Is the Senate Bill to Protect Mueller Constitutional?
Legislation to protect Special Counsel Robert Mueller has been hailed as a ray of bipartisan sunshine in a divided Congress. The only problem is that even if it could pass both chambers with a veto-proof majority, there may not be enough votes on the Supreme Court to save it from President Trump’s opposition.
The Special Counsel Independence and Integrity Act, sponsored by Republican Senators Thom Tillis and Lindsey Graham and Democratic Senators Chris Coons and Cory Booker, would make federal law of Justice Department regulations stating that the special counsel can only be fired for “good cause.” It would also require the Justice Department to preserve evidence from the investigation into Russian interference in the 2016 election, as well as allow Mueller to challenge his dismissal in court. Senate Judiciary Committee Chairman Chuck Grassley has said he will bring the bill up for a vote this week.
The bill’s goals sound relatively modest, as it doesn’t expressly bar the president from firing Mueller. But there’s a robust debate among legal scholars across the political spectrum as to whether the bill nevertheless goes too far. Some argue it would unconstitutionally infringe on the president’s authority to fire executive-branch officials, while others say there’s precedent for restrictions. The debate goes to the heart of not just the Mueller legislation, but of questions about the limits of presidential power—questions that have become ever more resonant in an era where the president frequently threatens his critics with prosecution.
Paul Rosenzweig, who served as an attorney for Kenneth Starr’s investigation of the Clinton administration, is among those who believe there is some precedent for the special-counsel bill: The heads of independent agencies, like the Federal Election Commission, for example, can only be fired for cause. However, even he acknowledged the Mueller bill—which combines several pieces of similar legislation—might not be airtight. “I think the bills are constitutional, but it is certainly arguable,” Rosenzweig said.
Constitutional interpretation is not simply a matter of which side has the more persuasive argument or the nobler intentions. Realistically, the bill’s constitutionality, and thus its survival, comes down to votes—and not just those in Congress. Akhil Reed Amar, a constitutional scholar at Yale University, is among those who say Congress can’t limit the president’s firing power, because the Constitution vests all executive authority in the president. Mueller and other federal prosecutors are “inferior officers” under the Constitution, and therefore can be dismissed by a “superior” officer.
Other experts point out that the Constitution does not explicitly give the president power to determine who gets prosecuted. “Presidents can set criminal-justice policy, but—except perhaps in cases with foreign-policy implications—the president does not have constitutional authority to direct a federal prosecutor to initiate or dismiss criminal charges, or to direct how to conduct a particular grand-jury investigation or criminal prosecution,” said Bruce Green, a law professor at Fordham University and a legal-ethics expert who recently co-authored a paper on prosecutorial independence. “Prosecutorial independence is a cherished value in our democracy. Prosecutors are supposed to make decisions based on criminal-justice principles, not partisan politics.”
Whether or not one agrees with Amar’s argument, there may be enough votes on the Supreme Court for it to carry the day. The reason why, according to Amar, is that much of the high court has already endorsed precedents that suggest Trump would prevail in any legal conflict over his authority to fire the special counsel.
Amar points to two cases to support his argument: Morrison v. Olson in 1988 and Myers v. United States in 1925. The Morrison case upheld the 1978 Independent Counsel Act, passed in the wake of Richard Nixon ordering the Saturday Night Massacre, which created a special executive-branch position that could be used to investigate malfeasance by high-ranking federal officials and whose occupant could not be fired by the president without cause. While this outcome would, at first blush, seem to support the Mueller bill, a number of liberal legal scholars have endorsed the late Justice Antonin Scalia’s dissent in Morrison , in which he argued the law usurps presidential power. As recently as 2015, sitting Justice Elena Kagan called it “one of the greatest dissents ever written and every year it gets better.” The Independent Counsel Act was eventually allowed to sunset after the Iran-Contra and Whitewater investigations, with both parties having felt subject to partisan crusades by unaccountable prosecutors.
Meanwhile, Myers suggests conservative justices would support Trump. The majority opinion in that case—authored by the chief justice and former president William Howard Taft—concluded that the president can fire executive-branch officials without congressional consent. Amar notes that Myers’ s reasoning was recently cited in the majority opinion in a 2010 case, Free Enterprise Fund v. Public Company Accounting Oversight Board . “The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so,” Chief Justice John Roberts, who was joined by his fellow conservatives, wrote. “That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties.” Since 2010, the high court has retained its executive-power-friendly conservative majority, and its Democratic appointees may have lost a dissenting vote: John Paul Stevens, one of the dissenters in Free Enterprise Fund , was replaced by Kagan.
Not everyone agrees that those rulings are predictive of the justices’s take on the Mueller bill. “I think it is a mistake to assume that views Supreme Court justices express in the abstract necessarily predict what they will do when confronted with the facts of a particular case,” said Deborah Pearlstein, a constitutional-law scholar at Princeton University. “A great many lawyers in this country, on the right and the left, read the papers every day and are deeply concerned that the special-counsel process be allowed to continue, in order to uphold the principle that no one, not even the president, is above the law. The justices read the papers, too.”
Pearlstein also noted that Morrison hasn’t been overturned. “Whatever criticisms might have rightly been levied against the now-lapsed independent-counsel statute that the Morrison case upheld, the proposed bills currently under consideration are crafted carefully to avoid making the same mistakes,” she added.
The legislation still has a long way to go before hypothetically reaching the Supreme Court. First, it has to get out of the Senate: Majority Leader Mitch McConnell has vowed not to bring the bill to the floor, despite Grassley’s pledge to move it forward in committee. And Trump may yet decide that replaying the Saturday Night Massacre is too great a political risk. As Rosenzweig has written, given the layers of bureaucracy at the Justice Department, firing Mueller or the official overseeing him—Deputy Attorney General Rod Rosenstein—still might fail to end the Trump-related investigations. Mere discussion of the Mueller bill in Congress might also convince the president that the legislature could turn on him if he tries to fire the special counsel.
“Legally, it is not necessary,” Rosenzweig said, referring to the Mueller bill. “Its main value is political and demonstrative.”
Without the bill in place, however, the only hope for an immediate, robust response to Mueller’s dismissal would be Congress aggressively using its oversight power to investigate the White House. With Republicans in control of both chambers, that seems unlikely. The bipartisan appeal of the Mueller bill in the upper chamber may be precisely that it prevents Congress from having to do its job.
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Be interesting to watch. I know the Presdient doesn't much like Mueller and the investigation (understandably), and I've seen where people say he might fire Mueller, but I haven't actually seen/heard him say he was going to fire Mueller-and for a man that likes to tweet out whatever he's thinling, that seems telling.
Umm, firing Mueller will not end the investigation, you realize this, right? Firing Mueller will only make things worse for the Dirtbag-in-Chief.
I think, if you look closely, I said I don't think he's going to fire Mueller. But you'd actually have to read my comment to see that.
If you look at all, you will see that I made no comment whatsoever about whether or not you think Trump WILL fire Mueller. And yes, I did see that you think he won't, before I made my comment. I simply brought up the point that it will not help Trump if he does fire Mueller, then asked if you realize this.
Your comment. Comment on the article, not on what you think I think.
I didn't say what I think you think, I ASKED you if you realize something. I can't even ask you a question without you crying about it? And you righties call US snowflakes??
Let me put this in simple words for you. Address the article, not me.
On that I agree with you, at this time. The first time Mueller actually indicts Cohen, Jared or Trump junior all bets are off. Or if it leaks that Mueller has turned Cohen, again all bets are off.
Anyone who doesn't think that Trump is hiding criminal activity (not just related to Russia) are either willfully ignorant, or a paid shill.
The left is hoping and praying that Trump would fire Mueller, but considering that nothing is coming, or will from this silly charade, the whole point is moot. The stupid lawsuit by the Democrats will probably be thrown out has having no merit.
You really need to explain this to President Trump, Gregger, he appears to be scared shitless!
Actually, he seems quite relaxed and is doing his job.
Since when?
The job of completely demolishing our country both environmentally and politically?
Is tweeting like a 15 year old really that hard?
Gee the shitstain in chief certainly wouldn't like anyone investigating all his misdeeds. Gee wonder why he doesn't like Mueller? The truth is coming. Tick, tock, tick, tock.
Yep, the truth is coming soon!
Tick, tock, tick, tock, Donald Rump.
Interesting question. The Justice Department is an executive agency under the direct control of the president and an employee like Mueller is typically one who would never have civil service protection. All cabinet heads serve at the pleasure of the president. Attorneys typically occupy excepted service positions and can be fired without cause.
The Justice Department is not required to appoint Mueller and can dismiss him at any time. Congress protecting Muller from arbitrary termination could be construed as a separation of powers issue because one branch of government (congress) would be attempting to limit the power of another (the president) without any clear constitutional right to do so. On the other hand, the entire civil service system intrudes on executive authority by saying which employees have rights and the system has never been determined to be unconstitutional.
If I were Trump, I wouldn’t normally fire Mueller. However, if Congress moved this legislation forward to limit my ability to fire him, I might fire him on the spot to prevent Congress from trying to tell me what I can and can’t do. Congress would have to make the law retroactive to cover an employee I had already fired.
Don't know who you are but feel you should be investigated.
There is a separation of powers, but the three branches of government are also supposed to act as checks and balances on the other branches so no branch of government is all powerful. This is not authoritarian rule like we see in Russia with a puppet parliament giving all power to the President supporting sham elections, congress has every right to reign in an out of control President and is charged with impeaching Presidents who abuse their power. As much as Trump and his supporters wish his administration could just seize power and become fully authoritarian as it's been leaning since inauguration, I believe the legislative and judiciary will exercise their powers prevent a full overthrow of our 240 year experiment of representative democracy by way of a constitutional Republic. America and our constitution have never been under more threat than it is now by an imperial Presidency that threatens stripping media companies of their licenses if they publish negative things about the President, that takes military action in foreign countries without congressional approval, that has suggested legalizing torture, insults our allies while giving comfort to our enemies and claims that their Nazi, KKK members and white supremacist group supporters are "good people".
Fascism: noun - a political philosophy, movement, or regime that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition.
While I totally get what you are saying, I don't know of anything in the Constitution that allows the legislative branch to dictate who does or does not serve in the executive branch. I also think it would put the SCOTUS in a bad position having to make a decision on such a question because it either forces them to effectively rewrite part of the Constitution (a big problem) or determine that a sitting president is above the law (an even worse problem). I sincerely hope this question doesn't make it that far because I don't see any good outcome.
Mueller investigated the Ray Rice tape case for Roger Goodell and the NFL, after that he lost all credibility
Pretty sure you should be investigated as well (Heard about that wild weekend)!
It wasn't me, nobody saw anything, it was dark out and I was wearing sunglasses
Are attempts to set up ( private and secret ) back channels to a foreign power Constitutional?
An interesting question to say the least. I can see convincing arguments for both sides. You really could argue that it is an unconstitutional overreach by the legislative branch into the powers and authority of the executive, but at the same time a president being able to effectively shut down or interfere with an investigation into them does present a tad bit of a problem for that whole rule of law thing. Honestly, I doubt the founders expected a situation in which a sitting president or his staff would personally be under a criminal investigation, and thus never saw the need to specifically address how such a situation should be handled.
sorry folks... no mere law by congress can restrict the powers of the president granted in the constitution
pass an amendment or go fish
Cheers
I would much prefer an amendment be passed to address the specific issue in question (can a president fire someone investigating him or his close aides?) than for this question to be brought before the SCOTUS. I don't see any ruling the Supreme Court could give that would not have serious (and negative) consequences for the country.