Courtside with Neal Katyal – Episode 5: John Mulaney

Date: July 19, 2023
Main Case Discussed: Morrison v. Olson (1988)

Episode Overview

In this intellectually lively and surprisingly funny episode, former Acting Solicitor General Neal Katyal hosts comedian, writer, and constitutional-law enthusiast John Mulaney to unpack the Supreme Court case Morrison v. Olson. They explore the case’s origins, its enduring relevance to modern presidential investigations (from Nixon to Trump), and its impact on legal mechanisms designed to hold presidents accountable—while punctuating legal debate with wit, accessible analogies, and personal anecdotes. The discussion blends Supreme Court history with comedy, the politics of prosecutorial power, and the human foibles of those tasked with enforcing the law at the highest levels.

Key Discussion Points & Insights

1. Why Morrison v. Olson?

[03:20] John Mulaney on choosing the case:
Mulaney explains his fascination with Morrison v. Olson, describing it as pivotal in shaping how America investigates presidents and who has the real authority to do so.

• He draws clear lines between the Watergate scandal, the creation of the Ethics in Government Act, and current investigations into ex-president Trump.
• Quote:

  "Though it's from 1988, it brought up a lot of questions of how we can investigate a president, who can investigate a president, and whether or not the President can fire that person. ...Some issues of Morrison v. Olson were solved by Mr. Neal Katyal, a young Department of Justice staffer who wrote a new statute that cleared up some of those things in, what, 1999?" (03:20)

2. History and Structure of Prosecutorial Oversight

• They review the Ethics in Government Act of 1978 (post-Nixon), which was designed to avoid another “Saturday Night Massacre.”
• The act inserted a panel of three judges into the appointment of independent counsels—creating awkward lines of authority and tension with constitutional principles.
• Quote:

  "Three members of the judicial branch, at the behest of the legislative branch, chose in secret a special prosecutor to investigate the President… As Akhil Reed Amar would say, this is bad business about how independent counsels were chosen under that act." — John Mulaney [06:15]

3. Constitutional Dilemma and the Supreme Court Decision

• Katyal explains that the core constitutional problem was the President’s exclusive Article II power to execute federal law, conflicting with a prosecutorial appointee outside direct presidential control.
• The Supreme Court, in a 7-1 decision, largely upheld the Act, with only Justice Scalia dissenting.
• Mulaney points out the majority’s arguments:

  "The Office of Independent Counsel has, quote, only certain limited duties and is limited in jurisdiction, and their tenure's temporary… [They] minimize the role of this lowercase, i inferior officer of the court." (09:09)

4. Justice Scalia’s Famous Dissent & Its Legacy

• Both guests highlight the rhetorical power and prescience of Scalia’s dissent. Mulaney admires its craft—even though he disagrees with Scalia on most issues.
• Scalia warns the mechanism is ripe for abuse and will backfire.
• Mulaney’s analogy:

  "The majority opinion is a good piece of narrative comedy. And a dissent is like meta comedy, which gets to break the fourth wall and call out the tropes." (11:51)

• Katyal praises Scalia:

  "This is pretty much one of the finest opinions ever written. ...It's beautifully crafted and makes a bunch of good points." (10:19)

• Memorable Scalia quote, cited by Katyal:

  “This wolf comes as a wolf.” (32:12)

5. Ken Starr, Clinton, and Proof of Scalia’s Concerns

• The conversation shifts to how the Morrison v. Olson legacy was realized with the Ken Starr investigation of President Clinton.
• They trace the expansion of Starr’s probe from Whitewater to Monica Lewinsky, paralleling Scalia’s warnings about investigations running amok.
• Quote:

  "He [Scalia] basically predicted exactly what was going to happen in about six to seven years with the Whitewater Lewinsky investigation." — John Mulaney [12:44]

6. Reforms: Special Counsel Regulations

• Katyal describes his role in drafting new Justice Department special counsel regulations (1999) that replaced the Ethics Act—shifting appointment and control from judges to the Attorney General.
• Special counsels (e.g., Robert Mueller, Jack Smith) are now appointed by the Attorney General, with more direct lines of accountability.
• Mulaney quizzes Katyal on the differences and similarities to the old system, including the notion of “good cause” removals and the balance of independence and presidential accountability.
• Quote (Katyal):

  “…it concentrates responsibility in someone [the AG] and then gives the Attorney General full control over the special counsel. ...It does provide a solution to that headless fourth branch of government problem that Justice Scalia, you know, so pointed out.” (20:18)

7. Human Nature, Public Perception & Tie-Ins to Current Events

• They discuss the dangers of defining prosecutorial success by indictments, and the potential for political weaponization regardless of legal frameworks.
• Quote (Mulaney):

  "I thought it was interesting that you said that the prosecutor appointed a special counsel looked at their own success or failure in terms of whether they prosecute. ...It's like they don't want to go, hey, I looked into it and we're actually good here. Nothing happened and I'm going to go about my way." (27:48)

• Katyal responds, acknowledging human nature:

  "There is a little bit of human nature here. ...It's human nature a little bit to measure success or failure by: did you actually get that notch on your belt? Did you prosecute and did you get a conviction?" (28:51)

Notable Quotes & Memorable Moments

Comedy/Legal Crossover:

• Mulaney likens the writing of majority opinions to “narrative comedy,” while dissents are “meta comedy” for their freedom to be clever and subversive.
• On Scalia’s style:

  "Scalia would occasionally have other, like, almost Don Rickles level bits of writing, like calling stuff applesauce, I always thought was very funny. Meaning, like, the logic is terrible." (32:42)

Personal Anecdote:

• Mulaney recalls reading the Starr Report in his high school lunchroom, only for teachers to confiscate the paper.

  "Culminating in the Star Report being published in the newspaper and me reading it in the lunchroom in high school at St. Ignatius, where deans and teachers were running around ripping the newspapers out of our hand..." (16:01)

Behind the Stefan Character (SNL):

• Katyal, a fan of Mulaney's comedy, brings up Stefan, the SNL character. Mulaney reveals he and Bill Hader co-wrote it and would deliberately surprise Hader live to make him break character.

  "Often I'd sub in something I'd been holding in my back pocket that I thought was really going to get him... So we all enjoyed the honest breaking in that would happen in Stefan." (34:06)

Timeline & Timestamps of Important Segments

• [02:28] Katyal introduces Mulaney and the topic: Morrison v. Olson
• [03:20] Mulaney explains the contemporary importance of the case
• [04:44] Discussion of the Ethical in Government Act’s origins after Watergate
• [06:15] Mulaney on the awkward appointment process for independent counsels
• [09:09] Majority rationale in Morrison v. Olson
• [10:19–14:03] In-depth on Scalia’s dissent, its predictions, and rhetorical power
• [16:01] Mulaney recalls the Starr investigation and its high school cultural moment
• [18:57] How Katyal helped craft the modern special counsel regulations
• [22:51] Katyal makes the constitutional case for presidential firing power
• [25:19] Katyal offers a personal view on Merrick Garland’s independence
• [26:52] "Does Jack Smith have too much power?" - The risk of prosecutorial bias
• [30:53] Mulaney compares dissent performances and comedy shows
• [32:42] Scalia’s wolf quote and rhetorical prowess
• [34:06] SNL Stefan writing room stories

Final Thoughts

This episode deftly bridges high-level constitutional law and popular culture, with John Mulaney’s comedic sensibility illuminating complex legal debates and Neal Katyal’s explanations grounding those debates in practice and precedent. Listeners are left with both laughs and a nuanced understanding of the ongoing challenge: how to create a system that investigates powerful actors—without becoming a tool of political retribution or losing sight of justice.

Essential Takeaway:
Morrison v. Olson’s legacy is a cautionary tale—one that continues to shape, and sometimes haunt, the frameworks America builds to hold presidents accountable. As John Mulaney quips, “When you sharpen a political weapon, you often leave it behind for your enemy to use later.” (00:02)

For further material, written case summaries, and episode extras, visit: nealkatyal.substack.com