There are two separate Senate bills in the works that are designed to protect special counsel Robert Mueller from being fired by President Trump. The special counsel’s investigation into Russian meddling in the 2016 election continues to anger the president. But it is unclear whether Congress will be able to provide real job protection legislatively for Mueller. Legal scholars offered competing views on whether the Senate bills would pass constitutional muster.
A bill sponsored by North Carolina Republican Thom Tillis and Delaware Democrat Chris Coons would provide a fired special counsel to have his dismissal reviewed by a three-judge panel within 14 days. Another bill put forward by Lindsey Graham, R-S.C., and Cory Booker, D-N.J., would require the Justice Department to explain such a firing with a panel of judges before it could take effect.
“The bills in their current form are unwise and unconstitutional,” said Akhil Reed Amar, a constitutional law professor at Yale Law School. But Eric Posner, a professor at the University of Chicago’s Law School disagreed. “I’ve concluded they do not violate the principle of the separation of powers and on the contrary advance important constitutional values.”
John Duffy, a law professor at the University of Virginia and a former clerk for the late Supreme Court Justice Antonin Scalia, said that portions of both bills were legally questionable. But he believes they could be changed to help pass any judicial review.
In August, Trump said that he wouldn’t fire Mueller. The fact is that he probably doesn’t have the authority to fire the special counsel, but he could ask an official at Justice, like Rosenstein, to do it.
“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 your gone.”
Graham’s reference to the Saturday Night Massacre harkens back to former President Richard Nixon’s decision to fire independent special prosecutor Archibald Cox during Watergate. The Attorney General and his deputy both resigned rather than carry out Nixon’s order. Finally, Solicitor General Robert Bork fired Cox.
The most significant protection the Mueller has right now is public support.
Do you believe that Mueller needs legislation to protect him in his role as special counsel?
Credit: McClatchy DC Bureau