Reluctantly, I agree that the independent counsel statute is unconstitutional. I say “reluctantly” because, when the statute’s constitutionality was under attack in Morrison vs. Olson, I wrote an amicus brief in the Supreme Court defending the statute on behalf of Iran-Contra Independent Counsel Lawrence Walsh. But I have since concluded that an independent counsel with a potentially unlimited budget and the power to topple a president cannot be deemed an “inferior” officer simply because he can be removed for cause or disability. I now agree with the position Justice Scalia defended in his dissent in Morrison: Congress violated the Constitution when it provided for the appointment of independent counsels by a special panel of three judges, rather than by the president with the advice and consent of the Senate.
That said, I am not optimistic about the prospects for a Supreme Court decision overruling Morrison any time soon. Four of the justices now sitting have voted in the past to uphold the independent counsel statute. Chief Justice Rehnquist wrote the Morrison opinion, which Justices Stevens and O’Connor joined, and in upholding the statute, Rehnquist vindicated then-Judge Ruth Bader Ginsburg, who had dissented from the appeals court decision the Morrison court reversed. Unless one or more of those four justices was to confess error on the statute’s constitutionality, it would take only one more vote of support out of the remaining five justices for the statute to be upheld. Justice Souter could well provide that vote, having noted in a 1994 decision, Weiss vs. United States, his agreement “with the approach of then-Judge Ginsburg in her Court of Appeals opinion in the independent-counsel case.” Justice Breyer, often a pragmatist, seems another likely source of that fifth vote.
Head counts aside, although the result in Morrison is hard to square with the supervision criterion emphasized in Edmond vs. United States, if the court had intended in the latter case to set forth a doctrine that would spell doom for Morrison and the independent counsel statute, it seems a virtual certainty that the chief justice, or Stevens or O’Connor, would have concurred separately to disclaim any such implication. Edmond, however, was a relatively obscure case dealing with the judges of the Coast Guard Court of Criminal Appeals; it seems doubtful the court would be willing now to treat it as having worked a radical change in the law requiring overruling the far more prominent Morrison precedent (which the Edmond opinion cited).
Beyond this difficulty, it would be incongruous, and demoralizing for the nation, for President Clinton, while in office, to challenge Kenneth Starr’s authority by attacking the constitutionality of the very statute Clinton signed into law. (Such a challenge might arise were Starr to attempt to subpoena Clinton to complete his Whitewater investigation.) Once the president, having taken an oath to preserve and protect the Constitution, has signed such a law, it is more than awkward for him to say “never mind” once the law is turned in his direction rather than being aimed at others. Even if Edmond should figure prominently in any brief urging the court to revisit Morrison, it is unlikely that it could provide cover for a president seeking to explain how he suddenly “got religion” on this subject. The Supreme Court, under no obligation to take the president’s case, would be hard pressed to stomach a challenge by that ever-artful dodger to the statute he signed into law. Rather, Clinton should pray for some other, more credible, challenger to reach the court first.
With the Starr report finally dumped in its lap, Congress could hardly be asked to ignore the evidence handed to it because the collector of that evidence turns out to have been unconstitutionally empowered to gather it. But Clinton could conceivably raise a challenge to the independent counsel statute if Starr was to prosecute after Clinton leaves office–whether in disgrace or at the timely conclusion of his term. But if Starr was to launch such a prosecution, a challenge to his role could be futile, for prosecution could simply be handed over to the Department of Justice. Should that come to pass, any constitutional defect in the law that made Starr into Independent Counsel Starr would be no more than an interesting but irrelevant curiosity.