Fearing President Donald Trump might finally follow through on firing Robert Mueller, the Republican-led Senate Judiciary Committee has approved a bipartisan bill that would check Trump’s power to dismiss the special counsel.
Trump has repeatedly lashed out against Mueller’s Russia probe, calling it a “witch hunt” and the “end of attorney-client privilege” on Twitter after the FBI raided his personal lawyer Michael Cohen’s office (though the raid was part of a separate investigation). The president told reporters “many people” have told him to fire Mueller, adding, “We’ll see what happens.”
The bipartisan bill, the Special Counsel Independence and Integrity Act, was approved by the committee 14-7, with the support of every Democrat and four Republicans: Judiciary Committee Chair Chuck Grassley (IA) and Sens. Thom Tillis (NC), Lindsey Graham (SC), and Jeff Flake (AZ). It would give any special counsel 10 days after being fired to challenge the termination in front of a three-judge panel in federal courts.
The proposal, which doesn’t have the support of the White House, is unlikely to even get a vote in the Senate (Majority Leader Mitch McConnell says he sees no need). If it did pass both chambers of Congress, it would be unlikely to gain the support of a veto-proof majority. Even the Republicans who support it aren’t certain in their vote. Flake, a perennial Trump critic, said he is still “not convinced” the proposal is constitutional — saying that’s why he didn’t co-sponsor the legislation.
The disagreement comes down to a longstanding scholarly debate about the constitutional separation of powers, a Supreme Court case from the 1980s, and a political environment that leaves Republicans reticent to involve themselves in anything Russia-related.
“It is exasperating that lawmakers rely on such easily debunked constitutional concerns for political cover,” Steve Vladeck, a constitutional law expert with the University of Texas Austin’s law school, said.
This bill wouldn’t actually prevent Trump from firing Mueller
This bill is the combination of two proposals brought up last year to protect Mueller’s investigation — from Graham and Sen. Cory Booker (D-NJ), and Tillis and Sen. Chris Coons (D-DE) — that roughly follow a simple framework: They would allow the White House’s decision to fire the special counsel to be put under judicial review.
Currently, the US attorney general can remove the special counsel “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies.” Because Attorney General Jeff Sessions has recused himself from the investigation, in Mueller’s case, the power falls in the hands of Deputy Attorney General Rod Rosenstein. There is no way for a special counsel to challenge that decision, even if there’s a case for wrongful termination.
This proposal tries to fill that gap, establishing some oversight with a three-judge panel (made up of two District of Columbia district court judges and one US Court of Appeals judge). It doesn’t establish the special counsel as an unfireable position, nor does it even limit the White House’s power to fire Mueller.
As Vox’s Zachary Fryer-Biggs explained, “the new bill would give Mueller 10 days to challenge his termination in a specially convened court. A three-judge panel would then decide if Trump had a valid reason to fire Mueller, and they could reinstate him if Trump didn’t.” It would also require that the Justice Department save every document generated by the special counsel’s office during the judges’ review.
Whoever loses in court could then appeal to the Supreme Court. In practice, the proposal would actually put in place extremely modest measures, as Jonathan Turley, a legal scholar with George Washington University Law School, points out.
“[Good cause] is almost an unreviewable standard,” he said. “It would be very difficult for a court to review that kind of language. It’s unlikely that this legislation would materially increase protections for Mueller.”
Until now, the Republicans lawmakers who made the proposal have downplayed the urgency of passing them into law. Graham said he only sponsored the bill to make his position on the Mueller investigation public. But Trump’s latest comments on the investigation has prompted Tillis to push for some action. Yet each time Trump mounts another attack against Mueller, Republicans raise concerns that the bills might not be constitutional.
The constitutionality of protecting Mueller’s job, explained
So is this proposal to protect Mueller constitutional? The short answer is likely yes — but it’s not so clear-cut.
The conservative argument is that Congress can’t infringe on the executive authority; that constitutionally, the president maintains the power to control who serves in the executive branch. At a Senate Judiciary Committee hearing on the constitutionality of the two special counsel bills in September, which included testimony from legal scholars and experts, John Duffy of the University of Virginia School of Law said the “transfer of removal authority from the Executive to the Judicial Branch is almost certainly unconstitutional” under Booker and Graham’s proposal. Others like Vladeck, however, called the effort appropriate and in line with current legal precedent.
The conservative constitutional concerns go back to the 1988 Supreme Court case Morrison v. Olson, a 7-1 decision that upheld the Independent Counsel Act — a statute passed in the wake of Nixon’s firing of the Watergate special prosecutor that created an investigator role completely independent of the executive branch. Justice Antonin Scalia was the single dissent on the case, arguing that the independent counsel was a clear disruption of the separation of powers:
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.
Scalia said that a “governmental investigation and prosecution of crimes is a quintessentially executive function.” Despite the Court’s decision upholding the role of an independent counsel, Congress allowed the act to expire in 1999. In its place, there’s the special counsel, the role Mueller holds, which is largely the same on the merits but is not separate from the administration — the cause for a lot of debate among legal scholars.
“The special counsel is the creation of the attorney general or his designated subordinate; as such, the argument could be that any limitations intrude upon executive authority,” Turley said of the proposals to introduce a judicial review in a possible Mueller firing.
Vladeck says it cuts the other way entirely — that there is more room for protection precisely because the special counsel is under the Justice Department’s control.
“I find this public conversation so frustrating. Two things would have to be true for this to be unconstitutional: First, the Supreme Court would have to overrule Morrison and then go past Morrison and rule in the other direction,” Vladeck said, attributing the debate to a “disconnect between folks on the Hill and conservative and libertarian scholars.”
“The bottom line is Morrison v. Olson is still good law and we drafted our bill with that in mind,” Booker, who is sponsoring one of the proposals, said. “There are plenty of constitutional scholars who agree that our bill is on firm constitutional footing.”
The constitutionality debate is ultimately a political one
If Congress were to pursue a bill to add a layer of oversight to any staffing shake-ups in the Mueller investigation, Turley says there could be a “credible challenge to the bills, and it may be a toss-up when it gets to the Court.” To be sure, Congress doesn’t seem too eager to pursue it, and the Supreme Court has rarely overturned decisions made in such recent history.
Even so, this debate over constitutionality speaks to Republicans’ reluctance to actively involve themselves in the Russia investigation — a conversation on Capitol Hill that has the potential to change radically should Democrats regain a majority in the House or Senate.
There’s no question that Trump has repeatedly pushed the line on attacking Mueller and his investigation. He reportedly tried to push Mueller out last June. Congressional conservatives have rallied around the White House in trying to discredit the investigation and the Russia allegations for months.
Two House Republicans, Ohio’s Jim Jordan and North Carolina’s Mark Meadows, known for their close relationship with Trump, even called for Attorney General Sessions to resign for allowing the Russia investigation to get out of hand.
Republican leaders have taken a markedly different tone. McConnell spoke to the credibility of Mueller’s investigation and said it should be allowed to conclude without any impediments.
Senators have also made clear that the stakes of Trump actually firing Mueller would be very high. Graham said firing Mueller “would be the beginning of the end of his presidency,” and Sen. John Kennedy (R-LA) added that Trump knows better than to fire Mueller. “He’s too smart,” he said.
And when it comes to actually acting, for Republicans, Trump firing Mueller is the only red line.