Kavanaugh, Mueller and Efforts to Have it Both Ways on Morrison

Even if it’s a bit surprising that he said the quiet part out loud, it shouldn’t come as any great shock that Judge Brett Kavanaugh thinks the Supreme Court’s 1988 decision in Morrison v. Olson is wrongly decided—and is his best example of a prior decision that should be overruled. Morrison, which upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978, has long been a lightning rod for conservatives, who have rallied around Justice Antonin Scalia’s fiery and pellucid (if itself controversial) solo dissent. And Kavanaugh has repeatedly criticized the decision in his judicial writings, most prominently in a 2016 panel opinion striking down the single-director structure of the Consumer Financial Protection Bureau (the en banc D.C. Circuit overruled Kavanaugh in January, although the Fifth Circuit disagreed on Monday—teeing up the issue for the Supreme Court).

Instead, the real headline here is the lengths to which the White House and some of Kavanaugh’s outside defenders are going to suggest that his comments have no bearing on the investigation by Special Counsel Robert Mueller (rather than viewing the comments as a feature vis-à-vis Mueller instead of a bug). As principal deputy White House press secretary, Raj Shah, tweeted Wednesday, “The Dem attacks on Kavanaugh’s 2016 speech today are laughable, and show a total lack of understanding. There is a clear legal difference between the Independent Counsel statute and the Special Counsel regulation.” (See also this tweet by Ed Whelan.) In essence, the claim is that Kavanaugh’s hostility toward Morrison has no bearing on Mueller—and, presumably, should therefore not be a basis for opposing his confirmation—because the structure of the special counsel’s position is materially different from the constitutionally problematic structure of the now-defunct independent counsel. In footnote 3 of his opinion dissenting from the en banc D.C. Circuit’s ruling in the CFPB case, Judge Kavanaugh himself made a similar observation: “The independent counsel is, of course, distinct from the traditional special counsels who are appointed by the Attorney General for particular matters. Those special counsels ordinarily report to and are removable by the Attorney General or the Deputy Attorney General.”

As it turns out, this is the exact argument that has been offered by supporters of S. 2644, the so-called Mueller protection bill (the Special Counsel Independence and Integrity Act), which passed the Senate Judiciary Committee on a 14-7 vote in April. I’m one of them. As I wrote in my testimony to the committee in support of the legislation last September:

even if there were five votes among the current Justices to overrule Morrison, I do not believe that the special counsel bills would provide an appropriate vehicle for doing so, given how much less of an intrusion they represent into the prerogatives of the Executive Branch. After all, and unlike the independent counsel under the Ethics in Government Act, the Special Counsel is not subject to an inter-branch appointment; the scope of the Special Counsel’s investigative jurisdiction is entirely within the control of the Attorney General; and the Attorney General retains the power to oversee the Special Counsel’s investigation.

As Eric Posner and I wrote in a follow-up letter in April, whereas Justice Scalia’s Morrison dissent highlighted a number of different ways in which the independent counsel statute intruded on executive power, S. 2644 would present only one of those points of intrusion: for-cause removal. So construed, the constitutional objection to the legislation is not only far narrower than the objections Justice Scalia voiced in Morrison; it is only viable if one fully accepts the “unitary executive” theory of executive power—that all for-cause removal restrictions within the executive branch are unconstitutional.

So far, so good. The problem is that, for months, the bill’s opponents (the most visible of whom are, perhaps not coincidentally, staunch Kavanaugh supporters) have been making the exact opposite argument. Indeed, the principal opposition to the bill has been that, by codifying the existing requirement that a special counsel can be removed only for “good cause,” the bill would be unconstitutional because of Justice Scalia’s dissent in Morrison. In other words, many of the same folks who are defending Kavanaugh’s remarks on the ground that overruling Morrison wouldn’t impact Mueller’s independence have spent much of the past year using hostility toward Morrison as the sole legal basis for arguing against passage of a bill solely designed and intended to reaffirm that independence.

Suffice it to say, you can’t have it both ways. If Kavanaugh and other critics believe that Morrison was wrongly decided only because of all the problematic features of the independent counsel statute added together, then (1) I agree that the special counsel just doesn’t raise the same concerns; and (2) critics of the legislation should admit that

there is therefore no remaining constitutional argument against passage of the far-more-modest Mueller protection bill. But if the principal constitutional problem in Morrison was the “good cause” limitation on the removal of an inferior executive-branch prosecutor, then (1) the special counsel raises exactly the same concern; and (2) Kavanaugh’s remarks about Morrison do bear directly on the constitutionality of Mueller’s independence. After all, even without passage of S. 2644, the executive branch is bound to follow its own regulations (which similarly require “good cause” for Mueller’s removal) until and unless they are duly rescinded.

I don’t mean to hide the ball; overruling Morrison (especially if Humphrey’s Executor is next) could have dramatic and far-reaching consequences for the administrative state, much of whose architecture and functioning depends on the existence of quasi-independent agencies that are, unlike Cabinet departments, at least somewhat insulated from direct political control by the president. In that regard, the larger implications of Kavanaugh’s views if they become those of the Supreme Court majority will almost certainly be felt elsewhere. But if Kavanaugh supporters truly believe that his hostility toward Morrison doesn’t and shouldn’t have any bearing on the ongoing special counsel investigation into President Trump, then it seems to me that they are implicitly (but correctly) conceding that the rightness or wrongness of Morrison similarly has no bearing on whether Congress should pass S. 2644.