Morrison V. Olson - Justice Scalia's Dissent

Justice Scalia's Dissent

Justice Scalia, the lone dissenter, said that the law had to be struck down because (1) criminal prosecution is an exercise of "purely executive power" as guaranteed in the Constitution and (2) the law deprived the president of "exclusive control" of that power. Scalia, in his opinion, also predicted how the law might be abused in practice, writing, "I fear the Court has permanently encumbered the Republic with an institution that will do it great harm."

Conservatives began to share his concern when in 1992, four days before the election, Lawrence Walsh announced the re-indictment of former defense secretary Caspar Weinberger on charges related to the Iran-Contra affair. Critics also sensed partisan politics when Walsh's office leaked a note suggesting President Bush had lied about his connections to the affair. Liberals also began to share Scalia's concern when independent counsel Kenneth Starr spent $40 million and more than four years investigating President Clinton's land deals and extramarital affairs. Many believed the investigation was plagued by partisanship.