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Justice Scalia's Strong Words on the Independent Counsel Act

By John J. LaFalce / February 9, 1998



In the 1988 case of Morrison v. Olson, the Supreme Court upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978. But one justice dissented: Antonin Scalia.

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Many now believe Justice Scalia was prescient. In his lone dissent, he asked:

"Does [the Act] not invite what Justice Jackson described as 'picking the man and then searching the law books, or putting investigators to work, to pin some offense on him?'... Frequently an issue of this sort will come before the Court clad, so to speak, in sheeps clothing ... [b]ut this wolf comes as a wolf."

Under the act, the attorney general is required to apply to a special three-judge panel for appointment of an independent counsel unless "there are no reasonable grounds to believe that further investigation or prosecution is warranted." That is not a high threshold. And once appointed, an independent counsel can, upon request, have his or her jurisdiction expanded infinitely.

Justice Scalia argued that the act violates the most basic and vital principle of separation of powers. Our Constitution divides the government into three distinct branches: legislative, executive, and judicial. The courts have consistently interpreted executive power to include all investigative and prosecutorial powers.

The Independent Counsel Act, however, vests a court appointee with the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General." In so doing, Justice Scalia said, the act creates a system that has the judicial branch intrude severely upon exclusive executive-branch power.

Justice Scalia argues that the act deprives the executive branch of its constitutional authority over investigatory and prosecutory functions. He notes that, "[U]nder our system of government, the primary check against prosecutorial abuse is a political one." Since federal judges are immune from the political process because they are appointed for life, their actions are not subject to the correction the Founding Fathers deliberately placed on runaway prosecutions - the ballot box.

Scalia used the following example:

"What if [the judicial panel is] politically partisan, ... and select[s] a prosecutor antagonistic to the administration, or even the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one." In contrast, ordinary prosecutors are selected and removed by the president. If crimes aren't investigated and prosecuted fairly, the president pays the price politically.

Justice Scalia further argues that when an allegation of wrongdoing is made in an ordinary case, the attorney general has discretion whether to pursue an investigation. But the mere request for appointment of an independent counsel almost compels a criminal investigation. Without an ability to procure evidence to contradict each and every allegation, it is nearly impossible to justify a finding that further investigation is unnecessary.

Justice Scalia thoughtfully noted:

"Besides weakening the presidency ... it must also be obvious that the institution of the independent counsel enfeebles him ... [n]othing is so politically effective as ... to charge that one's opponent and his associates are ... crooks. The present statute provides ample means for that sort of attack, assuring that massive and lengthy investigations will occur...."

In the criminal justice system, prosecutors generally begin by investigating a particular crime, and then attempt to identify and prosecute the guilty individual. But the independent counsel law encourages the opposite. Independent counsels focus on their target and then justify their very existence and extraordinary expenses by finding some type of criminal conduct, no matter how minor, and no matter how unrelated to the original facts giving rise to the inquiry.

In strong criticism of his brethren, Justice Scalia stated:

"The notion that every violation of law should be prosecuted, including - indeed, especially - every violation by those in high places, is an attractive one.... Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value.... By its shortsighted action today, I fear the Court has permanently encumbered the Republic with an institution that will do great harm."

* John J. LaFalce is a Democratic congressman from New York.