Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent

Authors

Stephanie Dangel, University of Pittsburgh School of LawFollow

Document Type

Article

Publication Date

1990

Abstract

With increasing calls for investigations of officials working in and on behalf of the Trump administration, calls for the appointment of independent prosecutors or counsel will no doubt soon follow. This Note, published in 1990, concludes that both the Supreme Court of the United States and the Framers of the Constitution did not intend prosecution to be a “core” executive function subject to Presidential control. This intent thus supports the constitutionality of appointing independent counsel with investigative and prosecutorial powers.

In Morrison v. Olson, the Supreme Court upheld the constitutionality of independent counsel under the Ethics in Government Act of 1978. That Act provided for the appointment of an independent counsel to investigate and, if appropriate, prosecute certain high ranking government officials for violations of federal criminal laws.

The Act further provided that if the Attorney General decided that an independent counsel was warranted, the Special Division of the D.C. Circuit would appoint the independent counsel and set their jurisdiction based on information provided by the Attorney General. Such independent counsel had the power to exercise all the investigative and prosecutorial powers of the Department of Justice and the Attorney General, subject only to good cause removal by the Attorney General.
Despite the Act's insulation of the independent counsel from Presidential control, the Morrison majority upheld the constitutionality of the Act. In brief, the majority held that the Act did not "impermissibly interfere with the President's authority under Article II in violation of the constitutional principle of separation of powers."

The lone dissenter, Justice Antonin Scalia, strongly disagreed with the Court’s holding. In the words of Justice Scalia,“ [g]overnmental investigation and prosecution of crimes is a quintessentially executive function ”that “has always and everywhere... been conducted never by the legislature, never by the courts, and always by the executive.” In reaching this conclusion, Justice Scalia relied on the intent of the Framers of the Constitution.

This Note documents in detail that, contrary to Justice Scalia’s assertion, the Framers of the Constitution did not intend prosecution to be a solely executive function. At the time of Constitutional Convention, criminal prosecution was a primarily private system assisted by minor, local officials. If the Framers left with a different model in mind, they neither recorded the discussions that led to this change, nor immediately institutionalized the new model in their federal system.

In conclusion, this Note concludes that both the Supreme Court’s Morrison opinion and the Framers’ intent confirm that the appointment of independent counsel insulated from Presidential control does not violate the constitutional separation of powers. Thus, the appointment and protection of independent counsel to investigate and prosecute officials in Trump administration would also be consistent with the Constitution of the United States.

Recommended Citation

Stephanie Dangel, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 Yale L.J. 1069 (1990), (with a current abstract)