Way back in the 1980s when Ted Olson was still welcome in conservative circles, he argued that the Independent Counsel Act was unconstitutional. Justice Scalia had a famous dissent about wolves in sheep’s clothing:
That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
I bet today, Scalia was thinking that Olson apparently was a wolf in sheep’s clothing.
Especially with a colloquy like this:
JUSTICE SCALIA: Who — who would appoint 21 him? The same governor that didn’t want to defend the 22 plebiscite?
MR. OLSON: Well, that happens all the time. As you recall in the case of — well, let’s not spend 25 too much time on independent counsel provisions, but —