“Save the special counsel!” has become the rallying cry this week on Capitol Hill, as members push legislation to protect Robert Mueller from being fired by President Trump. From all accounts, Mueller appears nothing short of a helpless animal in a caged hunt with the president. Indeed, on Friday, Sen. Chris Coons (D-Del.) declared Trump is “likely” to fire Mueller.
Despite repeated statements from the White House that there is no discussion, let alone plan, to fire Mueller, it is politically popular to be seen as protecting Mueller and resisting Trump. This effort, however, could come at a considerable cost for Congress. The bills advanced by Coons and his colleagues would offer little real protection for Mueller while putting at risk one of the most important rulings in history limiting executive powers.
{mosads}Before members of Congress put Mueller’s face on milk cartons, they could consider the likelihood that he is not going anywhere. Trump caused immeasurable harm to his presidency by firing FBI director James Comey. If he had simply replaced Comey immediately upon taking office or waited until after the completion of the Russian investigation, there would have been no special counsel and this investigation likely would have ended months ago. If he were to fire Mueller now, Trump would put his very presidency at risk. Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein and White House counsel Don McGahn likely would resign in quick succession.
Moreover, Congress could reinstate the Independent Counsel Act, which existed until 1992. Indeed, Mueller could conceivably be reappointed under that law. Finally, Congress would likely embark on its own investigation, including a possible impeachment process. In other words, firing Mueller is unlikely to achieve the desired end of stopping the investigation. It would, however, likely stop the Trump administration from doing anything other than crisis management over the firing.
More importantly, the two proposed bills would achieve little in terms of real protection. The proposals by Sens. Coons, Thom Tillis (R-N.C.), Lindsey Graham (R-S.C.) and Cory Booker (D-N.J.) would allow any decision to fire Mueller to be brought before a three-judge panel in federal courts. Currently, a decision to fire Mueller is essentially non-reviewable. However, the bills would not change the governing Justice Department regulations on the basis for terminating a special counsel. The attorney general can remove Mueller “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies.”
Thus, a court could not overturn a decision for which the attorney general can state a rational basis for any of the listed failures but also any demonstration of “other good cause, including violation of departmental policies.” Since those policies are implemented and maintained by the attorney general, it would seem a rather low bar to satisfy. Indeed, courts are loathe to question executive branch decisions on policies governing the conduct of its “inferior officers.”
What these bills would do is put at risk one of the most important precedents in our history supporting congressional power. In 1988, the U.S. Supreme Court handed down Morrison v. Olson, a 7-1 decision upholding the constitutionality of the Independent Counsel Act. That act was passed after President Nixon fired Watergate special prosecutor Archibald Cox in 1973. It allowed for the appointment of an independent counsel by a three-judge panel when requested by the attorney general.
Many have long argued that the decision was wrongly decided, including the late Justice Antonin Scalia as the sole dissenting justice. Scalia argued that “governmental investigation and prosecution of crimes is a quintessentially executive function.” The Morrison decision has been the foundation for not just the constitutionality of such independent investigations but the limits on executive power. It is one of the crown jewels for those of us who support checks on executive authority at the cost of Congress.
Coons and his colleagues would now put that precedent at risk. To put it simply, the constitutional power is not worth the prize in defending these bills. Any challenge would put Morrison back before a much-changed court with a heavier tilt toward executive power. Moreover, this is not the same act. Coons and his colleagues would have been better served to seek the reinstatement of the Independent Counsel Act itself. That law was previously upheld and the principle of stare decisis discourages the court from overturning such relatively recent holdings.
A special counsel is not an independent counsel, and in that difference could rest the future of Morrison. The special counsel is the creation of the attorney general and is more firmly placed within the executive branch. He is less independent and more subject to the oversight of the attorney general or his designee. The true institutional identity of an independent counsel was always part of the concern for Scalia and others. It was not clear if he was fish or fowl — judicial or legislative or executive. Mueller clearly stands on executive feet, and opponents on the court could use that distinction to gut Morrison.
Congress often passes largely symbolic legislation, but these bills could come at a prohibitive cost for the legislative branch. While I questioned the need for a special counsel after the election, I supported such an appointment after the firing of James Comey. The public deserves a full, independent investigation into the Russian controversy. The expanded investigation is the price a president pays for such a demonstrably bad decision. Timing is everything, and Trump hopefully has learned that lesson. However, these four senators appear to be equally tin-eared in their push for this legislation. This is not the time and not the court to mess with Morrison.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He served as lead counsel to the House of Representatives in prior litigation over the separation of powers. You can follow him on Twitter @JonathanTurley.