Congress and the Special Counsel

Trump shouldn’t fire Mueller, but a Senate bill to shield him is unconstitutional.


FBI Director Robert Mueller testifies before the House Judiciary Committee hearing on Federal Bureau of Investigation oversight on Capitol Hill in Washington, D.C., in  2013.
FBI Director Robert Mueller testifies before the House Judiciary Committee hearing on Federal Bureau of Investigation oversight on Capitol Hill in Washington, D.C., in 2013. PHOTO: YURI GRIPAS/REUTERS

While Donald Trump’s allies hope he won’t fire special counsel Robert Mueller and his opponents pray he will, each side recognizes it would jeopardize his Presidency. But Congress would compound the damage if it passes legislation aimed at curtailing Mr. Trump’s right as head of the executive branch to do so.

Last week a bipartisan group of Senators including Lindsey Graham (R., S.C.), Thom Tillis (R., N.C.), Christopher Coons (D., Del.) and Cory Booker (D., N.J.) introduced the Special Counsel Independence and Integrity Act. The bill would codify that the special counsel can be fired only by a senior Justice Department official for cause. If Mr. Mueller were fired, he would have 10 days to appeal to a panel of three judges.

Majority Leader Mitch McConnell said Tuesday he won’t bring the bill up for a vote, and Democrats are howling. But the bill is bad government and unconstitutional. As the late Justice Antonin Scalia noted in his famous dissent in Morrison v. Olson, giving another branch a say in a decision about what is properly an executive branch power threatens the separation of powers that is at the heart of American liberty. 

Scalia was writing about the independent counsel law, which Congress has since let expire. The special counsel provisions that took its place are more modest and technically under Justice Department supervision. But to the degree he is insulated from accountability to the leader of the executive branch, a special counsel still often leads to mischief and excess.

As special counsel, Mr. Mueller exercises prosecutorial powers that are manifestly executive. They are part of a President’s constitutional obligation to “take care that the laws be faithfully executed.” In other words, prosecutors are meant to be accountable to the President.

But what if a President is corrupt? The Constitution has an answer for that too, and its primary lever is political rather than prosecutorial. In our system, the President is accountable to the people who can express their displeasure in two ways: at the ballot box by voting him out of office or through their elected representatives via impeachment.

In 1978 Jimmy Carter’s Office of Legal Counsel wrote a memo about the power to remove a special counsel in the government. “Because the Special Counsel will be performing largely executive functions,” said the memo, “the Congress may not restrict the President’s power to remove him.” The Senate’s protect-Mueller bill violates this core constitutional principle. Its only purpose is to restrict the President’s ability to remove an executive branch official.

The good news is that, at least among Republicans in Congress, even those warning the President not to fire Mr. Mueller and who are supporting this bill say there’s no urgency. Mr. Graham said this week he didn’t think Mr. Trump would fire Mr. Mueller.

Mr. Trump has been rude and maladroit in his handling of many issues, not least in the way he fired FBI director James Comey, triggering Mr. Mueller’s appointment. But Congress shouldn’t compound the mistake by indulging in legislation aimed at overriding the President’s constitutional authority. If Mr. Trump fires Mr. Mueller, the way to respond is with the normal checks of constitutional government.

Appeared in the April 19, 2018, print edition.

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