Great Scott! Judge Brett Kavanaugh said he would like to deliver the final nail in the coffin to the Morrison decision, which spoke to the constitutionality of an independent counsel. Some have argued it’s unconstitutional, as it increases the power of the judiciary over the executive branch. Judge Kavanagh, President Trump’s nominee for the Supreme Court, made these remarks at an American Enterprise Institute event in 2016 (via NBC News):
Two years before President Donald Trump nominated him to a seat on the Supreme Court, federal appeals courts Judge Brett Kavanaugh said he believes the legal precedent that allows for independent counsels to investigate government officials for federal crimes should be overturned.
Asked at a conservative event in 2016 to name a case that he believed should be overturned, Kavanaugh named Morrison v. Olson, a Supreme Court ruling upholding a 1978 law that creates a system for independent counsels to investigate and potentially prosecute government officials for federal crimes. The law had five-year sunset provisions and was allowed to expire in 1999, according to the Congressional Research Service.
"It's been effectively overruled, but I would put the final nail in…”
[…]
After the law expired, new regulations allowed for the appointment of "special counsels," but unlike independent counsels, special counsels answer to the U.S. attorney general.
The president's campaign is under investigation by a special counsel, Robert Mueller, as part of the ongoing federal probe into Russian interference in the 2016 U.S. election. The president has called the investigation a "witch hunt" and the White House has insisted that Trump could fire Mueller if he wanted to. The president has also asserted that he has the "absolute right" to pardon himself.
Trump is under federal investigation and is trying to appoint his own judge to put him above the law.
— CAP Action (@CAPAction) July 18, 2018
Kavanaugh was asked in 2016 to name any precedent he’d like to overturn. He chose the ruling upholding independent counsels and promised to "put the final nail in.” Watch: pic.twitter.com/WCQV6ulz4i
You can see the script now from the Left, right? Fix bayonets! They’re coming charging, except the Morrison opinion was apparently a crappy legal decision that’s mostly been discarded. The act from which this issue arose—the Independent Counsel Act—was allowed to expire in 1999 (via Weekly Standard):
The law was challenged as a violation of the separation of powers. The Rehnquist majority dealt with the law's appointment and removal provisions before turning to the separation of powers. Scalia said the majority's approach to the case was "backwards" and instead began his opinion with a discussion of separation of powers that drew upon The Federalist. Scalia wrote that the principle "is the absolutely central guarantee of a just government" and that "without a secure structure of separated powers, our Bill of Rights would be worthless."
Scalia identified the powers the Constitution vests in the three departments of government and declared, "That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that [quoting James Madison] 'a gradual concentration of the several powers in the same department' can effectively be resisted" and, by implication, our rights preserved.
"Frequently," Scalia continued, "an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf."
That last sentence is arguably the most famous passage in a Scalia opinion. The quarterly legal journal Green Bag produces bobbleheads of the justices. The collectibles have visual allusions to especially characteristic opinions, and Scalia's bobblehead includes a wolf and has the justice standing on a dictionary, an allusion to his keen ability to use words—indeed, to his distinction as a master stylist, on display in this passage (and elsewhere) in his dissent in Morrison.
The legal writer Yury Kapgan points out that the metaphor of the wolf clad in sheep's clothing does not convey the usual message that appearances can be deceiving but "just the opposite," as the reader learns from the revelation at paragraph's end that "this wolf comes as a wolf." There is, writes Kapgan, "no disguise here, no sheep's clothing, appearances are what they are—clear." And precisely because "this wolf comes as a wolf," there is really no need for "careful and perceptive analysis" for the simple reason that the potential of the asserted principle to change the equilibrium of power is immediately evident. "This wolf" will effect an unconstitutional change in the balance of powers.
In his analysis of the statute, Scalia relied on constitutional text, pointing out that Article II vests not some but all of the executive power in a president. And because it does, the independent counsel law must be unconstitutional "if the following two questions" are answered affirmatively: "Is the conduct of a criminal prosecution .??.??. the exercise of purely executive power?" and "Does the statute deprive the President of the United States of exclusive control over the exercise of that power?" Scalia said they must be answered affirmatively: the first because "governmental investigation and prosecution of crimes is a quintessentially executive function," the second because "the whole object of the statute" is to deny a president exclusive control over the exercise of purely executive power.
Justice Elena Kagan regarded the dissent written by the late great Justice Antonin Scalia, he was the lone dissenter, as “one of the greatest dissents ever written and every year it gets better.” The late Janet Reno, who served as attorney general under Bill Clinton, also acknowledged that the law at the time was flawed and unable to be fixed through measures within our Constitution. This is what Sen. Dick Durbin’s (D-IL) had to say about the act for the Senate Committee on Governmental Affairs back in 1999:
Four years ago, I voted to reauthorize this law. A number of my Republican colleagues came to me and said that there had been excessive efforts made under this law that cannot be justified. I thought they overstated the case. They did not. I sit here today readily acknowledging to the Chairman and other members of the panel that I made a mistake in that vote.
I hope that we can rectify that mistake in the actions that we are about to take in this Committee. Our form of government is grounded on the premise that unchecked power is tyranny. The independent counsel is unchecked, unbridled, unrestrained, and unaccountable.
Our system of justice is grounded on the presumption of innocence and the belief that it is better for a wrongdoer to go unpunished than an innocent man be wrongly convicted.
Statements by the Independent Counsel Smaltz in the Espy case, the actions of other independent counsels make it clear that this basic rule of law in America has too often been ignored. Let me read to you the words of Archibald Cox when he wrote, ``Independent counsels must see their function not as pursuit of a target to be wounded or destroyed, but as an impartial inquiry with as much concern for public exoneration of the innocent as for indictment.'' Unfortunately, this message has been lost.
So, it’s another salvo that fell flat. Newsweek noted that legal experts are saying that special counsels and independent counsels are two different things:
"Special counsels are an entirely different creature," Jonathan Turley, a law professor at George Washington University, told Newsweek. "They are special but they are not independent."
What Turley means is that the1988 ruling that Kavanaugh is referring to gave a large amount of freedom to the counsel in its investigation, with barely any rules or oversight in how the counsel proceeded with its examination. Special counsels, on the other hand, are regulated and consistently checked on by the attorney general within the Department of Justice.
While the expert says that there is "no doubt that this is likely to be a significant subject" in Kavanaugh's confirmation hearing, it is important lawmakers recognize these differences before making assumptions that Kavanaugh would automatically deem Mueller's investigation unconstitutional.
Still, Turley said people are correct in assuming that Kavanaugh would be very supportive of Donald Trump in this probe if he were to be appointed to the Supreme Court.
"There's no question Kavanaugh has a robust view of presidential power and he is sympathetic to presidents who face criminal or civil investigations," he said. But that deference is also matched by Kavanaugh's loyalty to federal agencies.
David Fontana, a law professor at George Washington University, agreed with Turley and said that there is no way to possibly say that Kavanaugh would automatically view the Mueller probe as unconstitutional. Even if a five-justice majority featuring Kavanaugh were to overrule the Morrison v. Olson decision it is still likely that Mueller's investigation will be found constitutional, Fontana told Newsweek.
Overreach thy name is Democrat. So far, the fight tooth and nail war cries have made headlines, but little in placing any measurable amount of pressure on this nomnation, a tacit admission from the Left that Kavanaugh will be confirmed? Probably.
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