I'm glad we agree on the key issue of constitutional principle: The 1994 statute that made Independent Counsel Kenneth Starr possible is in fact unconstitutional. This agreement prompts three questions. First, should the Supreme Court openly reverse itself and now declare the 1994 statute unconstitutional, even though the court in the 1988 Morrison case upheld a predecessor independent counsel statute? Second, regardless of what the court should do, what would it do if asked to overrule Morrison in a proper case? Third, regardless of what the court should or would do, how should the other branches of the federal government act?
On the first question, I strongly favor the outright overruling of Morrison. Precedent should count for something in constitutional law, but not for everything. Brown was right even though it sidestepped the Plessy precedent. (Indeed, Brown would have been even more right had it openly overruled Plessy and plainly said that Plessy was wrong.) The gay-bashing 1986 case Bowers vs. Hardwick is simply wrong and should be overruled--the sooner the better. Similarly, I think that Morrison is a clearly erroneous precedent. Unlike Plessy, Morrison has not yet put down deep roots in the law, and this toxic weed should be killed as soon as possible before it spreads its poison further. Overruling is especially apt given that many of the evils that Justice Scalia predicted in his Morrison dissent and that the Morrison majority assumed away have come to pass. When Morrison was decided, the court had far less experience with the statute than it has now. Indeed, the last decade has proved that the statute fails regardless of which party controls the White House or Congress. As a recent note in the Columbia Law Review documents, the evils Scalia predicted have occurred in many different independent counsel investigations. Since the problem is not Starr but the statute itself, killing the statute should not be viewed as some partisan capitulation by the court. (Recall that some justices resisted overruling Roe in 1992, lest the court be seen as capitulating to the Republican Party platform and alleged litmus tests for judicial nominees.)
This raises my second question: Would the court in fact do the right thing? I agree with you that a court challenge to the statute is most likely to prevail if the challenger is ABC--Anyone But Clinton. The political stakes will seem lower, and it will be easier for the court to abandon Morrison without looking as if it's simply capitulating to presidential pressure. In the two biggest Supreme Court cases featuring William Jefferson Clinton's name in the caption--the Paula Jones case and the line item veto case--the justices have not been particularly kind to Clinton. Indeed, the court has bent over frontward to assure citizens it is not bending over backward to help the president. In addition, it would be awkward for Clinton to attack the very law that he signed in 1994; but other litigants would not face this embarrassment.
If someone other than Clinton attacked the statute, I am more optimistic than you that the court might do the right thing and overrule Morrison. Scalia and Thomas are two pretty sure votes for overruling, and Kennedy and Breyer are both likely allies by my count. (Kennedy joined Scalia in the 1991 Freytag case raising somewhat similar methodological and substantive issues; and he also joined the 1997 Agostini majority overruling a decade-old precedent on the grounds that later cases had eroded the logic of the earlier case. Breyer cited Scalia's Morrison dissent prominently in his opinion in the Paula Jones case, and as a pragmatist would surely take account of the last 10 years' experience highlighting the act's evils.) Who might be the fifth vote? Maybe Souter, who in Edmond embraced Scalia's Morrison dissent and who has shown himself willing to rethink precedents that contradict other precedents or prove unworkable. Maybe Rehnquist, who as the formal leader of the court was unwilling to be alone with Scalia in dissent in Morrison but who might be willing to join Scalia if other justices are on board in a new majority. Maybe O'Connor, who voted with Scalia and Breyer in the recent line item veto case.
But enough nose-counting--you are far more adept at this fine art than I, and the more lively and timely question is my third one: Until a court challenge materializes, what should the other branches do now? I think Janet Reno should simply refuse to call for any new independent counsels under the statute. The statute is unconstitutional, and she has sworn an oath to uphold the Constitution. Even before the court has invalidated the statute in a proper case--and even if the court were unlikely to do so in a future case--Reno has her own independent constitutional role and responsibility. Nothing in our constitutional scheme, or in Marbury vs. Madison, says that only courts should decide constitutional questions. Thomas Jefferson, for example, properly pardoned men who had been convicted for criticizing the government, even though courts had (incorrectly) rejected these men's First Amendment defenses. Nothing in the Constitution requires Reno to enforce the 1994 statute, and the statute itself, as construed by Morrison, gives Reno the "unreviewable discretion" not to trigger judicial appointment of independent counsels. Congress also has its own constitutional role to play. Since the statute is unconstitutional--and regardless of whether the Supreme Court would now admit its earlier mistake--Congress should not renew it when it lapses by its own terms next year. And although it is too much to realistically hope for, Congress should in fact pass a statute providing that once Clinton is out of office, his prosecution should be handled by someone other than Starr, since Starr is an unconstitutionally appointed officer. Note that such a statute would not immunize Clinton from any proper prosecution; it would simply give the proper prosecutorial discretion to some other constitutionally appropriate officer.
I assume that you will agree that, in principle, the nonjudicial branches must take seriously constitutional claims even if no court decision applies. But this agreement opens up a big can of worms: It is not limited to the "inferior" officer issue. Right now, the most important set of constitutional questions being discussed may never be decided by the Supreme Court. Those questions concern presidential impeachabilty--the meaning of "high crimes and misdemeanors," and the proper substantive standards and procedures to be followed by the House and Senate. I thought your Sept. 16 Boston Globe piece on the topic of presidential impeachability was outstanding--and I also agreed with your statements later that week on the Charlie Rose show--but I am interested in getting more of your thoughts on presidential impeachment and lesser possible sanctions. What's your current thinking on all this?