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In Which a Scalia Corrects Me
From my inbox:
I wanted to comment on something you said during this week’s Ricochet podcast. (A great one, by the way – I’m just glad no punches were thrown.) During the discussion of Mueller’s role as special counsel, you mentioned that my father (the late justice) had disapproved of special counsels. I assume you’re referring to his dissent in Morrison v. Olson, but that was actually about the independent counsel. The difference, as I understand it, is that the special counsel is appointed by the DOJ, whereas the independent counsel was named by a three-judge court. My father’s point was that this made the IC an obvious threat to the separation of powers.
Thanks for humoring me by reading this far, and I’m sorry if I mis-understood your point.
Best,
Chris
My reply:
Chris did understand my point–and I did indeed confuse independent counsels with special counsels. Once they’re appointed, independent counsels, as the late Justice Scalia argued, are essentially accountable to no one. Special counsels, such as Robert Mueller, remain accountable to the Attorney General (or, as in the case of Mueller, to the Deputy Attorney General, since the Attorney General has recused himself in this matter) and hence, ultimately, to the president.
I’d still argue that the politics of the situation tend to make special counsels dangerous, giving them far too much discretion to widen the scope of their investigations in nearly any way they choose. But they’re certainly a lot less pernicious than independent counsels.
All of which is a way of saying: Thanks, Chris.
Published in General
This is GOLD
An important distinction!
I did not understand the difference, so thanks for the clarification. That makes a lot of sense.
The difference between Peter and myself? I only get told I’m full of crap by the completely unknown and relatively anonymous.
Thanks for this clarification. I knew there was a distinction to be made, but I couldn’t state the details. I hope it’s OK to switch topics a bit. On the podcast the issue of “draining the swamp” was ridiculed, albeit gently. Your interview with General Mattis on Uncommon Knowledge came to mind. He said something like, a disordered or corrupt process can undo the work of any leader. . This was an “aha, that’s it” moment for me, because it was a succinct expression of something I saw working in the small society of a school district. In my mind, these disordered processes constitute the swamp. Embedded bureaucrats who refuse to recognize new authority; one entity usurping the role that is the proper responsibility of another; proper confidentiality ignored etc. and the one that drives me insane: hissy fits over the popular vote. To me it’s a halftime score. It never determines a win yet we have to dither with it for months. Disordered processes create their own corrupt culture. It can undo a family or the federal government.
That’s so cute.
There is no separation of powers anymore. The three branches are not checks and balances; they are a cabal.