The Wolf of Washington

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The New York Sun

It looks like the ghost of Morrison v. Olson is going to haunt the confirmation hearing of President Trump’s nominee to be attorney general. Morrison is the Supreme Court case that okayed the independent counsel law. It’s going to haunt the confirmation hearing because Mr. Trump’s nominee, William Barr, has a record of supporting a strong president with inherent powers.

The Democratic press is already beating the drums on this head. The New York Times is out with a weekend editorial saying it’s “heartening” that Mr. Barr “hasn’t come out swinging against Morrison v. Olson.” It reckons that “the Republican Party and conservative thinking on independent counsels and special prosecutors have evolved dramatically since the 1980s and ’90s.”

Not all of them. On independence in prosecutors, we, for one, are today right where we were when Special prosecutor Archibald Cox, tried to short-circuit the impeachment process and go after, in Richard Nixon, the president under whom he served. Nixon had him fired. We’ve been against every independent prosecutor since then, no matter they’ve been after Republicans or Democrats.

Just saying. The Senate, the Times predicts, will “surely press Mr. Barr” on the current special prosecutor, Robert Mueller. It notes, en passant, that Justice Kavanaugh has said he’d “put the final nail” in the Morrison precedent. It fails to mention that Mr. Kavanaugh concluded Morrison was wrong through having seen from the inside how an independent counsel pursued President Clinton.

That independent counsel was Ken Starr. His prosecution was so shocking that when the independent counsel law came up for renewal, Congress let it pass into history. That, in our estimation, was a rejoinder to Morrison v. Olson more devastating than any courts’ — and by the branch of our government that wrote the independent counsel statute in the first place. Special counsels are all we have left.

So by all means let the Senators take up Morrison v. Olson when Mr. Barr comes before the Judiciary Committee. The nominee, after all, was attorney general when the most disgraceful independent counsel, Lawrence Walsh, hinted that he might go after President George H.W. Bush. That was in 1992, when Walsh filed an indictment mentioning Bush four days before Bush was up for re-election.

The indictment in which Walsh did that was of President Reagan’s ex-defense secretary, Caspar Weinberger. President Bush turned around and pardoned Weinberger and five other figures who’d been ensnared by the independent counsel. The Times reckoned Bush had, in effect, pardoned himself. Given the predicament Mr. Trump is in, let’s get that all on the table in the forthcoming hearing.

What we believe the Senate will conclude is that Justice Antonin Scalia was correct when he warned that prosecutors operating independently of a president are inherently unconstitutional. Permitting a president to be endlessly harried by an independent counsel, with huge budgets and no time constraints, risks, Scalia warned, affecting the “boldness of the president.”

Mr. Mueller, with his strategy of dripping out information and threatening to target the president’s children, is Scalia’s worst nightmare. Had Mr. Trump not been made of sterner stuff, he might have caved by now. In Morrison, Scalia was worried about the way independence in a prosecutor breaches separated powers, the central feature by which our Constitution protects American liberty.

The threat was clear, Scalia wrote: “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.” In respect of independent prosecutors, he added, “this wolf comes as a wolf.”

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Image: National Park Service photo via Wikipedia.


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