In the 1988 case of Morrison v. Olson, the Supreme Court upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978. But one justice dissented: Antonin Scalia.
Many now believe Justice Scalia was prescient. In his lone dissent, he asked:
"Does [the Act] not invite what Justice Jackson described as 'picking the man and then searching the law books, or putting investigators to work, to pin some offense on him?'... Frequently an issue of this sort will come before the Court clad, so to speak, in sheeps clothing ... [b]ut this wolf comes as a wolf."
Under the act, the attorney general is required to apply to a special three-judge panel for appointment of an independent counsel unless "there are no reasonable grounds to believe that further investigation or prosecution is warranted." That is not a high threshold. And once appointed, an independent counsel can, upon request, have his or her jurisdiction expanded infinitely.
Justice Scalia argued that the act violates the most basic and vital principle of separation of powers. Our Constitution divides the government into three distinct branches: legislative, executive, and judicial. The courts have consistently interpreted executive power to include all investigative and prosecutorial powers.
The Independent Counsel Act, however, vests a court appointee with the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General." In so doing, Justice Scalia said, the act creates a system that has the judicial branch intrude severely upon exclusive executive-branch power.
Justice Scalia argues that the act deprives the executive branch of its constitutional authority over investigatory and prosecutory functions. He notes that, "[U]nder our system of government, the primary check against prosecutorial abuse is a political one." Since federal judges are immune from the political process because they are appointed for life, their actions are not subject to the correction the Founding Fathers deliberately placed on runaway prosecutions - the ballot box.
Scalia used the following example: