Morrison v Olson

Alan Dershowitz has been telling the world that Trump can’t be charged with obstruction of justice. Rick Pildes at Lawfare explains what he’s ignoring.

The reason, according to Dershowitz, is that the Constitution gives the exclusive power to the President to control all federal law-enforcement investigations—and  thus to shut any of them down for any reason the President sees fit.  In other words, the President can never commit obstruction of justice by shutting down a criminal investigation or prosecution.

But Dershowitz fails to take into account that the Supreme Court has decisively rejected this view.  In Morrison v. Olson (1988), a 7-1 Supreme Court turned back constitutional challenges   to Congress’ creation of the Act that gave us the office of the Independent Counsel—and in doing so, dismissed exactly the argument that Dershowitz now seeks to invoke.

The Ethics in Government Act was created out of the recognition that the President should be taken out of the process of controlling investigations and prosecutions that involved potential crimes by himself or high-ranking government officials—i.e., close aides of the President.

The act was passed in 1978. That seems awfully…delayed.

The Act created a process that could lead to the appointment of an Independent Counsel for this role, and the entire point of the Act was to insulate the Independent Counsel—and hence the investigation and prosecution of crimes involving the President and his or her  top aides—from the President’s complete control.  The Act essentially put the powers of the Department of Justice in the hands of the Independent Counsel:  it vested him or her with the “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General.”

Then, to even further ensure that the President not have unfettered control when potential crimes involving himself and his top aides were at stake, the Independent Counsel, once appointed, was wrapped in several layers of additional insulation from presidential control.  Thus, the only person who could remove the counsel from office was the Attorney General—and, very importantly, the Attorney General could only do that for limited and specific reasons (“good cause”), such as misconduct in office or inability to perform the counsel’s duties.*  If the Attorney General did remove a counsel, the AG had to file a report with Congress and the courts stating the factual basis for this removal.

Ah, but then what if one party is in control of all of them, and has a dismal record of holding its own members to account for violations of law, norms, ethics and the like? What then? I ask because that’s the situation right now, at a time when the worst human being on the planet sits at the apex of the whole thing.

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