SLOW DOWN: In Investigating Trump and Russia, Do Not Forget Scalia's Most Devastating Dissent.

James Comey is finally out as FBI Director. Comey never should have gone public last summer about the DOJ probe of Hillary Clinton's email fiasco and, after having done so, grievously erred in fabricating an utterly fictitious mens rea requirement for the underlying criminal statute at issue. Comey has repeatedly beclowned himself in the court of public opinion since then, and the firing of the perhaps most universally disliked man in Washington is, if anything, months overdue.

I have very little to add to Daily Wire Editor-in-Chief Ben Shapiro's two-part analysis of why Trump finally fired Comey at this particular juncture. I think Ben's proffered third theory — that "Trump fired Comey because he was angry Comey was allowing the Russia investigation to drag along, and used Comey’s ridiculous Congressional testimony as a pretext for firing him" — is, indeed, the most logical and the most well-supported by the available circumstantial evidence. Robert Costa, in a detailed report at The Washington Post, entirely corroborates this line of thought:

Trump had long questioned Comey’s loyalty and judgment, and was infuriated by what he viewed as the director’s lack of action in recent weeks on leaks from within the federal government. By last weekend, he had made up his mind: Comey had to go...

Trump was angry that Comey would not support his baseless claim that President Barack Obama had his campaign offices wiretapped. Trump was frustrated when Comey revealed in Senate testimony the breadth of the counterintelligence investigation into Russia’s effort to sway the 2016 U.S. presidential election. And he fumed that Comey was giving too much attention to the Russia probe and not enough to investigating leaks to journalists.

Notwithstanding Comey's invariably being hated by everyone across all conceivable political stripes, the breathtakingly incompetent Trump White House managed to botch its poorly timed dismissal more epically than the Atlanta Falcons botched Super Bowl LI. The Trump/Russia conspiracy enthusiasts have responded to this sad(!) display of sophomoric bush league-ism by, much like the octogenarians at the senior facility taking Viagra for the first time, rising up to dramatically reassert their prowess. While this is not necessarily a development for the worse, there are reasons to be immensely skeptical of the particular direction in which the post-Comey investigation appears to be headed.

To be clear, Russian involvement in the 2016 U.S. election absolutely deserves a full-scale investigation. It is true that any "fire" resulting from all the cough-inducing Trump/Russia "smoke" would probably already have been uncovered, but there is still an unholy amount of "smoke" and there is simply no reason at all for Republicans to obstruct such a thorough investigation absent brute partisanship. And if the GOP were to acquiesce in such an intensive probe that nonetheless ultimately exculpated Trump in squeaky clean fashion, the party might do itself a modicum of polling favor as it tries to recover from a self-flagellating budget capitulation and a healthcare disappointment by swimming upstream against a painful political current.

The problem thus comes in the specific form this post-Comey investigation into Russia may take. Long-time political watchdogs may recall that the U.S. Office of the Independent Counsel, originally enacted as part of the post-Watergate scandal Ethics in Government Act of 1978, expired without congressional reauthorization in June 1999. The Independent Counsel position that the Act created was unique insofar as the Counsel operated outside the hierarchical aegis of the U.S. Department of Justice — and thus, by extension, of the President of the United States. The Independent Counsel could not be removed by the President, and could only be removed by the Attorney General for "good cause" or by a special panel of judges of the U.S. Court of Appeals for the District of Columbia Circuit. The Independent Counsel has not existed since its aforementioned official expiration in 1999. 

That is, perhaps, until now. Noted Vietnam War liar and baby-killer extraordinaire Sen. Richard Blumenthal (D-CT) seems intent on reviving an effectively analogous position to the Independent Counsel prosecutor position that expired eighteen years ago:

[Blumenthal] said he had been working on writing a bill that would look similar to the old lapsed statute for such outside prosecutors, but the effort will now accelerate...

The measure would resemble a prior law that allowed Congress to recommend independent prosecutors. That law lapsed in 1999 amid partisan discord over Ken Starr’s investigation into the actions of President Bill Clinton.

“It would not be identical to it, but the conceptual framework would be very much like the statute that existed that expired,” Blumenthal said.

To be sure, Blumenthal is hardly the only one seeming to call for the revival of a special prosecutor who most resembles the "independent" prosecutor of scandals past. No less a Republican than Joe Scarborough himself even tweeted out support for such a measure:

There is only one real problem with the Independent Counsel of the old law, and with the broader notion of a truly "independent" special prosecutor, more generally: it is wildly unconstitutional. And it was shown to be unconstitutional, furthermore, by a magisterial lone dissent which the late Justice Antonin Scalia of the U.S. Supreme Court considered to be the best opinion he ever wrote: that in Morrison v. Olson (1988). 

The basic problem with the Independent Counsel, as Scalia explained, was that the defining "independent" aspect of the Counsel — its being non-removable by the President and only removable by the Attorney General "for cause" or by a special panel of judges on the D.C. Circuit Court of Appeals — was necessarily at irreconcilable loggerheads with the U.S. Constitution's exclusive vesting of "the executive power" in the President of the United States. Since the enforcement of law and the prosecutorial function is the very essence of what "the executive power" entails, it follows that the Independent Counsel deprives the President of his plenary constitutional prerogative to "take care that the Laws be faithfully executed." The Independent Counsel, by being outside the direct President/Attorney General law enforcement hierarchy and not being removable by the President despite wielding profound law enforcement power, created a de facto "fourth branch" of government and violated the basic tripartite separation of powers constitutional framework. Much like the ability to preclude unwanted foreign nationals from entering the United States is the very quintessence of our national sovereignty, the ability to fully control law enforcement and remove all subordinate officers who hold such prosecutorial power is the very quintessence of "the executive power" of which Article II of the Constitution speaks.

Here was Scalia (internal citations modified and/or deleted):

The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just government. In No. 47 of The Federalist, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." Federalist No. 47 (J. Madison). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours...

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that “a gradual concentration of the several powers in the same department,” Federalist No. 51 (J. Madison), can effectively be resisted. 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...

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices.  A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." Coy v. Iowa. While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty...

The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom.

The proper constitutional checks against a potentially compromised President, rather than the creation of an unconstitutional office whose very existence necessarily strips the President of control over a core law enforcement function and thus vitiates the solemnity of the Constitution's carefully prescribed Article II Vesting Clause ("[t]he executive Power shall be vested in a President of the United States of America"), is instead much subtler and multi-faceted. Congress can always use its power of the purse to threaten the funding of the presidential agenda and thus bluntly attempt to goad the President into compliance with Congress's desired oversight. Congress can also utilize the impeachment tool—that tool's under-utilization throughout American history being one of the most lamentable (non-)developments in our history. And finally, there is always the political check of the ballot box. 

And so it should be here, with Trump. The Constitution has survived far worse (cough, Woodrow Wilson and FDRcough) than whatever results—no matter how seemingly far-fetched—a full-scale Trump/Russia investigation might ultimately yield. The Constitution does not need to be further perverted to more peculiarly fit Democrats' dyspeptic state of zealous bloodlust. And make no mistake about it: despite being the lone dissenter in Morrison, the overwhelming consensus in the legal profession and academy today is that Scalia's dissent has withstood the test of time and proven to be correct. A bipartisan majority of Congress clearly agreed in 1999, when it became frustrated with Independent Counsel Ken Starr's investigation of President Clinton and responded by letting the Independent Counsel position expire of its own accord. And in the recent 2017 D.C. Circuit Court of Appeals case of PHH Corp. v. CFPB, perhaps the closest thing to a direct successor to Morrison than anything the federal judiciary has seen in years, Judge Kavanaugh's outstanding majority opinion relied much more heavily on Scalia's famous dissent than it did on the comparatively milquetoast majority opinion.

The ability to fully control law enforcement and remove all subordinate officers who hold such prosecutorial power is the very quintessence of "the executive power" of which Article II of the Constitution speaks.

 

By all means, Republicans, do not let brute partisan calculations preclude a congressionally-supported full investigation into Russian meddling in the 2016 U.S. election. But any talk of a truly "independent" prosecutor — one who wields legitimate law enforcement power but is not directly removable by the President — is constitutionally repugnant and needs to be unequivocally quashed. Justice Scalia, after all, would have urged nothing less.

Follow Josh Hammer on Twitter.

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