The Separation of Powers:
How Justice Scalia's Lone Dissent Rings True in Today's State of Political ‘Lawfare’ in the Wake of President Donald J. Trump’s Current and Future Indictments.
INTRODUCTION:
When asked my thoughts on American politics today, I tell people that I am tired. In doing so recently, I have come to find out that I am not alone in that feeling. In fact, if you ask around, one will find that exhaustion is universal in how many Americans currently feel when thinking about or discussing politics. In a recent poll from the Pew Research Center, 65% of Americans say they always or often feel exhausted when thinking about politics. The question is, what is the root cause of this exhausting feeling?
Now, I’d like to preface this piece with a reminder that American Politics by its nature is exhausting. It was very much the intent of our framers to have gridlock and a separation of powers that ensured the branches of government remained independent of one another. That unique separation is accomplished through a bicameral legislature that creates law, an executive branch which is given a veto power and enforces the laws of the legislature, and an independent judiciary that determines the constitutionality of those laws. The sausage-making of policy and gridlock in Congress, veto power of the president, and independence of the judiciary, are all intentional to uphold a system of checks and balances that provide an equilibrium designed to avoid the tyrannical concentration of power.
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." – James Madison Federalist No. 47
What we have come to find out in this country’s almost 250-year existence is that this structure has become the ultimate protector of liberty, as our founders predicted. Since the ratification of our Constitution in 1788, America has not only survived the test of time, including our own civil war, but it has served as an example for liberty around the world. Although the slow, and oftentimes tedious process of legislating may be frustrating to those looking to make positive change in their communities, it is the checks and balances of America's constitutional system that have allowed for the creation of the most free and prosperous nation in human history.
Unlike some Americans who have become frustrated with our system of government itself, my weariness doesn’t come from the intentional gridlock and legislative divide. My exhaustion and quite frankly frustration, stems from the efforts and complacency to erode the system itself. More specifically, a departure from the Constitution. In this piece, I will review the separation of powers, more specifically in relation to the power of the executive branch and how one 1988 Supreme Court ruling set the precedent of where we are today: the political normalization of impeachments, never ending special counsel investigations, and all out political lawfare to discredit opponents and undermine those who support them.
In 2011, Supreme Court Justices Stephen Breyer and Antonin Scalia spoke in front of the Senate Judiciary Committee on the topic of American exceptionalism. In his introductory remarks, Justice Scalia noted the first question that he asks when speaking to law, college, even high school students interested in the study of law and the Constitution. He explained that he would inquire how many in the room had read the Federalist Papers. In getting to his point, he explained that less than 5% of the audience would ever raise their hands. “And that is very sad,” he said during his testimony, “especially if you're interested in the Constitution. Here's a document that says what the framers of it thought they were doing. It's such a profound exposition of political science that it is studied in political science courses in Europe. And yet, we have raised a generation of Americans who are not familiar with it.”
It is clear we are not properly teaching the next generation about our founding, the Constitution, the separation of powers and the intent behind this exceptional system of government. You do not need to look further than just this year, where Stanford Law School required a “free speech training” after students and faculty members embarrassingly harassed a federal judge out of a lecture because they disagreed with him. This is not just lacking in the classroom; sadly, this is occurring within the halls of Congress and being normalized to a generation of electorate who lack the necessary civic lessons taught to those before them. Time and time again, we witness continued disregard for the Constitution, allowing politically motivated ends to justify unconstitutional means with no regard for our system of government. One specific example of this is in the case Morrison v. Olson, where the Supreme court ruled in favor of independent counsel’s operating outside of the direct control of the president of the United States, in an attempt to instill oversight, even though it directly contradicts the Constitution and threatens the separation of power. The precedent of this decision over time, has led to the politicization and abuse of special counsels, most recently in an attempt to undermine the vote of the American people and stop Donald Trump.
MORRISON V OLSON:
One of Scalia’s most famous pieces of legal analysis is his dissent in the case Morrison v. Olson, decided by the U.S. Supreme Court in 1988, which examined the constitutionality of the Independent Counsel Act. While the majority upheld the Act, Justice Scalia's lone dissent presented a powerful argument that emphasized the significance of the separation of powers and the potential dangers of unchecked prosecutorial authority, while offering thoughtful predictions for what would become of the precedent set by this ruling. Scalia’s dissenting opinion serves as an illustrative example of our country moving away from the text of the Constitution, which results in a misunderstanding of our system of government and the undermining of it. Scalia’s ability to deeply understand human nature and the intentions of our framers allowed him to offer foresight into the dangers of eroding the Constitution and accurately portrays the politically charged constitutional crisis we find ourselves in.
In the late 1970s, concerns regarding government ethics and accountability after Watergate led to the enactment of the Ethics in Government Act of 1978. This legislation aimed to address potential conflicts of interest and misconduct by government officials. As part of the act, provisions were included to establish a mechanism for appointing an independent counsel to investigate and prosecute certain government officials accused of wrongdoing.
The case emerged from the appointment of an independent counsel to investigate allegations against Theodore Olson, who was an assistant attorney general in the Office of Legal Counsel. The independent counsel, Alexia Morrison, was appointed to investigate whether Olson had provided false testimony to Congress about a controversial program conducted by the Environmental Protection Agency (EPA).
Olson, invoking executive privilege, refused to comply with the independent counsel's request for certain documents, arguing that the law violated the constitutional separation of powers by impinging on the president's exclusive control over the executive branch. The case reached the Supreme Court, which examined the constitutionality of the Independent Counsel Act.
In a 7-1 decision, the Supreme Court upheld the constitutionality of the law. Chief Justice William Rehnquist authored the majority opinion, joined by Justices Brennan, White, Marshall, Blackmun, Stevens, and O'Connor. Justice Scalia was the sole dissenter. The majority held that the appointment of an independent counsel did not violate the separation of powers. The Court reasoned that the law did not unduly interfere with the president's authority, as the independent counsel operated under the supervision and control of the Attorney General as an inferior officer of the executive branch. The majority believed that the law did not interfere with the president’s constitutional duties and gave sufficient control over the executive branch.
Justice Scalia's legal approach in this case was centered on the encroachment upon executive power by the Independent Counsel Act. The independent counsel was not appointed by the president and approved by the Senate, but instead was approved by “the Special Division of the United States Court of Appeals, [their] appointment is constitutional only if (1) [they are] an "inferior" officer… and (2) Congress may vest [their] appointment in a court of law." Scalia emphasized that the law was unconstitutional by outlining multiple reasons that an independent counsel, beyond its title, was not an inferior officer to the president.
Scalia argued that allowing someone that was not inferior to the president to operate within the executive branch would shift the equilibrium of power, introducing a balancing test for future courts to decide, opening the threat of political prosecution, all while undermining the president and executive branch itself.
Scalia noted that the independent counsel, based on the Independent Counsel Act , was removable for “good cause” by the attorney general, whereas “most principal officers in the Executive Branch may be removed by the president at will.” As many often hear, those in the executive branch serve at the pleasure of the president. Although the majority agreed that the scope of the independent counsel “performs only certain, limited duties,” they gravely underestimated the amount of the power the Independent Counsel Act gave independent prosecutors. "Admittedly… the Act specifically grants [independent counsel] the 'full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice…the Court points out that the Act directs the independent counsel to abide by general Justice Department policy, except when not "possible." This within itself gave the appointed prosecutor the ability to go beyond the standard policy of federal prosecutors, with no oversight or discretion of the chief executive.
By noting the ‘free and clear’ nature of their jurisdiction and tenure, Scalia pointed out why the independent counsel was not an inferior officer to the president. “I find nothing unusually limited about the independent counsel's tenure. To the contrary, unlike most high-ranking Executive Branch officials, [independent counsels] continues to serve until [he or] she (or the Special Division) decides that [his or] her work is substantially completed.” Through the nature of this appointment, the court’s decision ultimately gave an independent prosecutor free reign to continue their investigation beyond the initial intent of their appointment, with no checks on where their investigation lead.
Scalia simply pointed out that “once appointed, the independent counsel exercises executive power free from the president's control… and makes [them] removable only for "good cause," a limitation specifically intended to ensure that [they] be independent of, not subordinate to, the President and the Attorney General…Because appellant [special counsel] is not subordinate to another officer, [he or] she is not an "inferior" officer and [his or] her appointment other than by the President with the advice and consent of the Senate is unconstitutional. Rather than erect a theory of who is an inferior officer on the foundation of such an irrelevancy, I think it preferable to look to the text of the Constitution and the division of power that it establishes. These demonstrate, I think, that the independent counsel is not an inferior officer because [he or] she is not subordinate to any officer in the Executive Branch (indeed, not even to the President).”
OUR CONSTITUTION:
"Photo Credit: Anthony Garand and Unsplash"When interpreting the Constitution and noting the framer’s intent, Scalia believed strongly in the equal separation of power. “We should say here that the President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States.” The framers debated the wording of the Constitution and the structure of our government to avoid any misunderstanding or gray matter in respect to the powers of each branch. Article II is very clear in its wording, just as is the role and responsibilities of the executive branch. This structure, carefully crafted, was formed in a way to handle disputes, giving each branch a check on one another but also protecting itself and their respective responsibilities from political disagreements — all while maintaining an equilibrium of power.
"Full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General... Once appointed, the independent counsel exercises executive power free from the President's control… the Act directs the independent counsel to abide by general Justice Department policy, except when not “possible” ... In sum, the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion. To take this away is to remove the core of the prosecutorial function, and not merely "some" Presidential control.” Justice Scalia
When issues arise and disagreements come up, as they often do between the executive and legislative branches, no one branch can be allowed to undermine the other or be given the presumption of innocence. “But where the issue pertains to separation of powers, and the political branches are (as here) in disagreement, neither can be presumed correct… Congress, no more than the President, is entitled to the benefit of the doubt.” Political conflict and disagreement is inevitable. This is exactly why our framers created an independent judicial branch of Government, to interpret the law. Although the Court ruled as they did in Morrison v. Olson, Scalia, legal scholars today believe that the Majority overlooked the equilibrium of power.
The court in the majority opinion pointed out that through the attorney general and the president had some control over the special counsel, but as Scalia noted, “Governmental investigation and prosecution of crimes is a quintessentially executive function,” as outlined in the Constitution.
By taking the power of investigatory and prosecutorial discretion away from the president, the appointment of a special counsel, at times based off political motivation, gives the other branch of government, who at times is at odds with the president, the benefit of the doubt and a leg up in the forever power struggle that our framers worked hard to limit. The power, granted to the special counsel, with little limitation on direction, scope, and oversight, gives that person substantial power outside of the president’s control. One of the roles of the executive branch is prosecutorial discretion within the branch that they serve. The courts were not intended to decide how much power over the executive branch the president may or may not have. This precedent inevitably leads to the court always having to rule on the president’s actions in what Scalia refers to as an ad hoc manner, when the constitution makes it clear.
“In my view, moreover, even as an ad hoc, standardless judgment the Court's conclusion must be wrong. Before this statute was passed, the President, in taking action disagreeable to the Congress, or an executive officer giving advice to the President or testifying before Congress concerning one of those many matters on which the two branches are from time to time at odds, could be assured that his acts and motives would be adjudged-insofar as the decision whether to conduct a criminal investigation and to prosecute is concerned in the Executive Branch, that is, in a forum attuned to the interests and the policies of the Presidency.” – Justice Scalia
It was intended for the president to at times act and make decisions that Congress, and other political institutions disagreed with. Sticking with the constitutional interpretation of the president’s responsibilities and the role of the executive branch, we must remember how easy it is for political actors to accuse political opponents of breaking the law when they may just disagree. Prosecution is not warranted for decisions and counsel given in the “forum attuned to the interests and the policies of the President.”
The people elect a president in whom they trust to lead all functions of the executive branch. To weaken the president through political lawfare, by casting an unwarranted legal attack over political disputes, undermines the vote and will of the people. By electing a fellow citizen as president, the people grant them the responsibilities laid out in our Constitution. The decision to appoint an independent counsel “reduces the amount of control or supervision” that the president has over his or her constitutional duty to faithfully execute the laws, replacing the “clear constitutional prescription that the executive power belongs to the President” with a "balancing test." What the court did here is abandon the constitutional text, leaving open for future interpretation the amount of power in the executive branch is sufficient for the president to do their job. This is dangerous. “There are now no lines. If the removal of a prosecutor, the virtual embodiment of the power to ‘take care that the laws be faithfully executed,’ can be restricted, what officer's removal cannot? This is an open invitation for Congress to experiment.” And experiment they have. “As far as I can discern from the Court's opinion, it is now open season upon the President's removal power for all executive officers... The Court essentially says to the President: ‘Trust us. We will make sure that you are able to accomplish your constitutional role.’ I think the Constitution gives the President-and the people-more protection than that.”
Ignoring the protections given to us by the Constitution is one of many examples of the erosion of our system of Government. Political lawfare is the new form of politics, as opposed to working together on common sense issues that the voters care about. The results of this decision over time have hurt, not helped, our progress. These political disputes, enhanced by the courts ruling, have turned our elected officials focus on the inevitable power struggle as opposed solving real issues and representing the interests of their constituents. Perhaps this is one of the reasons Congress’ approval rating is so low and most Americans feel as if those “representing” them in Washington DC are out of touch with the issues that most Americans care about.
I happen to agree with Justice Scalia, when he wrote, “It is not for us [The Judicial Branch] to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are. Once we depart from the text of the Constitution, just where short of that do we stop?” As for the power in question, whether investigation and prosecution of the president or anyone serving at the pleasure of the President is not "so central to the functioning of the Executive Branch," instead determined on a case-by-case basis, the Constitution simply disagrees.
Our Constitution has built in, evenly balanced checks on executive power and presidential overreach. This ruling, and the ones that follow, where the courts now decide how much executive power is ‘too much’ or ‘enough’ will simply be adding and subtracting symbolic weights of power to and from certain branches of government. Our founding fathers made it very clear, in the Constitution and the Federalist Papers, that shifting the equilibrium of power, would result in a fast path towards concentrated authority and inevitable tyranny.
The unbalancing of the system is an elimination of liberty and a fast path to tyranny. Scalia knew that an independent prosecutor would shift the equilibrium of power, undermining the president's authority and political influence. He even went as far as to argue that the case itself should not have been taken on by the court to begin with, “since the statute vests some purely executive power in a person who is not the President of the United States it is void.”
As an originalist, Scalia thought this ruling was an ad hoc judgment, as the court failed to explain why suddenly, all-purely executive power no longer remained in complete control of the president. “The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that "[t]he executive Power shall be vested in a President of the United States.”
What the court decided that day was that the power taken away from the president through the independent prosecution process wasn’t “that much power.” They set a precedent where what makes up “enough power” is decided by the justices serving on the court, as opposed to the clear, simple, and universally understood original meaning of Article II of the Constitution. Morrison v. Olson led to an imbalance of power that circumvents the will of the people by stripping the president of complete control over executive power, bypassing the people who voted for the executive that wields the power granted to them in the Constitution.
“By its shortsighted action today, I fear the Court has permanently encumbered the Republic with an institution that will do it great harm… Today’s decision on the issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law.” – Justice Scalia
IN PLACE CHECKS ON POWER:
Revisiting his address to the Senate Judiciary Committee in 2011, Scalia pointed to America’s distinct government structure by referencing other governmental structures around the world. “In all of the parliamentary countries the Chief Executive is the creature of the legislature. There's never any disagreement between them and the prime minister, as there is sometimes between you [Congress] and the President. When there's a disagreement, they just kick them out. They have a no confidence vote, a new election, and they get a prime minister who agrees with the legislature.” Although some may prefer this less separate structure of government, our framers were intent on having a separately elected executive, because gridlock and true separation of powers is the ultimate protector of liberty, especially for those in the minority.
“A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. 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.” – Justice Scalia
When it comes to the potential distrust of the chief executive or their subordinates, and the possibility of their office and power being abused, the founding fathers assured that there would be checks and balances to respond with impeachment. As expected, if a bad apple comes around, the founders had to assure that this system of government and the Constitution would survive. In doing so, the equilibrium of power must remain and not be altered to protect the republic and assure that the people remain in power. The preservation of liberty was the top priority when our founding fathers carefully crafted the structure of our government. Nothing else is worth it if the fire of liberty goes out in America.
Humans are flawed by nature, and our framers took that into account when structuring how we determine who holds, and doesn’t hold, the office of the executive. The checks and balances of our Constitution cover this inevitable possibility twofold. First, by retaliation of one branch to another with Congress’ right to impeach, the president's discretion in prosecution, and the court's ability to dismiss cases. Second, by the electorate. We have elections for a reason and we the people choose to unseat those who are guilty of abuse and can decide with our vote. This is extremely important in understanding our system of government as well as our vital role in it. We the people decide who the president is. Once in office, their power is restricted by the Constitution. “As Hamilton put it, "[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility." Federalist No. 70, p. 424. It is our responsibility to assure that those we elect uphold their end of the bargain, and if they don’t, or they abuse their power, we simply vote them out. If there is a crime or an offense that warrants the president or a member of the executive branch to be removed from office, we the people also elect those who have the power to impeach and remove the president. “There is, of course, no provision in the Constitution stating who may remove executive officers, except the provisions for removal by impeachment.” Through a due dependence and responsibility, the people are responsible to assure the survival of our republic, not a special counsel.
As a reminder, the enactment of the Ethics in Government Act was four years after the resignation of Richard Nixon. Even though Nixon, as the chief executive had the authority to fire Archibald Cox, the appointed special counsel, and did during the so called “Saturday Night Massacre,” he was still removed from office by resignation due to the impending impeachment being orchestrated by Congress. Even with complete control of the executive branch, Congress and the people saw the potentially illegal activity happening in the White House, and the president stepped down while the executive branch’s power remained intact. This is a historical example that highlights not only the founder’s foresight, but also a reassurance that the balance of power they created in writing the Constitution worked.
“The President is directly dependent on the people, and since there is only one President, he is responsible… That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive… The President is directly dependent on the people, and, since there is only one President, he is responsible. The people know whom to blame, whereas "one of the weightiest objections to a plurality in the executive . . . is that it tends to conceal faults and destroy responsibility.” – Justice Scalia
The function of the executive branch is the sole responsibility of the President of the United States. How beautiful and rare is a system which allows you and I to choose who is given that responsibility and whether they deserve to remain in power or to be replaced. The sole executive is essential to the assurance of that accountability.
NATURE OF UNCHECKED POWER & LACK OF ACCOUNTABILITY:
It is important to understand as Scalia did, the precedent that this ruling would set. “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.” In order to do this, keeping the Constitution in mind, it is important to understand human nature, and yes, the intention of our founders, as provided in the federalist papers. Scalia's dissent offers valuable lessons for navigating the challenges of political lawfare in the modern era. It highlights the importance of preserving the separation of powers, particularly in protecting executive authority from encroachments by independent prosecutors or special counsels. Maintaining a balance between accountability and the preservation of constitutional structure is essential to uphold the democratic will of the people.
The unchecked prosecutorial authority given to the special counsel enables the potential to go after a far higher ranked individual than Theodore Olson as Assistant Attorney General in the Office of Legal Counsel, something we have seen since this decision. The precedent that this ruling set gives future special counsel’s the ability to go beyond the standard policy of federal prosecutors, with no oversight or limitations given to anyone in the executive branch. “How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile… And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment.” This precedent does not assure the president complete control of the executive branch, which includes prosecutorial discretion, especially if at some point the person under investigation could be the president himself.
Taking his thoughts one step further, Scalia touched on the human nature of a sole individual given unprecedented and unelected power. Understanding the intent of our framers to prioritize the equilibrium of power and acknowledging that prosecutorial power is purely an executive function, one sees that the ruling and the need for a special counsel is out of place. "The problem is less spectacular but much more worrisome. It is that the institutional environment of the Independent Counsel-specifically, [his or] her isolation from the Executive Branch and the internal checks and balances it supplies -is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests." In the eyes of preserving our republic, and understanding the intent behind the Constitution, this position of special counsel is abnormal at best.
“But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” James Madison Federalist No. 51
One cannot ignore the potential of individual ambition, especially in the world of politics, when granting this much authority to someone who is unelected. As James Madison reminds us in Federalist No. 51 that a functioning government is dependent on the people and human nature has taught us “the necessity of auxiliary precautions” when it comes to government and granting the power to govern. The founders embedded checks on these human flaws within the structure of government itself as the Constitution was written, not for an independent counsel to be incorporated. It shifts the balance.
"Photo Credit: Tingey Injury Law Firm & Unsplash"Given Madison’s perspective, I would say a reaction of extreme caution is not just necessary but expected for a decision this significant, yet today, this practice has become habitual. There are too many unchecked possibilities that would lead to an abandonment of our constitutional intention which would change the dynamic of American politics as it was intended.
As touched on earlier, the beauty of our republic is that each election cycle, we the people decide who is reelected or not. Elected officials are held to the highest level of accountability by the citizenry, because they depend on us. When an issue or scandal arises, it is the elected official who must brace the political storm that follows. Even if he or she was not involved but say a member of their staff was in the wrong, they risk the possibility of losing the faith of their constituents and their job. In the case of the executive branch, the buck stops with the president. The appointment of the special counsel takes the accountability away from the President, it gives power to someone who is not dependent on the people. “A process is set in motion that is not in the full control of persons ‘dependent on the people,’ and whose flaws cannot be blamed on the President. An independent counsel is selected, and the scope of his or her authority prescribed, by a panel of judges.” The Constitution was written so clearly to avoid this distortion. There are no consequential previsions for a special counsel be held accountable for their actions. The unconstitutional nature of this position gives unchecked power to an individual with limited oversight and direction, removing the input of the people. The founders understood this, just as they understood there may be a bad apple elected into office, there may be a bad apple appointed as a special counsel, who is in it for the wrong reason. The difference is the Constitution prescribes checks and balances for elected individuals, whereas there is not check on a special counsel once they are appointed.
“How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it. The notion that every violation of law should be prosecuted, including-indeed, especially-every violation by those in high places, is an attractive one, and it would be risky to argue in an election campaign that that is not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value, and it was with the hope that we would be able to acknowledge and apply such realities that the Constitution spared us, by life tenure, the necessity of election campaigns.”
Accountability is necessary to preserve a government by the people and for the people. It also reassures trust in the system itself, encouraging continued participation. The appointment of an independent counsel, decreases the value of our vote, reducing the relevance and influence of the peoples input, eroding the system itself and weakening the liberty of the individual. By appointing someone who is not inferior to the president and potentially insubordinate by the nature of their position, the equilibrium of power is distorted as well as the application of the law. “It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uniform application of the law. Perhaps that is not always achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide.” A united executive branch, that is fully dependent on the people, under complete control and direction of the chief executive, unable to be undermined by a “mini-Executive,” is how our framers envisioned the second branch of government, with an emphasis on an equal separation of power and the prioritization of individual liberty.
SCALIA’S PREDICTIONS TODAY:
"Photo Credit: Adam Michael Szuscik and unsplash"Scalia's dissent resonates in today's political climate, marked by the weaponization of legal processes and investigations to undermine the presidency in a constant power struggle. Special counsels have been subject to intense politicization. These investigations, rather than serving as neutral fact-finding missions, have often become tools to delegitimize and hinder the president's agenda, ultimately undermining the will of the people who elected him. Under the Trump administration, special counsels, such as Robert Mueller and the investigation into Russian interference in the 2016 election, exemplified the politicization of these legal processes. Critics argued that the investigations strayed beyond their original scope and became politically motivated attempts to discredit the president and impede his ability to govern effectively — given the fact that policies he campaigned on directly contradicted many political norms in Washington. Labeled early on as a disruptor, President Trump challenged the status quo of Washington DC and promised to take power away from Washington and give it back to the people.
In his dissent, Scalia emphasized not only the power struggle behind the case, but also how the intent of the court, through their decision, overlooked the threat of unbalancing power. “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, p. 321 (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.”
The “Ethics in Government Act” would understandably garner the interests of most citizens looking for accountability and basic ethical requirements in our government. The desire to hold an individual accountable, or at least investigate them for a potential wrongdoing is well intended. The problem is that the intention, with its attractive title, comes as a sheep. Yet the result of this case, which alters the Constitutional equilibrium of power, is a wolf.
In the last couple of years, Robert Mueller, John Durham, Jack Smith, have all served as special counsels on three separate matters, from 2017 to today. Already, Donald Trump has promised a special counsel to investigate the Biden Family if he were to be President again in 2024. This process, of constant special counsels, the normalization of impeachment for political damage, let alone all the wasted spending involved, is exhausting people, and removing them even more from political and civic engagement. As a citizenry, we have become numb to the Constitution and have neglected necessary discourse. We have abandoned our civic duty, which our founders worked tirelessly to instill in us, for the preservation of America. By not embracing our “due dependence, and a due responsibility" we find ourselves today where the appointment of a special counsel is as frequent as needed, and the responsibility now falls on an unelected individual to conclude their findings and report back to us, the people, replacing the responsible, informed voter with a government appointed prosecutor.
By normalizing political lawfare, constantly enacting drastic measures such as impeachment and special counsel appointments, for short term political outcomes, we have allowed the degradation of our system by exhausting it. Impeachment should be rare, removal of a president should be uncommon and yet as time goes on, we have become accustomed to the attempt of undermining voters. As a result, our elected officials focus less on policy and more on power. Sadly, when the time comes to enact the checks on abused power, the people, exhausted by the political lawfare, will be far less fervent on the issue, chalking it up as another cheap political tactic for the opposing party to take control.
“It is the very object of this legislation to eliminate that assurance of a sympathetic forum. Unless it can honestly be said that there are "no reasonable grounds to believe" that further investigation is warranted, further investigation must ensue; and the conduct of the investigation, and determination of whether to prosecute, will be given to a person neither selected by nor subject to the control of the President-who will in turn assemble a staff by finding out, presumably, who is willing to put aside whatever else they are doing, for an indeterminate period of time, in order to investigate and prosecute the President or a particular named individual in his administration. The prospect is frightening even outside the context of a bitter, interbranch political dispute.” Unfortunately for us, most of the present-day lawsuits, impeachments, special counsels and now indictments, are from bitter, interbranch political disputes. And in a place as professionally incestual as Washington DC, where there is countless career crossover, it is likely a special counsel is connected to someone in the case.
Despite all the efforts to make government more efficient or more ethical, the decision in the Case Morrison v Olson, along with other challenges to the Constitution in sheep’s clothing, have pulled us further from the Constitution and have diluted the separation of power. Scalia dove into the role of the prosecutor, and how much power and discretion is given to a sole individual tasked with investigating a case. This context is important today given the recent indictments brought forth on President Trump by State and Federal Prosecutors. “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. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive. Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation.” By pointing this out, Scalia once again reminds us of the true goal of the US Constitution; that the separation of powers, and the unitary executive are the best ways to protect individual liberty and fair treatment under the law. By ignoring this, we relinquish the most cherished piece of what makes America unique and put a vast amount of reliance in the hands of prosecutors whose “operating in an area where so little is law and so much is discretion.”
Today, President Trump has four different indictments filed against him. Two of which are under the direction of special counsel Jack Smith, the other two are from state attorney general’s offices who are all members of the opposing party. With a substantial lead in many polls, it is almost certain that Donald Trump will once again be his Republican Party’s nominee for President. Despite his popularity within the GOP, there has been all out legal assault on President Trump since his decision to run again for president. Despite numerous attempts to hurt his public support, starting back with the Russian Collusion narrative, Trump still polls favorably with his party and better now nationally than he did at this point before the 2016 election. Despite this, he has now been indicted four separate times, facing life in prison for charges that reek of political motivation and a disregard for the standard discretion a prosecutor might have, especially with a former president and leading candidate for president. I bring all of this up for two reasons. First, I believe this piece lays out the facts as to why it is unconstitutional to go after the President of the United States in this manner when the only means for removing him from office are impeachment, which has failed twice, and the electorate. Second, because of the dereliction of duty of these politically motivated prosecutors, trying to prevent the president from making his case with the American voter, injecting themselves in an attempt to circumvent the will of the voters. When understanding the role and responsibilities of a prosecutor, knowing that their discretion is the key to which cases they chose or not, it’s a lot easier to see the political motivation behind these indictments. Justice Scalia quotes a former FDR Attorney General, Justice Robert Jackson when he spoke to the United States Attorney about the responsibility of a prosecutor, and the discretion needed to do the job honorably.
“Justice Robert Jackson, when he was Attorney General under President Franklin Roosevelt, described it in a memorable speech to United States Attorneys, as follows: "There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. 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. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain. If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is 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. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. 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." R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940.”
Sadly, when reading this, one cannot ignore the climate we find ourselves in today. Warned by Justice Jackson and reiterated by Justice Scalia, by taking the prosecutorial power away from the unitary chief executive, as written in the constitution, we have abandoned our structure of government as it was intended and have replaced it with politically motivated lawlessness in a new never-ending power struggle that was not meant to be left for interpretation. The greatest danger of abuse of prosecuting power, picking the man and then finding the crime, is occurring as we speak, to a former president and leading candidate to be president once again. Donald Trump is accused of exactly what his political opponents have done freely throughout their time in politics, while facing a maximum penalty. Whether it be falsifying business records, questioning the results of the election or the mishandling of classified documents, there are no bigger culprits than the political enemies of Donald Trump. For Joe Biden, Hillary Clinton, Barak Obama and most career politicians who unethically make millions of dollars while in office, their power and connections most often protect them of any serious investigation let along public humiliation and threat of accountability. By questioning the 2020 election, as most on the other side of the aisle did in 2016, Trump has been labeled an enemy of Democracy. As for the mishandling classified documents, you do not need to look beyond his two challengers, Hillary Clinton and Joe Biden, who as Secretary of State and Vice President respectively had no authority to declassify or hold onto classified documents, unlike the President, who has the power to declassify anything. Keeping in mind that Hillary Clinton deleted classified emails on a private email server after she received a subpoena. And she was never prosecuted, it is clear that the powers at be do not want Trump to be president again. This disregard of the will of the people is a dangerous place to be in. As Scalia predicted, the idea of going after someone who is a particularly high profiled target, would result in many motivated individuals wanting to prosecute that individual, before a crime is identified or enough evidence is available to warrant the typical standards of prosecution. So much of these scary, hypothetical scenarios have come true before our eyes. Given his entire campaign, candidacy and presidency was to “drain the swamp,” it’s pretty clear that Donald Trump falls into the category of “being unpopular with the predominant or governing group” especially when considering he is running again for president. These politically motivated prosecutors have abandoned the honorable standard of prosecution. “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"?” For someone like President Trump, who has declared war against the ever-growing unaccountable federal government, as a populist president and candidate who many voters agree with, the very machine he dares to challenge has an ample number of foot soldiers willing to defend the cause and eliminate the threat to their relevance and grip on power.
Despite the previous attempts to stop President Trump from remaining in power or running again, with two failed impeachment attempts, his popularity amongst Republican voters has not gone down. Despite all the efforts to stop him, many of which are originated on politically motivated lies like the Russian Collusion narrative, President Trump has not given up on his mission when entering the arena for president. That being said — now with the most recent indictments out of Fulton County Georgia — aids, staffers, as well as the President’s legal team, are under indictment. “Perhaps the boldness of the President himself will not be affected-though I am not even sure of that. (How much easier it is for Congress, instead of accepting the political damage attendant to the commencement of impeachment proceedings against the President on trivial grounds -or, for that matter, how easy it is for one of the President's political foes outside of Congress-simply to trigger a debilitating criminal investigation of the Chief Executive under this law.) But as for the President's high-level assistants, who typically have no political base of support, it is as utterly unrealistic to think that they will not be intimidated by this prospect, and that their advice to him and their advocacy of his interests before a hostile Congress will not be affected, as it would be to think that the Members of Congress and their staffs would be unaffected by replacing the Speech or Debate Clause with a similar provision. It deeply wounds the President, by substantially reducing the President's ability to protect himself and his staff. That is the whole object of the law, of course, and I cannot imagine why the Court believes it does not succeed.” What Scalia points to here is very interesting. Now that President Trump’s teams have become subject to the politicized lawfare, the prosecutor has set a new standard that not only negatively effects those who worked with President Trump, but also those who advise future president’s. Once again, if constitutional interpretation of the law was punishable by prosecution, we would not have a functioning country. By prosecuting the President’s legal counsel, there is no return from the consequences of that. The president cannot be surrounded by people who question their role or responsibility to someone outside of the president. That is setting an entire administration up for failure. It undermines the president, his staff, the entire executive branch, and the individuals who voted for him.
The problem with the statute, beyond the power it takes from the executive branch, is how easily it can be enacted. As a result, the special counsel has become a political tool used to undermine the president’s public support and weaken the presidency itself when that president is viewed as “the enemy.” “Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, "crooks." And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution. The present statute provides ample means for that sort of attack, assuring that massive and lengthy investigations will occur, not merely when the Justice Department in the application of its usual standards believes they are called for, but whenever it cannot be said that there are "no reasonable grounds to believe" they are called for. The statute's highly visible procedures assure, moreover, that unlike most investigations these will be widely known and prominently displayed.” This prediction from Scalia outlines the entire playbook of the first two years of President Trump’s term, where all we heard of was Russian Collusion, corruption, and “classified proof” of ample evidence. After the massive, thirty-two million dollar, two year, highly publicized investigation, the damage was done, and the opposing party was back in control of the house of representatives.
The criminalization of President Trump, justified through special counsels and massive investigations, has isolated a large percentage of American’s who voted for him. Instead of having to justify or even defend someone being charged as a criminal, Democrat’s determined it was more likely Trump supporters would decide to disengage from civil discourse. As active citizens, it is our duty to not allow this to happen. We must have the difficult conversations about issues, candidates, campaigns and policy. By pushing our civic responsibility off onto a special counsel, we have created a stronger divide amongst our fellow citizens.
The current indictments are political, unprecedented, and arguably unconstitutional. The supporters of the president are now isolated in conversation and enthusiasm. This isolation is not just from those who actively do not support the former President, but also the uninformed voter, who with a blind trust in the system, and a belief in ‘ethics in government,’ has a blind reliance on the results of the special counsel — unaware of the possibility of the lack of accountability it has to the people. This comes from an overall lack of understanding of our structure of Government, as Scalia emphasized in 2011.
Instead of allowing for the people to decide with their vote, we have politically motivated individuals, who have gained access to power through bad precedent like Morrison v Olson, acting in an unconstitutional manner to stop someone from being elected. Those who have spent their careers accumulating power in Washington have no desire to relinquish it. They have enabled and elevated politically motivated prosecutors to undermine the voice of the people. Like so many newsworthy stories that are not given the appropriate coverage, I believe this constitutional crisis is a perfect example of something most people are not even aware of.
CONCLUSION:
Scalia's lone dissent serves as a powerful reminder of the enduring principles embedded in the Constitution's separation of powers framework and the importance of defending them, even if you stand alone. His words continue to resonate today, particularly in the context of political ‘lawfare,’ where his views on the preservation of executive power hold relevance. In an era marked by the weaponization of legal processes and investigations, Scalia's arguments against unchecked prosecutorial authority and encroachments on the executive branch find renewed significance. As we navigate the complexities of modern governance, it is essential to draw from Scalia's emphasis on simplicity and the separation of powers to safeguard the presidency and preserve the will of the people who elect their chosen leader.
The erosion of executive power in today's politics is one example that has led to an increasing uncertainty and overall distaste for American Politics. Given the context of the last decade, political divide has increased, and division has become mainstream. As a result, our country is now facing an identity crisis. For too long, we have become hyper focused on what divides us, as opposed to finding common ground and celebrating what unites us. Thanks to the increased concentrated powers within corporate media, who best profits off our divide, we are constantly exposed to the extremes. The reality is that more than 80% of the county fall in between the bookends of the extreme. Most American’s want common sense. We want individual freedom, to provide for our families and the guarantee of security that government was initially formed to ensure. Most American’s want their vote to matter, and for politicians to be a better representation of the electorate. Many who feel lost or discouraged are searching for an answer to bring back morality, standards, decency and yes, common sense. Although Justice Scalia is no longer with us, I cannot imagine he would have any joy in his predictions in this lone dissent becoming reality in America. He would be concerned for the state of the Republic. In working on this piece, reading his dissent and understanding the man who foresaw the discouraging situation we are in, I would like to believe Justice Scalia would agree that there is one answer to fix the state we are in, and it is in the text of the Constitution.
Benjamin Franklin famously said, "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." Through what many argue today as an unconstitutional precedent, and by relying on an independent counsel, upholding The Ethics in Government Act, we have fallen into the trap Franklin, our founding fathers, and Scalia warned us about. By relying on the perceived safer option, deferring to unelected prosecutors to do our due diligence for us, we as voters have abandoned the necessary “ingredients which constitute safety in the republican sense… a due dependence on the people…and a due responsibility.” By abandoning our responsibilities and not embracing this country’s dependence on us as free-thinking, independent voters, we have risked losing the essential liberty to decide who sits atop the executive branch and leads our country. The requirement of our participation in the democratic process is essential for America to survive. Although the Morrison v. Olson ruling may seem small and irrelevant to some, this is one example of our complacency that has eroded the Constitutional system to present day. “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.”
This piece is not intended to harp on the past, although I believe it highlights clearly one example of where we have gone wrong, and where we have abandoned the text of the Constitution. The intent of this piece is to educate its reader on our unique constitutional structure of government and to provide a level of simplicity to an overwhelmingly complicated political climate. That the equilibrium of powers, set in the Constitution, protects us from falling into a tyrannical state and the constitution plainly states that "[t]he executive Power shall be vested in a President of the United States.” Legal precedent is powerful and over time it can compound in a direction not perceived or intended. The tone set in a ruling may present itself as a wolf in sheep’s clothing, but over time, it can reveal itself as a wolf. The political persecution of Donald Trump, the leading Republican candidate for President of the United States, is unconstitutional, tyrannical, and a direct threat to the will of the people. Let the people vote. We have the right to decide our own destiny.
The Constitution is not a self-correcting document. The contract between “We the people” and the government must be upheld by active citizens to assure that our God-given rights are protected through a democratic republic. When the constitutional convention concluded in 1787, it is said that while exiting, Benjamin Franklin was approached by the people gathered around in anticipation of the new American government. When asked what form of government the delegates had created, he responded, “A republic, if you can keep it.” In so few words, Franklin encapsulated the spirit behind this new American government; the people.
It is our duty to speak to and acknowledge the consequences of moving away from the Constitution and the threat that doing so presents. By simplifying the conversation, more people will embrace American exceptionalism. Ronald Reagan referred to America as a shining city upon a hill. Politics aside, that is a beautiful vision for your country. The optimism in that belief is something we need to restore in our culture and identity. In doing so, I predict that more people will be encouraged to preserve the American standard as opposed to being complacent in its erosion.
I prefaced this piece by sharing my exhaustion lately in American politics, and the cause of that exhaustion being the eroding of the system itself. I understand that I am not alone in that feeling. I know how overwhelming today’s political climate is, to a point where it almost feels hopeless. Yet we cannot give up. We must double down and fight the urge to mail it in. It is essential that we accept the daunting reality that our constitutional standards and political norms are eroding before our eyes. It was our founding father’s intent for us to preserve the system they created, and although it seems that we have steered away from that expectation, we still have the power to fix it. We do not become suppressed into tyranny overnight; it is a slow, slippery slope of eroding of standards and constant little steps away from the Constitution. Even though it seems respect for the constitution has been chipped away over decades, it can be rebuilt. It is never time to give up on America and it never will be. The American experiment is too extraordinary to be abandoned. Therefore, we must persist, reengage, and preserve the equilibrium of power before it is too late.
In his inauguration address, President John F. Kennedy famously pleaded with his fellow citizens to “ask not what your country can do for you, ask what you can do for your country.” It is time we ask ourselves again to look within, accept reality for what it is and fix this broken system. We must bring back common sense, reinvest in our civic education and engagement, and educate ourselves on our country’s founding by reading our founding documents with an appreciation for individual liberty. We have an obligation to demand and inspire others to prioritize family values over policy that erodes the nuclear family, freedom and liberty of the individual through limited government, and security in our communities, states and country. By simplifying and prioritizing common sense, we can inspire others to once again reengage in American politics with enthusiasm to protect what many have fought and died for to preserve. Our sacred rights are not given to us by government, we are the government. We vote to decide our own destiny, and we must protect our right to vote so we can decide who among us is worthy of the task at hand and hold them accountable. As for President Trump, let the people decide. These indictments have caused more division, undermining tens of millions of people’s votes, and have eroded the equilibrium of power that the constitution grants to the chief executive. Simplicity and dedication to the Constitution, supported by a true understanding of our framers’ intentions, will produce the strongest universal understanding of our constitutional republic while protecting the rights and liberties of the individual, that of which concentrated power inevitably threatens.
