It’s Time for Congress to Pass the Mueller Protection Bills

Over the weekend, for the first time, President Trump directly called out Special Counsel Robert Mueller by name—leading a number of congressional Republicans to publicly insist that Mueller’s investigation be allowed to run its course. Perhaps foremost among them was South Carolina Sen. Lindsey Graham, who suggested that firing Mueller would be the “beginning of the end” of Trump’s presidency.

As I wrote in the Washington Post back in January, there’s an easy way for these members of Congress to put their money where their mouths are. Rather than spouting empty platitudes on Twitter and the Sunday shows, they could pass the pending, bipartisan legislation that would make it all-but impossible for Mueller to be fired without good cause. Indeed, Graham actually co-wrote one of the relevant bills himself.

Some critics have argued that the legislation is unnecessary; others have suggested that it would be unconstitutional. To help understand these objections—and why, ultimately, I believe that they are unavailing—here’s a brief explainer on the relevant legal questions.

1. What’s the status quo?

Under the current regulation governing Mueller’s appointment (28 C.F.R. §600.7),

The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.

Importantly for these purposes, the attorney general here is actually Deputy Attorney General Rod Rosenstein (in his capacity as the acting attorney general), as Attorney General Jeff Sessions is recused from the Russia investigation.

As the above language suggests, Mueller can be removed for a number of reasons, the most sweeping of which is “other good cause.” And although the regulation requires that Mueller be notified in writing of the reasons for his termination, it provides no mechanism for him to challenge that determination. In other words, if Rosenstein (or a hypothetical successor) were to fire Mueller without good cause (either for an illegitimate reason or for no reason at all), that would be the end of the matter legally so long as the letter to Mueller asserted that good cause exists,.

2. What would the legislation do?

There are actually two different legislative proposals on the table to deal with this problem. Although they differ slightly in their particulars, they have the same basic structure: Both bills would allow a Special Counsel terminated under §600.7(d) to challenge his termination before a “three-judge” D.C. district court (which would include two federal district judges for the District of Columbia and one judge from the U.S. Court of Appeals for the D.C. Circuit). That three-judge court, in turn, would be able to decide if the substantive standard set out in §600.7(d) had been satisfied. Like all other decisions by three-judge district courts, whoever loses would have a right of mandatory (not discretionary) appeal directly to the Supreme Court. And that’s it. As I wrote in January, “[t]he bills don’t change the procedural or substantive rules governing the special counsel’s authority, or the grounds on which he can be fired; they simply ensure a role for the courts in reviewing any dismissal to make sure it’s done for the right reasons and not the wrong ones.”

3. What are the constitutional objections?

Notwithstanding the modesty of these proposals, at least some conservative legal scholars have argued that they’d be unconstitutional, pointing to Justice Antonin Scalia’s celebrated dissent in Morrison v. Olson—the 1988 Supreme Court case in which an 7-1 majority upheld the constitutionality of the now-defunct independent counsel statute. Most of these critics subscribe to the idea of a “unitary executive”—that the president can, should and must have the power to control the actions of everyone who works in the executive branch, and so statutes creating limits on his power to remove any subordinates are per se unconstitutional. But there are three distinct problems with these objections.

First, Morrison is still good law. Whatever the merits of Scalia’s dissent, the Supreme Court continues to cite it without questioning its core constitutional holding: that Congress is allowed to limit the removal of “inferior” executive branch prosecutors to cases in which a principal officer finds good cause. Indeed, many of the objections to Morrison are not about the unconstitutionality of the independent counsel statute, but rather all the ways in which, as Justice Scalia predicted, it was poorly designed. As Marty Lederman has explained, “The fact that many people came to see the Independent Counsel Act as a bad idea—including for some of the reasons described by Justice Scalia in his lone Morrison dissent—does not mean that they think it was unconstitutional.”

Second, even if there was a broader consensus that Morrison should be overruled, it’s just about impossible to count to five votes to do so among the current justices. Justice Anthony Kennedy, whose vote would almost certainly be dispositive, has long maintained that a balancing approach, rather than formalism like that which characterizes Scalia’s Morrison dissent, is appropriate in cases in which “the power at issue was not explicitly assigned by the text of the Constitution to be within the sole province of the President, but rather was thought to be encompassed within the general grant to the President of the ‘executive Power.’” As an example of when this approach is called for, Justice Kennedy cited the president’s power to remove executive branch officers—and Morrison itself.

Third, and most importantly, it’s worth emphasizing all the ways in which the special counsel regulation is less intrusive into executive power than the independent counsel statute. As Rick Pildes wrote on Lawfare last August, the regulation

made extensive departures from the structure of the Independent Counsel Act. These departures were virtually all designed to move the regime in the direction of greater constraints on the special-counsel process and to put the special counsel under greater supervision from the attorney general, while still maintaining the independence of the [special counsel].

In other words, the regulation was intended to preserve the salutary features of the independent counsel regime while eliminating its more glaring practical (and, in the view of some, constitutional) defects. I outlined most of the ways in which the regulation is narrower than the independent counsel statute in testimony before the Senate judiciary committee; for present purposes, the key is that the special counsel is generally not independent of the attorney general, unlike the independent counsel under the regime sustained in Morrison. Thus, whereas one of the principal objections to the independent counsel statute was that the independent counsel was so independent that she was not actually an “inferior” executive branch officer, the special counsel clearly is inferior. What’s more, simply providing for judicial review of his removal would have no bearing on his status.

Instead, whereas Scalia’s Morrison dissent highlighted a number of different ways in which the independent counsel statute intruded on executive power, the special counsel regulation, even with judicial review, would reflect exactly one point of intrusion: for-cause removal. So construed, the constitutional objection to the current bills is not only far narrower than the objections voiced by Scalia in Morrison. It’s only viable if one fully accepts the “unitary executive” theory of executive power—that all for-cause removal restrictions within the executive branch are constitutional. What’s more, as noted above, however popular that view may be among conservative legal scholars, it has never been fully embraced by a majority of the Supreme Court. And this view would suggest not only that these bills are unconstitutional, but that the regulation as currently written already constitutes an unacceptable infringement on executive power.

4. What are the policy objections?

If the constitutional objections to these bills are, as I’ve argued above, unavailing, then the only remaining question is whether enacting one of them would be a bad idea. Again, the key here is to understand how little the bills do—provide for judicial review of the existing substantive removal standard. So the question reduces to whether it’s a bad idea to allow a three-judge district court to review the attorney general’s initial termination decision.

I’m generally in favor of more judicial review, not less—and of broader federal remedies over narrower ones. So wholly apart from the (insane) politics of the moment, this proposal seems like a no-brainer. But even for those who are more circumspect, the arguments against such review presumably turn to some degree on confidence that the Justice Department will abide by its own regulation, and that allowing for judicial review of a removal decision is just unnecessary. Of course, there are plenty of reasons to doubt the efficacy of the internal checks and balances in this case—all the more so given the increasingly overt political pressure from the White House. So as between potentially inefficient judicial review and the possibility of firing a special counsel for illegitimate reasons, it seems to me that the scale tips rather overwhelmingly in favor of these proposals, rather than against them.

The other prudential objection is that the judicial review provided by the legislation could cause chaos; what would be the status of the investigation while Mueller litigated the validity of his termination before the courts? And would that litigation in turn become a referendum on Morrison, rather than the desired inquiry into the propriety of Mueller’s sacking? To me, this is a far more well-taken objection, but I think it ultimately misses the mark. It’s far less likely that whoever would otherwise be swinging the axe toward Mueller would do so for blatantly inappropriate reasons if they knew there was even the specter of judicial review. And if somehow the dismissal were undisputedly for good cause, presumably Mueller wouldn’t turn around and bring suit. So conceived, the particular genius of the Mueller protection bills is that, if they’re enacted, the judicial procedure they would create would almost certainly never have to be utilized.

5. Where do things stand?

Notwithstanding the above analysis, both bills have, by all accounts, stalled in the Senate judiciary committee—which held a thorough hearing on them six months ago next Monday. Back in January (when news broke that the president had—unsuccessfully, as it turned out—instructed White House counsel Don McGahn to fire Mueller last summer), Republicans asked about the legislation suggested that McGahn’s refusal proved why these bills weren’t necessary. That was baloney then, and it’s an even more alarming abdication now, with the president seemingly poised to go after Mueller directly. And yet, for all of the talk about Mueller over the past few days, nary a Republican has come out in support of passing these bills—including their Republican co-sponsors.

If the hitherto-silent Republicans really have constitutional objections to these bills, let’s hear them (per the above, I’m skeptical). If they have policy objections, let’s hear those, too. But for those who actually want to ensure that the special counsel’s investigation continues unimpeded and don’t just want to look good to their constituents, there’s an easy way to do more than just threatening the president in tweets and talk-show interviews:

Pass this legislation.