If there is a President-elect Hillary Clinton, she may find herself missing Justice Scalia.
When Scalia died in February, Clinton issued a statement: "I did not hold Justice Scalia's views, but he was a dedicated public servant who brought energy and passion to the bench."
Clinton's sweeping disavowal of Scalia's "views" might have been politically convenient for a candidate running in a Democratic primary against Senator Sanders of Vermont. But the way things seem to be headed, it won't be long before President-elect Clinton starts browsing Scalia's dissent in the 1988 case Morrison v. Olson, and asking herself where on earth can be found a lawyer with the principled, prophetic foresight and communication skill of a Scalia.
Oh, there's no lack of astute legal talent on Clinton's political side, from Bernard Nussbaum, who as White House counsel advised against the appointment of an independent counsel back in the first Clinton administration, to Nicole Seligman and Karen Dunn. All brilliant lawyers and wonderful people. But what Scalia had was the credibility of having written this, in the Morrison v. Olson dissent:
Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, 'crooks.' And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution.
Substitute "her" for "his" and "him," and it's a remarkably prescient passage. Scalia had the credibility of having written that back in 1988, when Donald Trump's description of "Crooked Hillary" was not a household term, when no one had heard of Monica Lewinsky or Paula Jones or a private email server or Wikileaks or the Clinton Foundation, and when the administration being hounded by a special prosecutor was that of Ronald Reagan.
Already, influential conservatives, anticipating a Clinton presidency, are calling for the restoration of the independent counsel statute that Congress wisely allowed to expire in response to the excesses of Kenneth Starr.
But this is a concern that runs deeper than the question of an independent counsel or special prosecutor. It's a bipartisan issue. It's not just Clinton who faces federal investigations. The "Bridge-gate" proceedings in New Jersey grind on, aimed at Donald Trump's transition chairman, Governor Christie, a Republican. In New York, a federal prosecutor, Preet Bharara, has pursued criminal prosecutions against both the Democratic speaker of the assembly, Sheldon Silver, and the Republican Senate Majority leader, Dean Skelos. Bharara has more recently targeted Joseph Percoco, a top aide to the Democratic governor, Andrew Cuomo. In Virginia, a Republican governor, Robert McDonnell, was sentenced to prison; the U.S. Supreme Court unanimously vacated his conviction.
Doubtless some politicians are dishonest. But it's far healthier for democracy if the voters get to sort that out in elections. Impeachment is also a constitutional option. The sad fact of it is that the politicians have been ensnared in the same overgrown criminal justice system that managed to entangle Martha Stewart, Conrad Black, and what often seems like half the black male population between the ages of 15 and 35. If some Democrat wants to run against Governor Christie for closing bridge lanes out of political spite, bring on the contest. And if a Republican wants to run against Hillary Clinton on the email or Foundation issues—well, we have just seen one try.
Our own sense is that while voters value honesty, they also view it as just one among many competing political virtues. Expectations about honesty in politics are so low that the lack of it doesn't carry quite the scandalous punch that it might have once used to. Voters discount that a lot of the prosecutorial puffery is just the criminalization of policy differences.
If there's poetic justice here, it's that Hillary Clinton, who went to Washington early in her career as a young lawyer investigating Watergate (that's how she knows William Weld) has found herself on the receiving end of the sort of investigations that hounded Nixon from office. Nixon's firing of the Watergate prosecutor was one of the developments that brought about the passage of the independent counsel statute whose constitutionality was doubted by Scalia in his Morrison v. Olson dissent.
Scalia's view was that, under the Constitution, the prosecutors work for and must be accountable to the president. Perhaps Hillary Clinton didn't fully appreciate the importance of that point back at Scalia's death in February. But in the coming months she may come all too well to understand its wisdom.