when americans find themselves inside the voting booth on tuesday, for many the decisive factor will be which candidate<u+2014> donald trump or hillary clinton <u+2014>should fill antonin scalia <u+2019>s empty seat on the supreme court. this is no small thing. still, whose vote will replace scalia<u+2019>s on the high court is only half the scalia story, and perhaps not the important half. beyond even his jurisprudence, this was a man whose wisdom was to appreciate that american liberty is rooted in the separation of powers<u+2014>and that the chief means of accountability is the ballot box and not the criminal courts. the left abandoned this principle long ago. from the special prosecutors who dogged caspar weinberger and scooter libby to the outrageous <u+201c>john doe<u+201d> probes in wisconsin of conservative groups such as the free-market club for growth, the left has a history of criminalizing political differences for electoral advantage. this year, alas, some on the right likewise pinned their hopes for tuesday<u+2019>s election on an indictment or news of a crime that would knock mrs. clinton out of the race. let<u+2019>s stipulate that mrs. clinton may well deserve to go to jail. but look how the focus on <u+201c>lock her up<u+201d> has turned out: with disruptive, 11th-hour pronouncements by fbi director james comey first opening and then closing an investigation into newly discovered clinton emails. truth is, mr. comey<u+2019>s real outrage was his acquiescence to the handcuffs the justice department put on fbi investigators throughout the clinton email investigation<u+2014>especially justice<u+2019>s refusal to go to a grand jury, without which investigators have no good way to compel evidence and testimony. the principled stand for an fbi director would have been to inform the attorney general, loretta lynch, that unless she gave his agents the standard tools of an fbi investigation, he would resign and tell the american people why. instead, mr. comey proceeded with the constraints and then showboated with a july press conference absolving mrs. clinton of any prosecutable wrongdoing. never mind that an indictment was not his decision to make. no doubt ms. lynch would not have indicted mrs. clinton. but had mr. comey kept his mouth shut, she, president obama and mrs. clinton would be answering for the decision<u+2014>not to mention for the highly unethical meeting between the attorney general and mrs. clinton<u+2019>s husband that would have remained secret but for an intrepid reporter. now all mr. comey has to show for his concern for his personal reputation is to have added the fbi to the list of government institutions the public no longer trusts. and let<u+2019>s remember how republicans blinked on lois lerner. when congress held her in contempt for refusing to testify about irs targeting of conservative groups, the house had three choices: pursue her civilly (which would take years), jail her until she testified, or refer the matter to the local u.s. attorney. then-speaker john boehner opted for the last, probably realizing the obama justice department would never prosecute. throughout it all, congress was lectured about not doing anything to jeopardize a criminal investigation. but in the american understanding, government is accountable first and foremost to we the people operating through our elected representatives. as a co-equal branch of government, congress is free to use its own powers regardless of what some executive agency might be doing. certainly jailing ms. lerner would not have been without its political risks. then again, the founders meant for such decisions to require hard political calculations. and the results of opting for an indictment house republicans knew would not come? ms. lerner has mostly gotten off scot-free. the american people still do not know the whole story. and on friday, a ruling from a federal judge in ohio reminded us the irs is still targeting conservative organizations for illegal scrutiny. what does mr. scalia have to do with any of this? well, one of his bravest stands was in morrison v. olson , in which he was the sole dissenter from an opinion that upheld the independent counsel law as creating a legitimate path to prosecuting government officials. scalia forcefully disagreed. not because he thought there were no misdeeds. but because he understood that this law was an unconstitutional extension of executive power that threatened our liberty and cheapened our politics. how much easier, he noted, for congress <u+201c>instead of accepting the political damage<u+201d> that would come from launching a presidential impeachment <u+201c>on trivial grounds . . . simply to trigger a debilitating criminal investigation of the chief executive under this law.<u+201d> his larger point was this: <u+201c>while the separation of powers may prevent us from righting every wrong,<u+201d> he noted, <u+201c>it does so in order to ensure that we do not lose liberty.<u+201d> a lesson for conservatives who may have forgotten that in politics not every wrong will be righted, and that the way to hold pols such as mrs. clinton accountable is through congress and the ballot box<u+2014>not an fbi director. write to mcgurn@wsj.com.
the antonin scalia election - wsj
william mcgurn