The Law: The President and the Independent Counsel: Reflections on Prosecutors, Presidential Prerogatives, and Political Power

It is rare when a lone dissenting opinion of a U.S. Supreme Court case becomes front-page news, let alone is treated as if its content were prophetic and profound. Yet, during 1998 and 1999, Justice Antonin Scalia surely took some pleasure in the sudden favorable coverage of his biting dissent in the 1988 decision Morrison v. Olson(1) upholding the constitutionality of the independent counsel statute. In his dissent, Scalia characterized the independent counsel law as one "acrid with the smell of impeachment" and with enormous potential to seriously damage the presidency and undermine executive authority. On the other hand, the rest of the Court viewed the statute as a limited and constitutional intrusion into the traditional power of the executive to control law enforcement, justified by the need for independent investigation of executive misconduct. Who was right? In the impeachment postmortem, the independent counsel statute was allowed to expire, at least in part because many observers believed that Justice Scalia was right. But when we take into account the whole of the crisis and its outcome (Clinton remained in office, the statute expired, and Starr resigned), we should see the merit of the majority's opinion still. The constitutional prerogatives and political resources of the presidency far outmatch those of an independent counsel and are likely to continue to, despite concerns that Clinton's survival comes at the cost of the institutional presidency (Pious 1999-2000; Rozell 1998). Clinton survived because of his skillful use of the political resources of the presidency, not in spite of them. The president's political sources of authority matter more than the legal sources, and the strength of the presidency ultimately rests on these advantages more than on particular legal doctrines that have developed in an effort to define the parameters of his power. Legal Powers and Limitations Clearly, the primary power that independent counsels wield in their investigations of executive branch officers is the ability to use the criminal justice process in pursuit of the truth of allegations of misconduct. They can call grand juries, subpoena witnesses and documents, and use the courts as places to challenge executive claims of privilege and force the subjects of their investigation to cooperate with them. It was in the courts that Watergate Special Prosecutor Leon Jaworski ultimately forced President Nixon to turn over the tapes that contained the evidence of his complicity in the cover-up. It was in the courts where several of the Iran-Contra defendants were successfully prosecuted for their role in the scandal.(2) And if one measured the success of independent counsels only by their successes in the courts, then one would have to conclude that Kenneth Starr was successful in his efforts to ferret out the truth through the courts in the Whitewater/Lewinsky case. The legal supports for presidential power certainly appear to have been undermined by the Clinton scandals. In one conflict after another, when the president or the independent counsel decided to push an issue in the courts rather than resolve their disagreements informally, the president lost. The president and other representatives of the executive branch and the independent counsel battled in the courts over executive privilege,(3) the applicability of attorney-client privilege to government attorneys,(4) and the protective function privilege for Secret Service agents.(5) In each case, the courts found that the demands for evidence in the criminal justice process outweighed the various interests of the executive at stake in these cases (Fisher 1999). In a case that did not involve the independent counsel but that arguably had even greater significance to both Clinton and the presidency, the Supreme Court rejected the claim that a president has immunity while in office from a civil suit over private behavior.(6) It was the Clinton v. …