Episode 5: John Mulaney

Summary

Courtside with Neal Katyal – Episode 5: John Mulaney

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

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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.

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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)

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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)

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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

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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)

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

Transcript

[Neal Katyal]

Foreign.

[John Mulaney]

I'm very happy that such thorough investigations have been done on Trump and that indictments post presidential impeachments might be coming. But you know, when you sharpen a political weapon, you often leave it behind for your enemy to use later. And the reason I asked about the interference of a special counsel in the daily duties of a president is because I worry that very soon, maybe depending on who's in control of Congress, we could just see a world where there's five special counsels.

[Podcast Narrator/Host]

Hi, I'm Neal Katyal, and welcome to Courtside, a podcast about the Supreme Court and what it means to you. I've argued 50 cases at the Supreme Court and served as the federal government's top lawyer, but I want the court to come alive for you. Each week I'm going to discuss a single Supreme Court case with one guest, someone who's not a lawyer and who can translate the case into plain English. Today's guest is the truly unparalleled John Mulaney. John may be the most brilliant comedian performing today, but he's also someone who has a deep love of the law and I can't wait to bring him to you. Normally, I begin each episode with the week's legal news, but not this time. John is so darn interesting in his views on the law, views on comedy, and views on the intersection between the two. So I want to bring him to you right away. All my episodes are posted [e-mail] along with a bunch of bonus stuff. You can support the show there or sign up for free. So each episode of Courtside lands right in your email. That's neilkatyal.substack.com N E A L K A T Y A L.substack.com on my substack each week you'll get access as a subscriber to all sorts of information about the case. I've summarized the case in a three pager, abridged the actual text of the Supreme Court decision, and provided the full decision. All of that is available to you as a paid subscriber. I'm donating all my profits to charity, but production costs quite a bit and I'm not running any ads at all on this podcast. We are entirely listener supported, so please do sign [e-mail] today I'm so glad.

[Neal Katyal]

To be joined by John Mulaney, one of the most brilliant comedians on the planet. And little known fact, he is obsessed with constitutional law. Indeed, I first met John at one of his shows the day after I argued the election case Moore vs Harper in the United States Supreme Court, and he had already listened to the oral argument live, as I recall. Now, today, we're going to talk about Morrison vs. Olson, one of the most critical cases in constitutional law. John, it's so good to have you here on the program.

[John Mulaney]

Hey, Neil, it's very good to see you. I hope that we are as entertaining as four hours of live oral argument streamed on YouTube.

[Neal Katyal]

So, John, you had asked me to discuss this case. I had kind of thought you'd probably want to talk about Roe versus Wade or gun regulation or climate or something like that. And you picked this case why?

[John Mulaney]

I chose this case, Morrison v. Olson, because, 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. And currently, I am a big fan of the investigations of the former president and the indictments. However, Morrison v. Olson brings up some interesting questions, some of which were solved already, some of which still linger, about who can investigate a president and how long they could do that for, and most importantly, who oversees them or who has the power to dismiss them. And then, you know, spoiler alert. Some issues of Morrison B. Olsen were solved by Mr. Neil Katyal, a young Department of Justice staffer who wrote a new statute that cleared up some of those things in, what, 1999?

[Neal Katyal]

Correct. Yeah. So let's, let's, let's hit pause on that for now and just let's go through this case. I bet. So, so this case is about the Ethics of Government act in 1978, and it's about, basically, it's enacted after Nixon, and it's trying to solve a problem. So what problem is it trying to solve, John?

[John Mulaney]

The Ethics in Government act is trying to maybe prevent another Saturday Night Massacre, which was when Richard Nixon, then being investigated by Archibald Cox in the Watergate affair, fired Cox, first using, I think, the acting Attorney General and then the. I'm going to have my titles wrong, but he went through a few people before. Yale professor Robert Bork eventually fired him on Nixon's behalf, but a couple people resigned rather than do it. Then Leon Jaworski was appointed the new independent counsel investigating the President. But to prevent another crisis like that, I would say was the biggest point of the act in 1978, to, I guess, shore up the office of who investigates the President.

[Neal Katyal]

Yeah, exactly. And so how does that Independent Counsel act structure itself? And you know, who's the boss of the Independent council. How does it work?

[John Mulaney]

Well, I think that was the question that lasted from 1978 until Morrison v. Olson and then even after that. So who is the boss of the person investigating the President? It was at that time a executive branch position appointed by a panel of three judges. Is that correct?

[Neal Katyal]

Absolutely, yeah.

[John Mulaney]

In secret they chose who would investigate the President. So three members of the judicial branch, at the behest of the legislative branch, chose in secret a special prosecutor to investigate the President who. Whose office is under the President, but the President has limited powers to fire them. So, yeah, I'm answering it in a long winded way because there kind of was no answer. As Akhil Rita Marr would say, this is bad business about how independent counsels were chosen under that act.

[Neal Katyal]

Yeah, that's exactly right. And I think the big kind of problem is that our Constitution gives the President the full prosecution power. So that's Article 2 of our Constitution. It says that the President shall take care that the laws be faithfully executed. And certainly we've had examples of Presidents who don't take care that the laws be faithfully executed. But what it means is that the entire Justice Department apparatus is under presidential control. And so you've got this real problem that Nixon brings to the fore, which is what do you do when you have a President who's engaged in wrongdoing and who has the power to fire all the prosecutors if they do anything to investigate him? And so that's what Congress is trying to do in the Ethics and Government act of 1978. It's motivated by, you know, the best of reasons, which is kind of to solve that old philosophical problem of who guards the guardians, you know, going back to juvenile or, you know, I think Dr. Seuss has a book about the bee watchers guarding the watchers of the bees and, you know, in infinite regress. So that's what it's getting at. That's what the case goes to the US Supreme Court about. And the question is, does it violate the Constitution? Does it violate separation of powers when the President is the one who's supposed to have control over prosecution? And now you've got this act of Congress that says, well, actually it goes to three judges and it's creating this independent, almost prosecutor.

[John Mulaney]

Because the Constitution says that the executive power shall be vested in the President.

[Neal Katyal]

Exactly.

[John Mulaney]

And now we're talking about someone with executive power who the President is very constrained in terms of disciplining, moderating, and ultimately firing.

[Neal Katyal]

Yeah, absolutely. So then you've got this Court, and it's a 7 to 1 decision that upholds this act. And Chief Justice Rehnquist writes, Justice Kennedy.

[John Mulaney]

Did not weigh in on. That's why it was 7 to 1 as Kennedy was out.

[Neal Katyal]

Yeah, exactly. He had just gotten appointed to the Court. So I think that's why that he wasn't involved. But they overwhelmingly say this act is okay, despite the constitutional provision. There's only one justice who disagrees, Justice Scalia. So how does the majority get there? What are they saying?

[John Mulaney]

I'd say the central points are that the Office of Independent Counsel has, quote, only certain limited duties and is limited in jurisdiction, and their tenure's temporary. Okay. So in terms of don't be afraid of the Office of Independent Counsel going rogue, lasting for too long, or wildly overstepping what the investigation is about. I think the majority opinion kind of minimizes the role of this lowercase, I inferior officer of the court. The other idea in terms of separation of powers is that this doesn't actually take power away from the President. And it's not like Congress is giving itself in office to within the executive branch. And that ultimately a president can remove the Office of Independent Counsel, but it has to be done for good cause, which you would know better than I how useful language like good cause is in a opinion like this. Because what does that exactly mean, I wonder?

[Neal Katyal]

Yeah, exactly. And that, I think is, you know, also Justice Scalia's point in his dissent, which is that, you know, if you have a good cause restriction, it means the President doesn't have full control over firing someone. And that independent counsel, if they're fired, could try and sue the President and say, hey, you wrongly took my job away and the like.

[John Mulaney]

Well, to back up, though, just, I'm ignorant of like what, because they don't, I don't think they define good cause. What, what would good cause be for a President removing the independent counsel?

[Neal Katyal]

Yet ordinarily it would be something like corruption or absolute dereliction of duty or something like that. It couldn't be because you just disagreed with a judgment decision. So let's say this act were around when Trump were in power, and let's say there's the investigation of Russia and Ukraine and all that good cause would not be, hey, I disagree with this investigation. You're fired. It'd have to be something much bigger than that. And so that's why I think it is, you know, such a restriction on presidential power. And that, that I think is Justice Scalia's main point. And I mean, this is, you Know, different people have different views on Justice Scalia, but I think this is pretty much the one of the finest opinions ever written. It's a dissent. It doesn't. He doesn't get a single other vote for it, but it's beautifully crafted and. And makes a bunch of good points. I'm curious what you thought about Justice Scalia's opinion.

[John Mulaney]

So I don't think there's a person I disagree with more than Antonin Scalia in most cases. And I also am not always the biggest. Like, I really love dissents. They're fun to read across the board from both liberal and conservative justices. It's always a much more interesting, passionate, often funnier opinion. The equivalent in comedy is sort of like 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 of comedy. And we love that as comedians. But there is something harder about writing a good majority opinion.

[Podcast Narrator/Host]

So.

[John Mulaney]

I'm not as punk rock about dissents normally because I'm like, yeah, it's a little easy to write a dissent. Justice Scalia, despite disagreeing with him all the time and not always thinking dissents are so cool, writes a dissent that is not only very smart in my opinion, my humble opinion, but basically predicted exactly what was going to happen in about six to seven years with the Whitewater Lewinsky investigation. He even said, I think it's in his dissent, but I know it's what he read from the bench, what you. Which you can hear on Oyez. He said something like, our generation or one generation beyond will see how impactful this decision was. Because he said, look, before us today is a case that's not one of the hot button issues of our time, such as freedom of speech or religion. It doesn't seem as sexy of a case. That's my words, not his. But we will see very soon what a disaster this majority opinion is. I would definitely agree, as I think many would, that in just a few years, the Star investigation and how it ran amok in the executive branch really was really predicted by what Scalia says here.

[Neal Katyal]

So what happened in Ken Starr's investigation? So he is, of course, appointed under the same act as Morrison vs Olson, the independent Counsel Act. He's initially appointed for Whitewater, and then something happens. What happens? And why do you think Justice Scalia's prophecy comes true? What's going on?

[John Mulaney]

Well, now you bring up an interesting point. Where did Scalia come out on Clinton v. Jones?

[Neal Katyal]

So he was in the majority opinion in 1997, which was about whether Paula Jones could civilly sue the president and Supreme Court. Yeah. What the Supreme Court said is, yes, she can bring her civil lawsuit against a sitting president. And Justice Stevens opinion for the court, which was joined by Justice Scalia, went so far as to say, we expect this won't be a burden on presidents, that, you know, the number of people who will sue presidents is very limited and the like, and he won't be distracted. And then that's 1997. And then in 1998, Ken Starr is appointed, and everyone realizes, boy, that unanimous Supreme Court opinion is bunk. In Clinton vs Jones and Ken Starr.

[John Mulaney]

Okay, so one version of events is Ken Starr is investigating Whitewater Clinton D. Jones. And the civil lawsuit brings up a whole other kettle of fish in terms of President Clinton's conduct. Janet Reno decides that Ken Starr's shop is already open, and so he might as well investigate that and approves the Ken Starr investigation to now include Paula Jones and possible perjury regarding the Monica Lewinsky affair. Is that about right?

[Neal Katyal]

You got it. I mean, it's amazing. You got it perfectly okay.

[John Mulaney]

And then most of us remember what happened from there, 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 unless we read all the details of the Star Report.

[Neal Katyal]

I forgot that you were a St. Ignatius guy. I was a Loyola Academy guy just a few miles away.

[John Mulaney]

So, yes, yes, we were great rivals. Neither of us. A formidable athlete, but great rivals, you and I.

[Neal Katyal]

Hey, speak for yourself. So you've got this kind of problem that the Independent Counsel act, this Ethics in Government act, creates this headless prosecution that can't really be controlled, and it becomes this political monster. So I think there's pretty much a bipartisan consensus in 1998 and 1999 that that isn't the way to go. And. And indeed, Ken Starr, as sitting independent counsel, went to Congress and testified against renewal of the Independent Counsel Act. He said this thing is unconstitutional and shouldn't be reauthorized. At the same time, you still have this fundamental problem, which is how do we deal with presidential wrongdoing? Particularly because the justice department since the 1970s had said a sitting president can't be criminally indicted, so they have to leave office. And you could impeach them and then, you know, indict them, but otherwise, you can't indict a sitting president, and you've got the worry that a president might, you know, not just for the president sitting president, but let's say it's the president's brother or spouse or children or whatever, they could squash the prosecution. So everyone's trying to like, struggle to come up with something to do there. The thing we settled on was what we call the special counsel regulations, which gave the President, excuse me, gave the Attorney general the power to go outside the Justice Department and appoint an independent person. And that's what Robert Mueller's appointed under. That's what Jack Smith is appointed under. I'm curious, John, from your perspective, like, do you think that system is working? Okay, feel free to disagree. Even though I had a role in it. But, you know, do you do like, what do we do in this circumstance?

[John Mulaney]

Well, it's a, it's a very good question. I have more little contrarian points than I do helpful, helpful ideas. No, I'm kidding. In that I think the special counsel statute that you wrote under Janet Reno at that time, is that right?

[Neal Katyal]

Yep.

[John Mulaney]

Let's see. Let's pull it up.

[Neal Katyal]

Thanks for listening to Courtside. You will have noticed that there aren't any ads on Courtside. That's because Courtside is entirely listener supported. You can support the show at neilkatyal.substack.com and come back next week. Stop over at Neil Katie y'all.substack.com to support the show. And there you'll find all the episodes, written pieces and some bonus material and so you can sign up so you don't miss anything.

[John Mulaney]

Okay. Well, I'll answer that question, Neil, by pulling up the grounds for appointing a special counsel. Let's see. The Attorney General or in cases in which the Attorney General is recused, the acting Attorney General will appoint a special counsel when he or she determines that criminal investigation will of a person or matter is warranted and that A, that investigation or prosecution of that person or matter by a United States Attorney's office or litigating division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances and B, that under the circumstances it would be in the public interest to appoint an outside special counsel to assume responsibility of the matter. I want to ask you, how does that differ from the definition of the office of independent counsel?

[Neal Katyal]

Yeah, so it differ for they're both trying to solve the same problem, which is the President controls the prosecution power. The President has nominated the Attorney General, so it's part of the President's cabinet. And yet sometimes you need to have an independent investigation into high level wrongdoing. So the big difference is here you've got the Attorney General on her his own, who appoints this special counsel. You don't have three judges who are mucking about trying to figure out whether a special counsel is warranted and who it should be. It's just the Attorney General. So it concentrates responsibility in someone and then it gives the Attorney General full control over the special counsel. And so, but you know, you could, the Attorney General could fire the special counsel or the like. It does say that they're supposed to have day to day independence, but it does provide a solution to that headless fourth branch of government problem that Justice Scalia, you know, so pointed out. You know, some people say that goes too far in favor of accountability and you need a more independent prosecutor and other people say the reverse. The independence and accountability are mutually exclusive. The more you try and control the special prosecutor and have accountability, that by definition means less independence. And so they trade off one to another. And that's, I think, the real dilemma that we were trying to grapple with when we wrote it.

[John Mulaney]

Does the special counsel, in what you wrote, still operate as an inferior officer of the executive branch with no policymaking role? And therefore is the President constrained in firing a special counsel?

[Neal Katyal]

So the President is not constrained. The President could order the Attorney General to do so. It'd have to be public, and then there'd be publicity and perhaps accountability through that structure. But there is still the possibility of the President firing the prosecutor. And that is not really a special counsel regulation thing. That's just our constitution because Article 2 says the president has the full prosecution power. So absent a constitutional amendment, we're stuck with that system. Other countries do it differently, but that's the way we do it.

[John Mulaney]

But the special counsel has to be fired for good cause, right?

[Neal Katyal]

Well, the special counsel has to. I mean, the Attorney General can discipline or even remove a special counsel if they act in ways that are so unwarranted and not consistent with Justice Department tradition and policies and practices.

[John Mulaney]

Yes, but then the actual, but then the actual Attorney General serves at the pleasure of the President and could be dismissed at will, is that right?

[Neal Katyal]

That's correct. And that's true for every cabinet officer. And that's what the Supreme Court said in a series of cases back in the 1930s. And so, you know, we've had two examples, new recent examples of the special counsel, one Robert Mueller, which didn't result in indictments. It did result in a long report saying that the President at the time, Donald Trump committed as many as 10 felonies, but he said he couldn't indict the president because he was a sitting president at the time and bound by Justice Department policy. And then we have Jack Smith, the current special counsel, who's already indicted the same guy, Donald Trump, for stealing documents at Mar A Lago and is now investigating as well, Trump's role in the January 6th insurrection.

[John Mulaney]

And who appointed. Which Attorney general appointed Jack Smith?

[Neal Katyal]

Merrick Garland.

[John Mulaney]

And Merrick Garland is then granted the expansion of his investigation.

[Neal Katyal]

Yeah. So Garland's authorized all of that. And Garland's taken an interesting tack. Under the special counsel guidelines, he's basically said, look, these provide for basically an independent investigation. So I'm going to let Jack Smith do what he wants. He can indict the president. He cannot indict the president. He can indict Donald Trump. He could not indict Donald Trump. I'm not going to get involved at all. And I take it for Garland the only way he would get involved is if Smith did something that's so contrary to DOJ policy and practices that he would discipline him or order him to do something else. But so far, it's been, Jack Smith has free reign to do whatever he wants. Which is why when Trump complains and says, this is the Biden Justice Department doing this, or the Garland Justice Department, it's actually not. It's this independent person, Jack Smith.

[John Mulaney]

And is it true independence? Is Merrick Garland actually not involved at all? Just your opinion?

[Neal Katyal]

Yeah, 100%. I mean, Merrick Garland is. Yeah, Merrick Garland's a true Boy Scout. So, like, if he says he's not involved, which is what he said publicly, he's not involved. I mean, I don't doubt that for one second. I mean, this is a guy who was the chief judge of our nation's second highest court for 20 years. I argued before him many times, and he was adored on the left and right. I mean, both sides. I mean, he, you know, Orrin Hatch, the Republican head of the Senate Judiciary Committee, know, had so much lavish praise for him. So, yeah, I take what he says and believe it 100%. There are all sorts of criticisms of Garland for being too timid or this or that, but on this question, is he directing in any way the Jack Smith prosecution? He said he's not, and I 100% take that to the bank.

[John Mulaney]

So looking at the Ken Starr of it all, do you think there's anything. You know, I'm a big fan of Jack Smith. Investigating Donald Trump for both of these things and am very excited for Trump to be brought to justice. Do you think there's anything, do you think that giving one special counsel like Jack Smith, letting him investigate both the documents and January 6th, does that start to feel like a catch all investigation like Kenneth Starr's and, and does and is that even a problem?

[Neal Katyal]

Yeah, I mean they're two totally separate investigations. In a way. I kind of like it because one of the things I was always worried about about both the Independent Counsel act and the special counsel is the old twain thing about how if you give a man a hammer, everything looks like a nail. If you give a special counsel basically one thing to investigate and their success or failure is defined by whether they prosecute that one thing they're going to lay err on the side of prosecution. If you give them multiple things and competing cases in a way that's better because it forces them to make trade offs and try and investigate only the most serious thing. So I kind of like that idea, but I can understand how it has the appearance of, hey, this person is appointed to investigate a person. Donald Trump.

[John Mulaney]

Yeah.

[Neal Katyal]

Not a crime. Yeah, yeah, yeah.

[John Mulaney]

That's interesting. What you, I mean, and we also, like you mentioned this in terms of the President firing a special counsel or an independent counsel and we haven't talked a lot about it, but these are political actors and like there'd be publicity about it and there certainly was in the Saturday Night Massacre. And we kind of know that public and political pressure is always present in these things. So no matter how it's laid out or if the President can claim it's good cause there's going to be a lot of political upheaval if a president fires a special counsel. 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. Is that, do you think that's kind of woven into the personality of someone chosen a special counsel? 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.

[Neal Katyal]

Yeah, I mean, you're not supposed to operate that way as a prosecutor. I mean, on the conference room of the Attorney General, it actually says the United States does its work whenever justice is done. And justice being done is not always prosecuting. Sometimes justice is done by not prosecuting. When there's not a crime to be investigated. At the same time, there is a little bit of Human nature here. And this is something Justice Scalia talked about in his dissent, that normally these are pretty prominent lawyers who are nominated to these positions of independent counsel or special counsel, and they often tend to be pretty aggressive. And so it's human nature a little bit to measure success or failure by. Did you actually, you know, get that notch on your belt? Did you prosecute and did you get a conviction? And even John Durham, who was appointed by Bill Barr, you know, to investigate the investigation of Russia, he obviously tried to measure his success that way, too. He indeed tried to actually prosecute two different cases, was the trial lawyer in them, both of them resulting in an acquittal, which is, like, really hard to do if you're a Justice Department prosecutor. Almost every case that goes to trial leads to a conviction. But both of those did not. I want to pick up on something, John, that you'd said a little bit ago about kind of dissents versus majority opinion. And it does remind me a bit of your comedy. I mean, your comedy is delivered orally. Here we're talking about pieces of writing like this dissent. When you think about your own work, does the writing and spoken word differ from the written word when you're writing this? Justice Scalia is writing a dissent that's in writing. But as you mentioned before, he delivered different remarks orally from the bench. How do you think about that from a performance side?

[John Mulaney]

It's funny hearing Scalia read his remarks from the bench back in 88. It's similar to, you know, jokes about people that might get back to them. He's he. Or when I do a show in front of. It's kind of like when I do a show in front of my parents, and I might have jokes about my parents in my actual, like, the question I have when I get on stage is like, do I have the nerves to do this with them sitting in the audience? And with Scalia, I was sort of like, oh, you don't. You don't quite want to read the bile of your dissent because you're sitting up there with the other eight people, and as soon as this is over, you all go back behind the curtain. And so I sort of thought on a human level, you know, from the bench, you pull some punches. Now, that's not. I mean, we've seen like, you know, fiery, strong, great dissents read from the bench. But in this case, I thought Scalia found the findings so stupid that he. But he knew to pull back a little when reading it there. And that's similar to, like, you know, we Write a bunch of jokes for an award show that are super cutting, and then you actually get out there and see the people nominated and you go, ah, we're gonna. We're gonna cut a bunch of those.

[Neal Katyal]

Yeah. So, like, the descent, the written descent by Scalia is just rhetorically so damn powerful. And, you know, like, it starts with, frequently an issue of this sort will come before the court clad, so to speak, in sheep's clothing. But this wolf comes as a wolf. And, you know, you're such a master rhetorician. I'm just curious, like, when you read that, how did you react to just the craft of writing that Scalia is doing here?

[John Mulaney]

This wolf comes as a wolf is a great line. And then again, I disagree with him on most everything. But 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. So, no, reading this. Like I said, the writer in me thought that it's amazing. The producer in me was like, boy, it's harder to write a majority opinion and to get everyone on board. Like, the producer in me is like, man. But you got to get everyone on board. You got to make all the writers happy. You got to get the cast happy. This has to come together and work because this has to go forward, whereas the dissent is just like graffiti on the wall. And so it appeals to me on a pure comedy level a lot more.

[Neal Katyal]

One last question, and this is because I absolutely love Stefan from snl, and I frequently mention him on I'm on the News and so on. And I did so this past Monday, and someone tweeted at me saying that you were actually the writer of Bill Hader's Stephane character, and that Hader wouldn't even have any advance notice of what you wrote, and he'd see it live for the first time, and that's why he'd always be cracking up on set. Is that true?

[John Mulaney]

Oh, so no. Bill and I would write those together. There is some truth to it. In between the dress rehearsal and Air, however, I would change a lot. Or maybe say four to five jokes a segment, I would change. And often I'd sub in something I'd been holding in my back pocket that I thought was really going to get him. But more often than not, it was just little details so that he had. So that he was always on edge, going cue card to cue card because he did not know what he was about to say on live tv. Also, I have to credit Andy Samberg who would with the Stephane. It was a real group effort to make Bill crack. Andy Samberg would stand next to the camera with his arms folded, just staring at him while he did it. So we all, we all enjoyed the honest breaking in that would happen in Stefan. And so we never wanted it obviously to be fake. We always wanted to recreate it by messing with Bill as much as possible.

[Neal Katyal]

Well, thank you so much, John, for Stefan, for Baby J, for this conversation about Morrison vs. Olson. You are just a brilliant and great individual and you really taught me a lot in this episode. So thank you so much. Stop over at neilkatyal.substack.com to support the show and there you'll find all the episodes, written pieces and bonus material and you can sign up so you don't miss anything.

[Podcast Narrator/Host]

That's NeilKatial.substack.com N E A L K.

[Neal Katyal]

A T Y A L.substack.com the music.

[Podcast Narrator/Host]

For the show was composed by the artists Dawson Hollow and Ronnie Barhadas. Production services are provided by J.E. peterson and Tyler Morissette at Voltage. This is Neil Katiel. Thank you for listening and I'll have a new episode of Courtside for you next.