Two weeks ago, the Justice Department issued a public notice inviting applicants “‘to refer anyone who had any information’ that might build a case against [George] Zimmerman for either a civil rights violation or a hate crime.” It reminded me of something in Justice Antonin Scalia’s dissent in Morrison v. Olson, 487 U.S. 654 (1988), a decision in which the Supreme Court upheld the constitutionality of the Independent Counsel. Among the many prescient observations in his dissent, Scalia noted:
. . . . One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff will be inadequate. … It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
. . . .
. . . . Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him”?
. . . . I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case.
As far as I can tell, the DOJ is still devoting a portion of its limited resources to sifting through tips at the email address established for the purpose of pinning some offense on George Zimmerman, who, though recently acquitted, is still personally obnoxious to the Attorney General.
On a completely different topic, slippery slopes, like the ones Scalia warned about in Morrison, are real. Scalia and his insistence on the Constitution’s separation of powers doctrine sadly did not carry the majority in Morrison. Instead, the Court adopted a pragmatic – i.e., unprincipled – approach in upholding the constitutionality of the new prosecutorial office, largely unaccountable to the executive.
All Americans would come to regret it.
Republicans came to rue the decision when Independent Counsel Lawrence Walsh announced the indictment of President George H. W. Bush’s defense secretary Caspar Weinberger four days before the 1992 election. Walsh’s office also leaked a note suggesting that President Bush lied when he said he was “out of the loop” on Iran-Contra decisions.
Democrats came around six years later when Independent Counsel Kenneth Starr’s investigation of President Bill Clinton culminated in his impeachment in 1998. It was then that no less than Senate Democratic Whip Harry Reid extolled “the very articulate, brilliant Supreme Court Justice Antonin Scalia,” who in his “visionary” Morrison dissent “predicted what we are now witnessing.”
To paraphrase another memorable Scalia quote, the Morrison decision did not “involve” the political abuses our country suffered only if one entertains the belief that principle and logic have nothing to do with the decisions of the Court. But we did. And they do.