Your argument that Morrison v. Olson is bad constitutional law, and deserves to be unmasked as such, is creative and eloquent. After all, it did bring us the Lewinsky investigation, and a wearying presidential impeachment trial. I have reread your article on “Intratextualism” that will appear in the forthcoming issue of Harvard Law Review, and I agree that the independent counsel law–built in the days of Watergate–remains a constitutional oddity. To whom is the special prosecutor inferior? Why can’t the president, as head of the executive branch, fire him? Et cetera, et cetera.
But Congress spent five years hashing over these precise arguments before enacting the statute in 1978, and was apparently satisfied with the oddity it had created. Constitutional scholars of great stature, including Paul Freund, Philip Kurland, and 49 deans of American law schools endorsed the statute. The Supreme Court had ten years–before deciding Morrison in 1988–to absorb the appointments clause, removal clause, and separation of powers arguments. Still, it concluded that the special prosecutor law was constitutionally valid. And I agree. It is not the prettiest statutory creature. But it gets the job done in the blurry realm where three branches of government intersect. It represents Congress’ best shot at dealing with the complex situation in which the executive branch is charged with investigating itself, in sensitive cases (like Watergate) that threaten to destroy public trust in our system of government.
You say that the “Watergate model,” by which Archibald Cox was appointed by the executive branch (and fired by President Nixon), worked. I disagree. If you read the five chapters of my book relating to Watergate, you will see that President Nixon came very close to succeeding in his plan to shut down the investigation. He failed only because of Cox’s strength of character, the fact that there were very few college football games televised the day of Cox’s final press conference, and other twists of fate. The country came very close to experiencing a constitutional meltdown due to the “Saturday Night Massacre.” That is why, nine days later, both Democrats and Republicans in Congress introduced legislation to create a special prosecutor law.
Although you make a skillful argument that the Supreme Court has recently repudiated its decision in Morrison, in the 1997 Edmond case, I remain unconvinced. I have read Edmond carefully. I see it as an obscure case dealing with military law, in which the court had ample opportunity to take a potshot at Morrison, but scrupulously avoided doing so.
Perhaps more important, I believe that the chances of the present court overruling Morrison are no higher than the chances of Pittsburgh winning the NBA championships (we have no professional basketball team). Would the court announce that it botched a 7-1 decision, authored by Chief Justice Rehnquist, in order to claim credit for setting into motion the Lewinsky nightmare that tore our nation apart for over a year? I’d put my money, first, on Pittsburgh’s basketball team.
Certainly, mere mortals and law professors can disagree over what the law should be, in a perfect world. But unless I hear otherwise from the Supreme Court, I am assuming that the independent counsel statute is still constitutional. If you can suspend your disbelief on that subject for a while, I would be fascinated to hear what you have to say on two other important questions. First, assuming the independent counsel statute can be retained by Congress in some form when it comes up for reauthorization in June, do you really believe that this is a bad thing for the country, as a policy matter? What would you suggest in place of this statutory framework? Anything? Second, if Congress does renew the statute in some form–as much as you might disapprove of that step–what features of the present statute would you be most anxious to scrap or amend?
If you are willing to answer my first question tomorrow, understanding that this exercise will no doubt cause you great intellectual discomfort, I will at least promise not to reveal your reply to the justices.