A brief history of the Independent Counsel Law

Frontline ^ | May 1998 | Jim Mokhiber

[LibFreeUSA]

In its 1988 ruling, the Supreme Court overturned the Appeals Court's decision in a 7 to 1 decision, and upheld the constitutionality of the independent counsel law. The Supreme Court found that Congress did not seek to increase its own powers by passing the law, and held that it did not interfere "unduly" or "impermissibly" with the executive branch's powers. The Court also held that independent counsels were "inferior officers" over which the Attorney General retained ultimate authority through her or his power to recommend appointment or dismissal. For these reasons and others, the majority of the Supreme Court upheld the constitutionality of the law, with Chief Justice Rehnquist writing the majority's opinion.

Alone in his dissent on Morrison v. Olson was Justice Antonin Scalia, who strongly criticized the majority for dismissing the serious separation of powers and fairness issues inherent in the case. Under the Constitution, he argued, the President is given all the executive powers of government -- particularly those of investigation and prosecution -- and it was "ultimately irrelevant how much the statute reduces Presidential control." Any infringement on the executive's power was unconstitutional.

More specifically, Scalia contested the majority's conclusion that independent counsels were "inferior officers" who remained under the executive's ultimate control. An independent counsel, he suggested, actually possessed some powers and advantages that even the Attorney General did not. Scalia worried that an overzealous, unaccountable independent counsel could pick his or her targets, and then prosecute them for even the most minor or technical offenses. Moreover, Scalia wrote, a partisan Special Division might appoint a committed foe of the administration or the individual under investigation. "Nothing is so politically effective," he wrote, "as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, `crooks'." Scalia prophesied that the majority's decision would weaken the Presidency, and expose the head of the executive branch to "debilitating criminal investigations" -- an opinion that has earned Justice Scalia new and unexpected admirers in recent days.....

[TexasGator]

Why is this relevant?

[jjotto]

Note that this concerns Congress’ independent counsel law that is no longer in effect. Mueller is under DOJ internal rules.

[littleharbour]

If only America had an Attorney General. That office has been vacant since January 2017.

[LibFreeUSA]

“no longer in effect”....???

Technically true, but can’t you see that IN EFFECT, isn’t this what is happening now (despite the fact that you are technically correct).....

” Scalia worried that an overzealous, unaccountable independent counsel could pick his or her targets, and then prosecute them for even the most minor or technical offenses. Moreover, Scalia wrote, a partisan Special Division might appoint a committed foe of the administration or the individual under investigation. “