Morrison v. Olson

The situation which occasioned Morrison v. Olson, Chief Justice Rehnquist would later write in his majority opinion for the Supreme Court, "provide[s] an example of how the Act works in practice." In 1982, two House subcommittees issued subpoenas requiring the Environmental Protection Agency (EPA) to hand over documents relating to the enforcement of the so-called "Superfund Law," the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. President Ronald Reagan, acting on the advice of U.S. Attorney General William French Smith, directed the EPA Administrator to invoke executive privilege--that is, to inform Congress that the EPA would not surrender the documents because to do so would impair its functioning as an office of the executive branch charged to deal with specific and sensitive matters. The administrator did so, and the House voted to hold him in contempt. The administrator then filed a lawsuit against the House; but when the Reagan administration agreed to give the House subcommittees limited access to the documents in March of 1983, the matter seemed to be concluded.

In 1984, however, the House Judiciary Committee began an investigation into the Justice Department's handling of the situation. Among those called to testify was Theodore Olson, who had been assistant attorney general for the Office of Legal Counsel (OLC) at the time of the executive privilege order. During the Judiciary Committee investigation, the Justice Department withheld certain documents from Congress. When the committee published its report in 1985, it suggested that Olson had given false testimony on 10 March 1983, and further charged that Deputy Attorney General Edward Schmults and Carol E. Dinkins, assistant attorney general for the Land and Natural Resources Division, had obstructed the committee's investigation by withholding documents. At that time, the Judiciary Committee chairman requested that the attorney general appoint an independent counsel to investigate Olson, Schmults, and Dinkins.

After going through the procedure outlined in the act, the Special Division appointed James McKay as independent counsel to investigate Olson only, but McKay later resigned, and in his place the Special Division appointed Alexia Morrison on 29 May 1986. The following January, Morrison asked the attorney general (Edwin Meese III had been appointed in 1985) for authority to investigate Schmults and Dinkins as well, and was denied. She then asked the Special Division for such permission, but after consideration of the matter, the Special Division ruled that the attorney general's refusal was final. Nonetheless, Morrison was given authority to investigate whether Olson had conspired with others--including Schmults and Dinkins--to obstruct the investigation.

When, under Morrison's direction, a grand jury in May and June of 1987 issued subpoenas to Olson, Schmults, and Dinkins, the three moved to have the subpoenas quashed on the grounds that the act's creation of the independent counsel office was unconstitutional. A district court denied the motion on 20 July 1987, and upheld the constitutionality of the act. It also ordered that the appellees be held in contempt for refusing to comply with the subpoenas, but stayed the contempt orders pending expedited appeal.

On appeal, the lower court's ruling was reversed, as the court of appeals' majority held that the independent counsel was not an "inferior officer." The latter was a reference to the Appointments Clause in Article I, Section 2, Clause 2 of the Constitution, which states that "the Congress may by law vest the appointments of such inferior Officers, as they think proper . . . in the Heads of Departments." In this case, of course, the department head would be the attorney general; but the court held that the independent counsel was a "principal officer," who under the Appointments Clause must be appointed by the president and confirmed by the Senate--as is the case, for instance, with a Cabinet official. Also, the court found in the act violations of a number of other constitutional principles, including limitations placed on the judiciary in Article III, and the principle of separation of powers.

When the case came before the U.S. Supreme Court, Morrison argued it herself, with Michael Davidson for the Senate arguing as amicus curiae. Other entities filed briefs of amici curiae urging reversal, including the American Bar Association, Common Cause (represented by Archibald Cox, special prosecutor in Watergate), the Center for Constitutional Rights, Public Citizen, and Burton D. Linne et al. Noted attorney Laurence H. Tribe also filed a brief on behalf of Lawrence E. Walsh, independent counsel in the investigation of the Iran-Contra scandal involving illegal arms sales by the Reagan administration. Briefs, presumably urging reversal, were also filed by the Speaker and Leadership Group of the House of Representatives and the American Federation of Labor and Congress of Industrial Organizations (AFL/CIO). For Whitney North Seymour, Jr., U.S. Solicitor General Fried argued the case as amicus curiae in support of the appellees, and briefs of amici curiae urging affirmance were filed by Michael Deaver of the Reagan administration and Edward H. Levi, attorney general under the Ford administration.