Congress might not be able to protect Mueller from firing

Robert Mueller testifies during a Senate Intelligence Committee hearing in Washington, D.C., on Feb. 16, 2011.


By BRIAN MURPHY | McClatchy Washington Bureau (Tribune News Service) | Published: September 26, 2017

WASHINGTON — Congress may be unable to provide any additional job protection for special counsel Robert Mueller, whose investigation into Russian meddling into the 2016 election and possible collusion or obstruction of justice continues to frustrate President Donald Trump.

A bill sponsored by North Carolina Republican Thom Tillis and Delaware Democrat Chris Coons would allow a fired special counsel to have his dismissal reviewed by a three-judge panel within14 days of the firing. A bill sponsored by Lindsey Graham, R-S.C., and Cory Booker, D-N.J., would require the Justice Department to clear the firing of a special counsel with a panel of judges before it could take place.

But at a Senate Judiciary Committee on Tuesday, constitutional scholars gave senators competing conclusions on the constitutionality of these bills designed to protect Mueller from an improper firing by Trump or someone in the Justice Department.

“The bills in their current form are unwise and unconstitutional,” said Akhil Reed Amar, a constitutional law professor at Yale Law School and a Democrat who publicly opposed Trump in the election.

John Duffy, a law professor at the University of Virginia, argued that parts of both bills were legally questionable, but they could be tweaked to help pass judicial reviews. He, however, declined to offer an opinion on how the Supreme Court might view them.

“With such judicial variability, I have to balk,” Duffy said.

Said Eric Posner, a law professor at the University of Chicago: “I’ve concluded they do not violate the principle of the separation of powers and on the contrary advance important constitutional values.”

The complex legal issues and the various answers to their questions seemed to give senators pause about the direction moving forward.

The law professors referenced almost a dozen Supreme Court cases, most notably Morrison v. Olson, a 1988 decision that held the Independent Special Counsel Act was constitutional.

“It’s hard to make a point of what’s constitutional,” said committee chairman Chuck Grassley, R-Iowa.

Tillis agreed to make changes to his bill, including removing a line that makes the legislation retroactive to Mueller’s hiring date.

“This is about checks and balances. This is about the Senate asserting its authority,” said Tillis, who stressed his support for Trump during and after the hearing.

But he acknowledged the committee has plenty on its calendar and was uncertain about when the bills might be back before the panel.

Trump has repeatedly called the Russia investigations — the Senate has two ongoing and the House one, in addition to Mueller — a “hoax.” During the summer there were several reports that Trump was, at least, considering asking Deputy Attorney General Rod Rosenstein to fire Mueller — prompting senators to draw up legislation.

In August, Trump said he wouldn’t fire Mueller.

“We’re trying to make sure something out bounds doesn’t happen, and Mr. Mueller can proceed with some confidence,” Graham said. “What I’m trying to avoid is a Saturday night massacre and the upheaval in the nation. … I want the president to know there is a process in place. There are checks and balances long before you got here and they’ll be here long after you’re gone.”

The Saturday night massacre references former President Richard Nixon’s decision to fire independent special prosecutor Archibald Cox during Watergate.

In the end, said Wake Forest professor Katy Harriger, the biggest value might be not in the actual bills but in Congress’ very public support for Mueller.

“The much more important thing it did was sort of put the president on notice that there’s bipartisan support for Mueller,” said Harriger, author of “The Special Prosecutor in American Politics.” “He may have the constitutional authority, if he can find someone in the Department of Justice to do it. Mueller is not protected from that right now, except by politics.”

Mueller appears to be making progress in his investigation, which seems focused, for the moment, on former Trump campaign chief Paul Manafort. The special counsel has also asked for numerous emails and notes about the firing of former FBI Director James Comey, according to reports.


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