Morrison v. Olson

The case involved subpoenas from two subcommittees of the United States House of Representatives that directed the Environmental Protection Agency (EPA) to produce documents relating to the efforts of the EPA and the Land and Natural Resources Division of the Justice Department to enforce the Superfund law. Theodore Olson was the Assistant Attorney General for the Office of Legal Counsel. President Ronald Reagan ordered the Administrator of the EPA to withhold the documents on the grounds that they contained "enforcement sensitive information." This led to an investigation by the House Judiciary Committee that later produced a report suggesting Olson had given false and misleading testimony before a House subcommittee during the investigation.

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.

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. Instead, even though the President cannot directly fire an Independent Counsel, the person holding that office was still an officer of the Executive branch and not under the control of either the U.S. Congress or the courts.

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.

In his opinion, Scalia also 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."

Conservatives like Senator Bob Dole began to share his concern when, four days before the 1992 U.S. presidential election, Lawrence Walsh announced the re-indictment of former defense secretary Caspar Weinberger on charges related to the Iran–Contra affair.[2] Critics also sensed partisan politics when Walsh's office leaked a note suggesting President Bush had lied about his connections to the affair.

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.[3] Many believed the investigation was partisan.

Congress let the Independent Counsel Act expire in 1999.

The New York Times wrote, "[i]n an introduction he gave shortly after the case was decided, (then) Judge Alito said the decision hit the separation of powers doctrine 'about as hard as heavy-weight champ Mike Tyson usually hits his opponents.'"[4]

In February 2006, lawyers for I. Lewis "Scooter" Libby, Vice President Dick Cheney's former top aide, argued that Special Counsel Patrick J. Fitzgerald lacked the legal authority to bring charges against him.[5] In April 2006, a court rejected Libby's argument, citing the precedent in Morrison.[6]

In a 2013 interview with New York magazine, 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."[7]

• List of United States Supreme Court cases, volume 487
• List of United States Supreme Court cases
• Lists of United States Supreme Court cases by volume
• List of United States Supreme Court cases by the Rehnquist Court

• Carter, Stephen L. (1988). "The Independent Counsel Mess". Harvard Law Review. 102 (1): 105–141. doi:10.2307/1341449. JSTOR 1341449.
• Dangel, Stephanie A. J. (1990). "Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent". Yale Law Journal. 99 (5): 1069–1088. doi:10.2307/796596. JSTOR 796596.
• 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. ISSN 0003-1453.
• Martin, John R. (2000). "Morrison v. Olson and Executive Power Note". Texas Review of Law & Politics. 4 (2): 511–541.
• Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press. pp. 191–210. ISBN 978-0-8070-0036-6.

• Text of Morrison v. Olson, 487 U.S. 654 (1988) is available from:  Findlaw  Google Scholar  Justia  Library of Congress  Oyez (oral argument audio)