The Info List - Morrison V. Olson

Morrison v. Olson, 487 U.S. 654 (1988), is a United States federal court case in which the Supreme Court of the United States
Supreme Court of the United States
decided that the Independent Counsel Act
Independent Counsel Act
was constitutional.


1 Facts 2 Holding 3 Justice Scalia's dissent 4 Aftermath 5 See also 6 References 7 Further reading 8 External links

Facts[edit] 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
Theodore Olson
was the Assistant Attorney General for the Office of Legal Counsel. President Ronald Reagan
Ronald Reagan
ordered the Administrator of the EPA
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
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. Holding[edit] 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 could not 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
U.S. Congress
or the courts. Justice Scalia's dissent[edit]

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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[who?] began to share his concern when in 1992, four days before the US presidential election, Lawrence Walsh announced the re-indictment of former defense secretary Caspar Weinberger
Caspar Weinberger
on charges related to the Iran-Contra
affair. Critics[who?] also sensed partisan politics when Walsh's office leaked a note suggesting President Bush had lied about his connections to the affair. Liberals[who?] also began to share Scalia's concern when independent counsel Kenneth Starr
Kenneth Starr
spent $40 million and more than four years investigating President Clinton's land deals and extramarital affairs. Many[who?] believed the investigation was plagued by partisanship. Aftermath[edit] Congress let the Independent Counsel Act
Independent Counsel Act
expire in 1999. The New York Times
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
Mike Tyson
usually hits his opponents.'"[1] 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.[2] In April 2006, a court rejected Libby's argument, citing the precedent in Morrison.[3] During the Supreme Court's oral arguments in Hollingsworth v. Perry, Olson briefly referred jokingly to the independent counsel law.[4] In a 2013 interview with New York magazine, Justice Scalia described Morrison v. Olson
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."[5]

See also[edit]

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
List of United States Supreme Court cases
by the Rehnquist Court


^ Hulse, Carl; Kirkpatrick, David D. (December 2, 2005). "After Memo, Democrats Are Taking Firmer Stance Against Alito Nomination". New York Times.  ^ Leonnig, Carol D. (February 24, 2006). " Special
Counsel in Plame Case Invalid, Libby Contends". Washington Post.  ^ http://justoneminute.typepad.com/main/files/Libby_060427_Fitz_Constitutional.pdf ^ "Transcript And Audio: Supreme Court Arguments On California Gay Marriage Ban". NPR.org. March 26, 2013. Retrieved October 20, 2017.  ^ "In Conversation: Antonin Scalia". NYMag.com. October 2013. Retrieved October 20, 2017. 

Further reading[edit]

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.  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. 

External links[edit]

Text of Morrison v. Olson, 487 U.S. 654 (1988) is available from:  Findlaw