I cannot tell you in words how excited I am for you to hear this episode. I’ve been struck by John Mulaney for years — his delivery, his unique understanding of the world, his deep empathy for the human condition. I didn’t know until last year he is also a Constitutional Law nerd. I mean, seriously, he texts me all sorts of questions about random Supreme Court cases. All the time. And they are damn good questions.
John’s questions about the Supreme Court are really what launched me on this podcast Courtside, because it occurred to me that Constitutional Law should not be the province of a bunch of lawyers — it belongs to all of us.
You are about to get treated for what I’ve had the privilege of seeing with John, an absolutely first rate mind who brings joy and playfulness to everything he encounters. He picked Morrison v. Olson (1988), one of the most important cases in constitutional law. The case concerns how to prosecute Presidential or high level Executive Branch wrongdoing. When he picked it, we didn’t know Donald Trump would be getting a target letter for the January 6 events at the same time, but the imminent criminal indictment of Donald Trump raises the importance of this episode even more.
(This was taken the day after I argued Moore v. Harper, and right before getting on a plane to Honolulu to argue a different case in the Hawaii Supreme Court 4 days later, so I was exhausted!)
Morrison v. Olson was a sweeping Supreme Court decision, decided in 1988, that found the Independent Counsel Act of 1978 constitutional. This Act was responsible for the appointment of independent prosecutors such as Ken Starr, who kickstarted the sprawling and viciously partisan investigation of Monica Lewinsky, and Lawrence Walsh, who was tasked with investigating the Iran-Contra affair during the Reagan Administration. While the Court issued a 7-1 ruling in favor of the Act (with Chief Justice Rehnquist writing for the majority), the decision is widely thought to have been a mistake. Most believe that Justice Scalia’s lone dissent was ultimately correct, and some even argue that it is the finest dissent he ever wrote.
John is pinpoint accurate in describing Morrison, and the ways in which it matters. Paid subscribers are also going to get a bunch of bonus material from John, including the ways in which he thinks Supreme Court argumentation is similar to comedy, and its differences. It’s a remarkable discussion, and I can’t wait for you to hear it.
We also spend some time describing the different models for prosecuting a President. Ultimately, the big problem is that the Constitution vests the prosecution power in the President. And if it’s the President (or his friends or family) who are the ones accused of wrongdoing, there is an inherent conflict of interest in the investigation. Yet the Constitution doesn’t provide for any alternative. This is a problem of governance that goes back millenia — to Juvenal’s query Who Guards the Guardians? (Or, as Dr. Seuss put it, bee-watchers watching the bees, and bee-watcher-watchers watching the watchers.)
Regardless, the American public is about to see one model, the Special Counsel regulations, come into force as Jack Smith prosecutes former President Donald Trump. Understanding Morrison v. Olson is essential to understanding the constitutional architecture of this prosecution, and what we can expect. Enjoy this remarkable discussion with John Mulaney.
For paid subscribers, the materials about the case follow.
This is a 4 page description of the Morrison decision
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This is an excerpted 20 page version of the decision:
This is the full Morrison v. Olson decision:
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