Lawyers and journalists made light of a passage referring to former Supreme Court justice Antonin Scalia in a motion filed by attorneys for onetime national security advisor Michael Flynn late Tuesday.
Some of those critiques were more trenchant than others.
The flare-up occurred after a group of sixteen former Watergate prosecutors emailed U.S. District Judge Emmet G. Sullivan and asked for permission to file amicus briefs on their own schedule. Sullivan denied the Watergate group’s timing request on Wednesday morning but left the door open for the former prosecutors and others to file briefs according to a preset judicial calendar.
Amicus briefs are Latin hangovers morphed into legalese by staid tradition. The phrase amicus curiae translates to “friends of the court” but doesn’t actually even mean that. An amicus brief is a way for a third party to file a document in a case that could theoretically help the judge come to some sort of legal conclusion.
Flynn’s attorneys, however, asked Sullivan to keep those amicus briefs out of their client’s case entirely. The Flynn motion in opposition is where Scalia’s words came into play.
Per that late Tuesday filing [emphasis added]:
[The 1988 Supreme Court case] Morrison was a dispute about the constitutionality of the Independent Counsel Act, but the heart of matter was really the dispute over executive authority and the separation of powers. The Supreme Court approved the constitutionality of the Act in an almost unanimous opinion, but Justice Antonin Scalia’s lone dissent on the separation of powers won the day in the long run. Scalia noted that the “prosecution of crimes is a quintessentially executive function,” and that “It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.”
The offending passage was ridiculed for a couple reasons.
The first and more salient criticism of the citation is exactly how this argument was essayed. The section header in the Flynn motion summarizes the defense team’s argument as: “Separation of Powers Forecloses Any Third-Party Filing in This Case and Court.”
The issue here is that Morrison okayed the creation of an “independent counsel” and, despite several pages of discussion about the separation of powers and various constitutional issues, the case itself is largely a referendum on the viability of the independent counsel provisions of the Ethics in Government Act of 1978.
In other words: the citation simply doesn’t make much sense in context because neither the Morrison opinion nor Scalia’s dissent mention or relate whatsoever to leave for friends of the court.
“Even Justice Scalia didn’t come anywhere close to suggesting that amicus briefs are unconstitutional,” noted Georgetown Law Professor Marty Lederman. “This is a silly brief.”
Honing in on the heart of the argument advanced by Flynn’s attorneys, their broader point seems to be that Congress itself decided against renewing the independent counsel law — which expired in the summer of 1999. This, the motion in opposition seems to be saying, is a vindication of Scalia’s lone dissent. It’s a superficially attractive argument but it’s false as a matter of law.
Simply because Congress chose not to extend the independent counsel provisions of the law does not mean that the law itself is unconstitutional. Congress could, for example, pass a law tomorrow that provided for the re-creation of such an office and the holding in Morrison would protect that office’s leadership and personnel from any legal challenge against its constitutional authority. (Indeed, the law in this area has morphed, not disappeared.)
“Flynn’s lawyers have made the Twitter argument about Scalia’s dissent in Morrison,” University of North Carolina Law Professor Carissa Byrne Hessick noted in a series of tweets. “It never ceases to amaze me that some people think Congress’s decision not to renew the Independent Counsel Act somehow overruled an 7-1 Supreme Court decision—-and then (without irony) loudly proclaim that bizarre theory as proof that they value the separation of powers!”
But some criticisms of the Flynn motion were more or less just as legally off-base as the Scalia-based argument itself.
National security journalist Marcy Wheeler asked: “Can some lawyer explain to me how if Scalia lost Scalia won? I mean I know the frothy right believes this but they don’t usually put it into court filings.”
Dissents absolutely can and often have eventually held the day. But not here. The body of case law on point isn’t particularly large; even so, it isn’t likely to ever include Scalia’s dissent in Morrison. (Dissents in Plessy v. Ferguson, Dred Scott v. Sandford and Korematsu v. United States have all been mostly vindicated as a matter of law — those old opinions were either directly overruled by the high court or harshly chided in subsequent opinions.)
Flynn’s full motion in opposition is available below:
[image via Chip Somodevilla/Getty Images]
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