During the Reagan administration, Assistant Attorney General Theodore was alleged to have testified untruthfully to a Congressional committee.
The Rehnquist Court (1988-1990). Seated, from left to right: Justices Thurgood Marshall and William J. Brennan, Chief Justice William H. Rehnquist, and Justices Byron R. White and Harry Blackmun. Standing, from left to right: Antonin Scalia, John Paul Stevens, Sandra Day O'Connor, and Anthony M. Kennedy
Morrison v. Olson involved a constitutional challenge to the Ethics in Government Act (EIGA) of 1978.
During the 1972 presidential campaign, the Committee for the Re-election of President Nixon--nicknamed by Nixon’s critics as CREEP enlisted several individuals to surreptitiously enter the Democratic National Headquarters located at the Watergate Hotel complex in Washington, D.C. What they were searching for remains a matter of controversy. Following the break-in, the men were arrested and charged with burglary.
The Watergate Hotel Complex
President Nixon had no knowledge of, or participation in, the break-in itself.
However, recordings of White House conversations between the President and his closest advisors revealed his participation in discussions about raising money to pay the burglars in return for their silence about the involvement of CREEP.
This unsuccessful effort became known as “the coverup.”
The Constitution provides a two-step process Congress process to impeach and remove the President. First, “The House of Representatives . . . shall have the sole Power of Impeachment.”
The House of Representatives approves, by majority vote, “Articles of Impeachment” that charge the President with engaging in “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, Sec. 4. Second, “The Senate shall have the sole Power to try all Impeachments.” Art I, Sec.3, Cl. 6.
In 1973, President Nixon had appointed Elliott Richardson as his Attorney General. In response to pressure from Congress, Richardson appointed Archibald Cox as a special prosecutor to investigate the Watergate incident. Mr. Cox issued a subpoena to the White House for the secret recordings made in the Oval Office.
Under the regulations in effect at the time, Nixon could not fire the special prosecutor himself; only the attorney general could. On the evening of Saturday, October 20, 1973, Nixon ordered Richardson to dismiss Cox. Richardson refused to fire Cox, and resigned in protest.
After Richardson’s resignation, William Ruckelshaus, the number two person at the Justice Department, was elevated to the post of acting attorney general. Nixon then ordered Ruckelshaus to fire Cox. Ruckelshaus also refused to fire Cox, and resigned.
The process would repeat itself one more time. After Ruckelshaus’s resignation, Solicitor General Robert Bork was third in line at the Justice Department.
Now, Nixon ordered Bork to fire Cox. As acting Attorney General, Bork agreed, and removed the Special Prosecutor.
Shortly thereafter, Nixon authorized Bork to appoint a Leon Jaworski as a new special prosecutor.
Attorney General Elliot Richardson
Deputy Attorney General Elliott Richardson
Solicitor General, and Acting Attorney General Bork
Special Counsel Archibald Cox
Special Counsel Leon Jaworski
On July 24, 1974, the Supreme Court ruled unanimously in United States v. Nixon that the President could not block the subpoena. Three weeks later, Nixon became the first President to resign from office.
President Ronald Reagan
Morrison v. Olson
The Appointments Clause provides two paths to appoint federal officers, depending on whether they are considered to be “principal” or “inferior” officers. First, “principal officers,” such as “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States” must be nominated by the President and confirmed by the Senate. Second, “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Chief Justice Rehnquist wrote that the independent counsel is “an inferior officer because she is inferior in rank to the Attorney General . . . because she has limited jurisdiction and . . . because the office of independent counsel is of limited duration in tenure.”
“We do not think that in this case the good cause removal restriction contained in the Act unduly interferes with the President’s exercise of executive power and his constitutional duty to ensure that the laws are faithfully executed.”
“Notwithstanding the fact that the counsel is to some degree ‘independent’ and free from executive supervision to a greater extent than other federal prosecutors, in our view these features of the Act give the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.”
“Limiting removal power to ‘good cause’ is an impediment to, not an effective grant of, Presidential control.”
Justice Scalia explains that under the Court’s decision, this power can be “exercised by someone who is not entirely subject to the control of the President, a mini executive so to speak with jurisdiction over a very small, although in my view, a very important area.”
“The independent counsel,” he said, “is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President).”
“In the dictatorships of the modern world, Bill of Rights are a dime of dozen. What makes ours work is a governmental structure, a constitution of government designed by 55 extraordinarily wise national leaders over the course of a four-month convention 200 years ago last summer."
"That structure was designed to prevent an excessive governmental power which is always the first threat to liberty from coalescing. To achieve that, two principles were absolutely central. One was the separation of powers among three branches. Second was an equilibration of powers so that none of the three branches could become too strong.”
“Frequently 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.”
During the Reagan administration, Assistant Attorney General Theodore Olson was alleged to have testified untruthfully to a Congressional committee. After a lengthy investigation, the House of Representatives submitted a report to the Attorney General. It alleged that Olson violated the law. This report triggered a process, pursuant to the EIGA, that resulted in the appointment of an “independent counsel.”
First, based on the committee report, the Attorney General determined that there were “reasonable grounds to believe that further investigation or prosecution is warranted.” Second, when such a finding is made, the EIGA called for a special three-judge panel of the Court of Appeals for the D.C. Circuit to “appoint an appropriate independent counsel” and “define that independent counsel’s ‘prosecutorial jurisdiction.’” In 1986, a three-judge panel appointed Alexia Morrison as the independent counsel.
Olson argued that Morrison’s appointment was unconstitutional for two reasons.
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