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Invoking Scalia in the Sovereign District

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Acting Deputy Attorney General Emil Bove instructed Danielle Sassoon, the Acting U.S. Attorney for SDNY, to dismiss the indictment against New York City Mayor Eric Adams without prejudice. I wrote about that instruction here.

Sassoon refused, and resigned. Bove accepted her resignation. There is much to say about these letters. Here, I will focus on one small part.

Sassoon stresses that she clerked for Justice Scalia:

I am also guided by the values that have defined my over ten years of public service. You and I have yet to meet, let alone discuss this case. But as you may know, I clerked for the Honorable J. Harvie Wilkinson III on the U.S. Court ofAppeals for the Fourth Circuit, and for Justice Antonin Scalia on the U.S. Supreme Court. Both men instilled in me a sense of duty to contribute to the public good and uphold the rule of law, and a commitment to reasoned and thorough analysis. I have always considered it my obligation to pursue justice impartially, without favor to the wealthy or those who occupy important public office, or harsher treatment for the less powerful.

Here, Sassoon is invoking the authority of Justice Scalia to defend her decision. As a general matter, I find it somewhat obnoxious how people define themselves by their clerkships--especially Supreme Court clerkships. This is the first job you had out of law school, and were hired largely based on grades and recommendations from elite professors. Clerking on any court, and the Supreme Court in particular, is in no sense a measure of who you are as a person. We over-fetishize clerking.

Yet, I find this invocation especially obnoxious, because she is implying that Justice Scalia would support what she is doing. How does she know? Did she hold a seance? It is all well and good to think WWND (What would Nino do?) but we really have no clue. Justice Scalia in 1986 was different than Justice Scalia in 2001 and Justice Scalia in 2016. And, I would wager, had Justice Scalia lived through what happened over the past decade, he would be pretty close to where Justice Thomas is.

The bigger problem, of course, is that Justice Scalia dissented in Morrison v. Olson. He was the OG unitary executive theorist. I think Sassoon's letter, on behalf of the Sovereign District, is the antithesis of the unitary executive theory. And Bove's response makes that point well:

In your letter to the Attorney General, you made the dubious choice to invoke Justice Scalia. As you are likely aware from your professional experience, Justice Scalia fully understood the risks of weaponization and lawfare:

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.

Morrison v. Olson, 487 U.S. 654, 713 (1988) (Scalia, J., dissenting). While the former U.S. Attorney is not a special counsel, Justice Scalia's Morrison dissent aptly summarized the Department's weaponization concerns here.

Bove is right. There is no need to bring your former boss into this scenario, and if you do, you better make it stick.

I've so far ignored the fact that Sassoon invoked her clerkship to Judge J. Harvie Wilkinson. Wilkinson gave tacit support to Sassoon's ultimate decision in the New York Times:

The first, J. Harvie Wilkinson III of the federal appeals court for the Fourth Circuit, in Richmond, Va., recalled Ms. Sassoon as whip-smart and versatile — equally at home in the higher precincts of appellate law and before a jury.

He said he would not comment "in any way, shape or form" on decisions that Ms. Sassoon faced in the Adams case or in others. He added: "All I would say is that Danielle is someone who's very principled and rigorously honest and plays it straight."

I think back again to the moment that George W. Bush had to choose between John Roberts, Mike Luttig, and J. Harvie Wilkinson. All things considered, Bush made the least worst choice.