Month: August 2025

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A Government of Men

“It is the proud boast of our democracy that we have a ‘government of laws and not of men,’” So opens Justice Scalia’s famous dissent in Morrison v. Olson, 487 U.S. 654, 697 (1987), which I happened to be reading recently (as part of a more extensive project on the unitary executive and presidential removal). This post is to address its relevance in the context of a specific recent event, namely the revelation that the Office of Special Counsel (OSC) has opened an investigation into Jack Smith, a former special counsel (though, confusingly, not the kind of special counsel who serves in OSC).

Scalia’s Dissent

Scalia’s dissent may be thought of as having three parts. The first consists of an extensive and vivid dissection of the independent counsel statute, the constitutionality of which was the issue before the Court in Morrison. Briefly stated, Scalia thought the independent counsel statute effectively allowed Congress to compel criminal investigations of high level executive officials and encouraged the overzealous pursuit of criminal charges against such officials by politically unaccountable prosecutors who were likely to be biased against them. This resulted in a fundamental unfairness which institutionalized “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted.” Morrison, 487 U.S. at 728 (Scalia, J., dissenting) (quoting a speech by Robert Jackson while serving as attorney general). [note: all cites to Morrison hereafter are to Scalia’s dissent].

The second part of Scalia’s dissent consists of his argument that the independent counsel act violated the principle of the unitary executive, which he derived from the first sentence of Article II, that “[t]he executive Power shall be vested in a President of the United States.” This principle requires that all executive power (or at least, as Scalia repeatedly put it, all “purely executive power”) be in the “full control” of the president. There are a number of problematic aspects of this theory, which are the subject of my larger project, but for today we will assume that the theory is correct and that the independent counsel statute, by vesting (purely) executive power in a prosecutor who was largely beyond the direct or indirect control of the president, violated the unitary executive principle.

This brings us to the third part of Scalia’s dissent, which is his attempt to draw a connection between the ills of the independent counsel statute and the constitutional violation. Scalia postulates that presidential control will make less likely that there will be prosecutorial abuse against individuals covered by the law. This is no doubt true since the whole point of the law was, as Scalia notes, to ensure independent investigation “when alleged crimes by [the president] or his close associates are at issue. Morrison, 487 U.S. at 710. Congress feared that prosecutors subject to presidential control would be less likely to vigorously investigate such crimes, and it is a simple logical corollary that they would therefore be less likely to abusively or overzealously investigate them. (By the same token, one could say that federal judges would be less likely to unfairly rule against the president or his friends if he had the power to fire them. Not that I am trying to give anyone ideas.)

But what is Scalia’s basis for suggesting that presidential control of prosecutors will, in general, lead to less prosecutorial abuse? Scalia’s argument requires some reason to believe that presidents are likely, on balance, to restrain rather than encourage such abuse. Otherwise the fact (if it be a fact) that the unitary executive theory requires striking down the independent counsel law is nothing more than a happy coincidence.

Scalia does not explicitly consider the possibility that presidential control could result in overenforcement of criminal law, but he does acknowledge the possibility that presidents will underenforce the law when they or their friends are involved. Morrison, 487 U.S. at 710. He offers this by way of reassurance:

The checks against any branch’s abuse of its exclusive powers are twofold: First, retaliation by one of the other branch’s use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more “dangerous to the political rights of the Constitution,” Federalist No. 78) who are guilty of abuse. Political pressures produced special prosecutors—for Teapot Dome and for Watergate, for example—long before this statute created the independent counsel.

Morrison, 487 U.S. at 711 (citations omitted).

Whatever the effectiveness of the first set of checks, they seem equally potent with regard to an independent counsel as to a president. An independent counsel could be impeached and removed from office. A case brought by an independent counsel could be dismissed for malicious prosecution like any other case. Moreover, unlike a president, an independent counsel could be removed (by the attorney general) for cause. Thus, these structural checks against abuse by an independent counsel were at least as significant as those against presidential abuse.

As for the second set of checks, it is true that independent counsels did not have to worry about how public opinion would affect their next election. But the same is true of presidents in their second term. Moreover, while presidents are subject to political pressure that can cause them to change course (as the appointment of special prosecutors for Teapot Dome and Watergate illustrate), independent counsels were hardly immune from such pressures. After all, they required funding by Congress and could not survive without political support. An independent counsel facing a backlash from public opinion would likely lose political support far more quickly than a president. There thus appears to be little reason to believe that constitutional structure would make presidential abuse of the prosecutorial function less likely than abuse by an independent counsel. Continue reading “A Government of Men”

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The Justice Department’s Problem in Responding to the House Oversight Subpoena for the Epstein Files

Today the House Oversight Committee issued this subpoena to Attorney General Pam Bondi seeking all documents in the possession of the Justice Department relating to Jeffrey Epstein, including documents relating to the investigations of Epstein and his associate, Ghislaine Maxwell, for human trafficking, exploitation of minors, sexual abuse, or related activity.

Ordinarily DOJ would resist producing most, if not all, of the responsive material on various purported privilege grounds, including the “law enforcement” privilege, the attorney-client privilege, and the presidential communications privilege (the subpoena specifically requests communications between the Executive Office of the President and the Justice Department regarding the Epstein matter). The political context of this subpoena, however, makes this anything but an ordinary matter, and it is possible that Bondi will decide to produce responsive documents without asserting some (or any) of the arguably available privileges. This, of course, is her right; nothing obligates the executive branch to assert privilege in response to a valid congressional subpoena.

There is, however, one exception. Under Federal Rule of Criminal Procedure 6(e), it is a criminal offense to disclose “a matter occurring before the grand jury” unless a recognized exception applies. Thus, to the extent that the House subpoena covers grand jury transcripts, for example, DOJ cannot lawfully provide them unless a court agrees they are covered by an exception to grand jury secrecy.

Even before the House subpoena issued, in fact, DOJ had applied to federal courts in New York and Florida requesting that the Epstein grand jury transcripts be unsealed. Unfortunately, there is no specific statutory exception that would allow unsealing in this case. The only way that a court could allow public disclosure of the transcripts would be to rely on its inherent authority and, several federal circuits (including the Eleventh Circuit) have held that there is no inherent authority to disclose grand jury material. Because it was bound to follow this Eleventh Circuit caselaw, the federal court in Florida denied DOJ’s application, noting that “the Court’s hands are tied—a point the Government concedes.”

What the Florida court was too polite to mention is that DOJ itself advocated for the Eleventh Circuit precedent in question (which was decided in 2020 during the first Trump administration) and similar restrictive decisions in other circuits. DOJ also fought vigorously the attempt by the House Judiciary Committee in 2019 to obtain grand jury materials related to the Mueller investigation. DOJ lost that case at the district court and D.C. Circuit on the ground that the committee was conducting an impeachment investigation which therefore fell within 6(e)’s exception for disclosures preliminary to or in connection with a “judicial proceeding,”  but DOJ was still in the process of seeking Supreme Court review when the first Trump administration ended, thereby mooting the case. In any event, DOJ’s official position (presumably) remains that courts have no authority to release grand jury materials in response to congressional subpoenas, even in the impeachment context, and certainly not in the case of oversight subpoenas such as that issued today. (In fairness, DOJ’s hostility toward exceptions to grand jury secrecy predates the Trump administration.)

In short, there is no way for DOJ to lawfully provide the House Oversight Committee with grand jury material responsive to its subpoena without permission from a federal court, and, unless it is recanting its prior views, its position is that no federal court has the authority to grant such permission. Even if it were inclined to change this position, the weight of federal court opinion (adopted at DOJ’s urging) says that there is no such authority in the case of oversight (as opposed to impeachment) subpoenas.

This might not be such a big deal if we were only talking about grand jury transcripts. However, DOJ has also taken a much broader view of what constitutes a “matter occurring before the grand jury.” It interprets this phrase to include not only grand jury transcripts, subpoenas and other documents that directly show what happened in the grand jury, but materials which merely relate to the grand jury investigation, such as documents collected in the course of the investigation, witness statements taken outside the grand jury room, and many other documents. Many of the most important documents responsive to the House Oversight subpoena therefore may be covered by DOJ’s expansive view of grand jury material. If it produces these documents without court permission, it will be committing a crime, at least based on its own view of the law. And its own view of the law says that the courts are powerless to grant such permission even if they are asked to do so.

That leaves Attorney General Bondi in something of a difficult position.