The Special Counsel, Morrison v. Olson, and the Dangerous Implications of the Unitary Executive Theory

Victoria Nourse Georgetown University Law Professor

June 21, 2018

Critics of Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election, including President Trump, have argued that Congress may not limit the President's power to remove the Special Counsel. Ignoring judicial precedent, these critics rely on a dissent that Justice Scalia penned in the 1988 Supreme Court case Morrison v. Olson, where a seven-Justice majority led by former Chief Justice Rehnquist affirmed Congress’ power to prevent the President from firing an independent counsel without cause.   

In a new ACS Issue Brief, Georgetown University Law Center Professor Victoria Nourse argues that Morrison v. Olson remains good law and explains that the Supreme Court has never embraced the radical theory of presidential power known as the “unitary executive” that Justice Scalia’s dissent championed. As Nourse explains, “[t]he unitary executive theory is dangerous . . . Once taken from the law journals and legal societies and handed to political agents, [it] appears to grant presidents license to dismiss the law, all based on a lonely dissent."

Read the full Issue Brief here: The Special Counsel, Morrison v. Olson, and the Dangerous Implications of the Unitary Executive Theory