Morrison v. Olson

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Morrison v. Olson
Seal of the United States Supreme Court.svg
Argued April 26, 1988
Decided June 29, 1988
Full case name Alexia Morrison, Independent Counsel v. Theodore Olson, et al.
Citations 487 U.S. 654 (more)
108 S. Ct. 2597; 101 L. Ed. 2d 569; 1988 U.S. LEXIS 3034; 56 U.S.L.W. 4835
Prior history Appeal from the United States Court of Appeals for the District of Columbia Circuit
The Independent Counsel Act is constitutional, as it does not increase the power of the judiciary or legislative branches at the expense of the executive.
Court membership
Case opinions
Majority Rehnquist, joined by Brennan, White, Marshall, Blackmun, Stevens, O'Connor
Dissent Scalia
Kennedy took no part in the consideration or decision of the case.
Laws applied
U.S. Const. art. II

Morrison v. Olson, 487 U.S. 654 (1988), is a case where the Supreme Court of the United States decided, by a 7–1 margin, that the Independent Counsel Act was constitutional.


The situation from which the case arose involved subpoenas from two subcommittees of the United States House of Representatives that directed the Environmental Protection Agency (EPA) to produce documents relating to the efforts of the EPA and the Land and Natural Resources Division of the Justice Department to enforce the Superfund law. Theodore Olson was the Assistant Attorney General for the Office of Legal Counsel. President Ronald Reagan ordered the Administrator of the EPA to withhold the documents on the grounds that they contained "enforcement sensitive information." This led to an investigation by the House Judiciary Committee that later produced a report suggesting Olson had given false and misleading testimony before a House subcommittee during the investigation.

The Chairman of the Judiciary Committee forwarded a copy of the report to the Attorney General with a request that he seek the appointment of an independent counsel to investigate the allegations against Olson and two others. Alexia Morrison was named independent counsel and given jurisdiction to investigate whether Olson had violated federal law. Olson moved to quash the resultant subpoenas and sued Morrison (in her professional capacity).

Olson argued that the Office of the Independent Counsel took executive powers away from the office of the President of the United States and created a hybrid "fourth branch" of government that was ultimately answerable to no one. He argued that the broad powers of an independent counsel could be easily abused or corrupted by partisanship. Morrison in turn argued that her position was necessary in order to prevent abuses by the executive branch, which historically operated in a closed environment.


The Court upheld the independent counsel provision of the Ethics in Government Act because it did not violate the separation of powers principle by increasing the power of one branch at the expense of another. Instead, even though the President could not directly fire an Independent Counsel, the person holding that office was still an officer of the Executive branch, and not under the control of either the U.S. Congress or the courts.

Justice Scalia's dissent

Justice Scalia, the lone dissenter, said that the law should be struck down because (1) criminal prosecution is an exercise of "purely executive power" as guaranteed in the Constitution and (2) the law deprived the President of "exclusive control" of that power. In his opinion, Scalia also predicted how the law might be abused in practice, writing, "I fear the Court has permanently encumbered the Republic with an institution that will do it great harm."

Conservatives began to share his concern when in 1992, four days before the US Presidential election, Lawrence Walsh announced the re-indictment of former defense secretary Caspar Weinberger on charges related to the Iran-Contra affair. Critics also sensed partisan politics when Walsh's office leaked a note suggesting President Bush had lied about his connections to the affair.

Liberals also began to share Scalia's concern when independent counsel Kenneth Starr spent $40 million and more than four years investigating President Clinton's land deals and extramarital affairs. Many believed the investigation was plagued by partisanship.


Congress let the Independent Counsel Act expire in 1999.

The New York Times wrote, "[i]n an introduction he gave shortly after the case was decided, (then) Judge Alito said the decision hit the separation of powers doctrine 'about as hard as heavy-weight champ Mike Tyson usually hits his opponents.'"[1]

In February 2006, lawyers for I. Lewis "Scooter" Libby, Vice President Dick Cheney's former top aide, argued that Special Counsel Patrick J. Fitzgerald lacked the legal authority to bring charges against him.[2] In April 2006, a court rejected Libby's argument, citing the precedent in Morrison v. Olson.[3]

During the Supreme Court's oral arguments in Hollingsworth v. Perry, Olson briefly referred jokingly to the Independent Counsel law. [4]

In a 2013 interview with New York Magazine, Justice Scalia described Morrison v. Olson as the most wrenching case in which he has participated:

"Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching."[5]

See also


  1. Hulse, Carl; Kirkpatrick, David D. (2005-12-02). "After Memo, Democrats Are Taking Firmer Stance Against Alito Nomination". New York Times.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  2. Leonnig, Carol D. (2006-02-24). "Special Counsel in Plame Case Invalid, Libby Contends". Washington Post.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

Further reading

  • Glitzenstein, Eric R.; Morrison, Alan B. (1988). "Supreme Court's Decision in Morrison v. Olson: A Common Sense Application of the Constitution to a Practical Problem". American University Law Review. 38: 359–382. ISSN 0003-1453.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  • Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press. pp. 191–210. ISBN 978-0-8070-0036-6.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

External links

  • Text of Morrison v. Olson, 487 U.S. 654 (1988) is available from:  Findlaw  Justia