Morrison v. Olson and Scooter Libby

The ongoing furor over Judge Walton, Scooter Libby and the six page brief filed by prominent constitutional scholars draws many a comment. Recent Law Blog posed the comment on the legality of the appointment of the special prosecutor in the case by Prof Doug Kmiec, of Pepperdine Law School who recently lectured at the William S. Richardson School of Law, University of Hawaii. His impressive background in the administrative realm, both teaching as a White House special counsel, is more than enough to give his 900-word email pause. He reminds us of Morrison v. Olson and writes that “the Constitution cautions us against giving prosecutors an appointment of unsupervised independence especially when it is aimed at investigating a single incident of highly political origin and is largely concentrated upon one person.” With his deep abiding passion for teaching, he goes a step further in retort to Judge Walton’s disparaging remark about the six page brief that “the submission was not something I would expect from a first-year law student" with “I for one would be pleased by any first-year law student who would understand why it is important for these matters of due process and constitutional legal principle to be raised even in behalf of (maybe especially in behalf of) an unpopular criminal defendant.” Something every class should read perhaps.