Bench Memos

Law & the Courts

Greenhouse’s Reversal of Judgment

In a recent column on Bill Clinton and Kenneth Starr, Linda Greenhouse offers effusive—and appropriate—praise for Justice Scalia’s solo dissent in Morrison v. Olson, the 1988 case rejecting a separation-of-powers challenge to the independent-counsel statute:

It was a dissenting opinion of which he was deservedly proud, even perhaps his best work. His words were prescient, his analysis airtight. [Emphasis added.]

Greenhouse goes on to quote from Scalia’s dissent for three paragraphs.

In case you were wondering, Greenhouse had a very different reaction to Scalia’s dissent back in 1988, as she referred to its “fevered tone” and quoted only a four-word “sarcastic reference” in it. The New York Times editorial board, influenced by Greenhouse’s take, called Scalia’s arguments “more political than legal” and said that the independent-statute was “right in purpose and obedient to the Constitution” and “is here to stay.” Indeed, six months after the Morrison ruling was issued, Greenhouse was lamenting that the independent counsel might not be “sufficiently independent to handle a politically explosive case”—in other words, that the independent-counsel statute might not have intruded enough on presidential power.

Greenhouse’s reversal of judgment dates, it would seem, from the use of the independent-counsel statute against President Bill Clinton and others in his administration. As Greenhouse observed in a 1998 article, the independent-counsel statute was based on a “premise that now appears stunningly naïve: that government could somehow be walled off from politics.” She noted that “Democrats have come to share the intense distaste that many Republicans have long expressed for the statute” and that, having once praised the Morrison ruling, they were “find[ing] an eerie prescience in Justice Antonin Scalia’s impassioned” dissent:

Liberals dismissed the Scalia opinion as overheated rhetoric and sour grapes. They see it differently now.

By the way, in her recent column Greenhouse criticizes Donald Trump for calling for a “special prosecutor” to investigate whether Clinton Foundation donors received special favors from Hillary Clinton when she was secretary of state. Greenhouse contends that “there is no basis for such an appointment” and that Justice Scalia would condemn the proposal as “a truly terrible idea.” But in the aftermath of the expiration of the independent-counsel statute, Department of Justice regulations have enabled the Attorney General (or the acting AG) to appoint a “special counsel” when a criminal investigation is warranted and would present a “conflict of interest” for the Department or “other extraordinary circumstances.” (Remember the Valerie Plame leak investigation and the prosecution of Scooter Libby?) And Scalia’s central objections to the independent-counsel statute—the selection of the independent counsel by a panel of judges and the statutory limitations on the president’s ability to remove the counsel—don’t apply to the special-counsel regulations. 

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