The Law: The President and the Independent Counsel: Reflections on Prosecutors, Presidential Prerogatives, and Political Power

Abstract

The Clinton scandal led to new interest in the lone dissent of Justice Antonin Scalia in the Morrison v. Olson decision upholding the independent counsel statute. His claims that the arrangement was a grave threat to presidential power seemed prophetic in the midst of the scandal. But the outcome of the scandal points to the opposite conclusion. The independent counsel's powers are no match for the president's political powers to influence the media coverage of events, mobilize public opinion on his behalf, and marshal support within Congress. The independent counsel lacked an institutional base of power and was constrained from mobilizing a counterresponse in the political realm by the rules of prosecution and the need to appear independent.