaps best known were the ongoing investigations of President Bill Clinton (1993–) and his staff on numerous charges of wrongdoing, ranging from financial to sexual misconduct. Kenneth W. Starr served as independent counsel from 1994 to 2000.

Suggestions for further reading

Carville, James. And the Horse He Rode In On: The People v. Kenneth Starr. New York: Simon & Schuster, 1998.

Gormley, Ken, and Elliot Richardson. Archibald Cox: Conscience of a Nation. Reading, MA: Addison-Wesley, 1997.

Harriges, Katy J. The Special Prosecutor in American Politics. Second edition. Lawrence: University Press of Kansas, 2000.

Schmidt, Susan, and Michael Weisskopf. Truth at Any Cost: Ken Starr and the Unmaking of Bill Clinton. New York: HarperCollins, 2000.