Scalia’s Wolf Looms in Decision Upholding Mueller Probe

Feb. 27, 2019, 9:56 AM

The D.C. Circuit cited curious support for its rejection of a constitutional challenge to the appointment of Robert Mueller to investigate possible links between the Trump campaign and Russia—a 1988 dissent by Justice Antonin Scalia arguing that a similar appointment was unconstitutional.

The conservative icon’s lone Morrison dissent—though still not the law of the land—has become legendary. It’s “one of the greatest dissents ever written and every year it gets better,” Obama-nominee Justice Elena Kagan said more than 30 years after it was handed down.

The memorable dissent argued that the appointment of an independent counsel ran afoul of the Constitution because it impermissibly encroached on the president’s power to enforce the laws.

Such separation of powers concerns are usually more subtle—coming to the court in sheep’s clothing, Scalia said.

“But this wolf comes as a wolf,” he said.

Still, the citation to Scalia’s dissent shouldn’t be read as an indication that Mueller’s appointment is similarly unconstitutional. The unanimous D.C. Circuit found Mueller’s appointment passed muster and referenced the majority opinion in Morrison as well.

Notably, the appointment at issue in Morrison was made under a now-defunct statute, the Ethics in Government Act. Mueller’s appointment was made under Justice Department regulations, a distinction that constitutional law professor Stephen I. Vladeck of University of Texas at Austin said addresses many of Scalia’s concerns.

“Special Counsel Mueller is subject to greater executive oversight because the limitations on the Attorney General’s oversight and removal powers are in regulations that the Attorney General can revise or repeal,” the court said.

Constitutional law professor at South Texas College of Law Houston Josh Blackman said the nod to Scalia may be a way to insulate the opinion from contrary views should the decision reach the Supreme Court. He pointed to Justice Neil Gorsuch, President Donald Trump’s first Supreme Court nominee, as someone who might be sympathetic to Scalia’s way of thinking.

Justice Brett Kavanaugh has also publicly criticized Morrison. “I would put the final nail in,” he said of the decision in a 2016 speech when asked about a case that deserves to be overturned. The comments led to questions about how Kavanaugh would ultimately view the Mueller investigation during his Supreme Court confirmation process.

But regardless of whether the case winds up at the Supreme Court, the citation to this lone dissent is a testament to the support Scalia’s decision has garnered over the years.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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