Why
congressional Republicans say they can’t protect Mueller from Trump.
By
Tara Golshan Mar 29, 2018, 11:00am EDT
Senators,
both Republican and Democratic, overwhelmingly say they want special counsel
Robert Mueller’s investigation into Russia’s alleged election meddling to
continue without any intrusions.
Sens.
Chris Coons (D-DE) and Thom Tillis (R-NC) put out a statement earlier this week
urging “President Trump to allow the Special Counsel to complete his work
without impediment.” A group of Senate Democrats also sent the Department of
Justice a letter on Tuesday asking it to “publicly commit to refuse any order or
request — whether express or implied — to interfere in the Special Counsel’s
investigation.”
But
when it comes to actually protecting Mueller, congressional Republicans are
quick to come up with excuses. There are currently two bipartisan proposals —
one from Tillis and Coons and another from Sens. Lindsey Graham (R-SC) and Cory
Booker (D-NJ) — that would check President Trump’s power to fire Mueller by
putting the decision in front of a three-judge panel in federal courts. Both
pieces of legislation look unlikely to go anywhere.
Asked
if Congress should act, Sen. John Kennedy (R-LA) told Vox recently he is “not
sure it’s constitutional for us to tell the president who he can fire and can’t
fire.”
Even
Sen. Jeff Flake (R-AZ), a perennial Trump critic, said he is “not convinced” the
two proposals are constitutional and that any congressional push to protect
Mueller would intrude on executive authority. But conversations with legal
experts show it’s not that simple.
“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.
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.
There
are two bills to protect Mueller. Neither would actually prevent Trump from
firing him.
Two
bills have been proposed in the House and Senate to protect Mueller’s
investigation — the Special Counsel Independence Protection Act, from Graham and
Booker, and the Special Counsel Integrity Act, from Tillis and Coons — that
follow roughly the same 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.
These
two bills try 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). Neither proposal establishes the special counsel as an
un-fireable position, nor does either even limit the White House’s power to fire
Mueller.
The
difference between the bills is when the judicial branch would get involved in
the process of firing the special counsel. In the Graham-Booker bill, a special
counsel “may only be removed if the Attorney General files an action in the
United States District Court” and notifies relevant Senate and House Judiciary
committees. In the Tillis-Coons bill, the special counsel must be informed in
writing of the specific reason for being fired and is given a course of action
to appeal the decision after the fact.
Whoever
loses in court could then appeal to the Supreme Court. In practice, both
proposals would actually be extremely modest measures, as Jonathan Turley, a
legal scholar with George Washington University Law School, points out.
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