In the high-stakes poker game between Bill Clinton and Kenneth Starr, Clinton has an ace in the hole that he has yet to play or perhaps even notice--an obscure 1997 Supreme Court case whose logic renders the independent counsel statute unconstitutional.
Counsel Starr was appointed by a special court in 1994, and since then he has enjoyed a healthy measure of formal independence from ordinary Justice Department oversight. But under the Constitution, courts can only be given power to appoint "inferior" officers. A truly inferior officer must have a superior officer to whom he reports, who in turn can broadly supervise and control his performance. Thus, courts can appoint "inferior" officers such as law clerks and magistrates--who report to and are truly "inferior to" the appointing court. But courts cannot constitutionally appoint prosecutors whom they do not and cannot supervise and direct. Surely they cannot appoint "independent" counsels who are not inferior to anyone and who claim awesome powers, such as the right to boss around and bring down a president.
This reading of the Constitution's "inferior officer" clause enjoys a great deal of support from constitutional text, history, structure, and early case law. But a decade ago, in Morrison vs. Olson, the Supreme Court ignored this reading and upheld a 1978 independent counsel statute. Justice Antonin Scalia dissented, insisting that the court was playing fast and loose with the word "inferior."
Morrison was still good law in 1994 when President Clinton signed a new independent counsel act. But in 1997, Edmond vs. United States all but overruled Morrison. Writing for eight justices (with the ninth agreeing and going even further), Justice Scalia declared that "Morrison did not purport to set forth a definitive test for whether an officer is 'inferior.' Generally speaking, whether one is an 'inferior' officer depends on whether he has a superior." This is precisely the test Scalia used in his Morrison dissent, a test that both the 1978 and 1994 laws flunk. It cannot be said that Starr is inferior to the special court, for that would make judges superprosecutors monitoring ongoing investigations and prosecutions, in blatant violation of the separation of powers. Nor is Starr inferior to Janet Reno, who did not pick him and does not direct him; the whole point of the statute is to make him formally independent of her. One cannot be both formally independent and formally inferior.
If we take Edmond seriously, independent counsels could still be appointed in two ways, neither of which would involve judges. First, the president could nominate and the Senate could confirm a truly independent--and noninferior--counsel, as occurred during the Teapot Dome scandal. This process, involving senators from both parties in confirmation hearings, would literally give the counsel a personal vote of confidence and a strong political mandate to do his job fearlessly. Second, the attorney general, after informal consultation with opposition leaders, could pick someone from outside the Justice Department--and indeed from the opposite party--to do a given investigation, as occurred during Watergate. Here too the likely political process would be bipartisan, generating an investigator trusted by both the White House and its critics. Such an outsider would not need Senate confirmation, because he would be technically "inferior" to the attorney general. If he became a runaway train, he could be derailed by the attorney general--but if she tried to step in without good reason, she would pay a huge political price, as in the Saturday Night Massacre. Formally and legally, such an appointee would be "inferior," but practically and politically, he would be suitably independent. Both of these two independent counsel models seem superior to a system that politicizes judges by drawing them into highly charged investigations and that enables critics to complain of vast partisan conspiracies. Both models also provide more democratic visibility and accountability--the first upfront, via formal Senate confirmation, and the second at the back end, via the formal right of oversight retained by the executive branch. Neither approach can guarantee the appointment of a counsel if the president and attorney general balk, but the same is true under the current statute; in all three cases, we count on political pressure to generate the appointment of an outside investigator.
Even at this late date can Clinton play the Edmond card? If Counsel Starr simply declares victory by handing the ball (and all his boxes of evidence) to Congress, Clinton would have a tough time arguing that Congress should disregard relevant evidence just because it came from a constitutionally awkward source. But if Starr were to continue to pursue Clinton criminally--and perhaps seek to subpoena him again--then the president might resist and invoke Edmond, on the grounds that recent events have shown beyond all doubt that the independent counsel cannot with a straight face be deemed an "inferior" officer. Lower courts would probably consider themselves still bound by Morrison, but the Supreme Court would be obliged to hear the case and decide whether Morrison can still stand, given the clear meaning of Edmond. At the end of the day, would the court honor Edmond's plain logic and actually overrule Morrison? Only three of the original Morrison majority still sit on the court, so the problem is not so much personal stubbornness as institutional stubbornness. The court hates to admit its mistakes. Edmond did not formally overrule Morrison, but just left it dangling. Even in the landmark Brown case, the court did not overrule Plessy or admit it was wrongly decided; the court simply announced that Plessy did not apply to education. But one of this year's biggest lessons is that it is better to admit one's mistakes sooner rather than later, with more rather than less forthrightness.