Senator Graham’s Proposed Return to the Independent Counsel Statute and the Problem of Impeachment Anxiety Syndrome

Bob Bauer
Monday, July 31, 2017, 10:05 AM

As Congress begins to respond more forcefully to Donald Trump’s excesses, a new proposal is taking shape: legislation to limit the president’s capacity to fire the special counsel. Lindsay Graham appears to be leading this charge, working with Cory Booker and others, and they plan to introduce a bill this week. The details are so far limited.

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As Congress begins to respond more forcefully to Donald Trump’s excesses, a new proposal is taking shape: legislation to limit the president’s capacity to fire the special counsel. Lindsay Graham appears to be leading this charge, working with Cory Booker and others, and they plan to introduce a bill this week. The details are so far limited. But it apparently involves a law on the model of the defunct independent counsel statute that would apply to both this administration and future ones, and by providing for judicial oversight, would constrain the power of presidents to interfere with investigations affecting both them and other senior executive branch officials.

Congress may move in this direction because it is reluctant to resort to the clear remedy provided by the Constitution for presidential obstruction of justice: the impeachment process. A legislative solution may seem to legislators vastly preferable to high constitutional drama. Graham has warned of “the beginning of the end of the Trump presidency” if he “goes after” Mueller. Passing a law to block the firing of Mueller is meant to make the firing less likely and to forestall the “beginning of the end” launched by an impeachment process.

The trouble is that a law on the model of the misbegotten experiment with the independent counsel law is not a good answer. We have been there, done that, and thought better of it: There is no reason to believe that it would work any better the second time around. There is also no cause for Congress to fear or flee reliance on the impeachment power. In the near term, Congress possesses flexibility in the threatened use of the impeachment power to accomplish what needs to be done to stop further Trump attacks on the Department of Justice and the Special Counsel. Members need not be anxious about catapulting the country into a state that is now so often described as “crisis” or “chaos.” Should these half-measures fail, Congress would have to overcome its anxieties about impeachment and answer the firing of the Special Counsel by acting to remove President Trump from office.

Begin with the problems with an Independent Counsel-type solution. When Congress decided to let the law die, Democrats and Republicans were both relieved. They had come to a rueful admiration of Justice Scalia’s lone dissent from the Supreme Court’s decision, Morrison v. Olson, upholding the constitutionality of the statute. Scalia’s objections were theoretical—interference with unified president control of the executive function—but also practical. He warned about the political abuse of the law, and he questioned whether the judiciary could come away unscathed from the partisan brawling. His analysis proved prescient on both counts.

The majority in Morrison Court did not share Scalia’s worries, but we have the benefit of experience—constitutionally relevant experience—and it does not tell in favor of an encore. As Adrian Vermeule has written here, “The bipartisan condemnation of the majority opinion, and elevation of Justice Scalia's dissent to canonical status, means that in all likelihood the Court would discard Morrison or distinguish it into oblivion.” So a new independent counsel-type law would face, at best, an uncertain fate in the Court. This constitutional problem may be compounded by such a law’s enactment, in the near term, to protect Bob Mueller by imposing restrictions on the executive in the conduct of an ongoing investigation. With this concern in mind, one commentator has suggested that Congress might have to wait until Mueller is fired to pass a new independent counsel statute pursuant to which a successor could then be appointed to complete the investigation with the new protections. This could be said to be the worst of all worlds: Mueller is gone, his investigation is disrupted, and a constitutionally vulnerable, discredited law goes on the books for only as long as the litigation that is likely to remove it again.

The Sessions controversy should also refresh appreciation of one of the dangers of reviving Independent Counsel approach. In the midst of tensions over the independence of the law enforcement function, the enactment of a new independent counsel law would introduce new and perverse incentives for future presidents to worry—as Trump has, more openly than any of his predecessors—about an Attorney General’s political reliability. For the Attorney Generals who are chosen, the shift from a protected Special Counsel to one who is much more institutionally “independent” will add to the pressure to choose these Counsels with the utmost political care. It is hard to judge how much of a difference these considerations will make in any Administration. For many, this difference may be marginal. For those we would worry most about, it may be substantial.

Rather than reviving some version of the largely discredited independent counselstatute, Congress should exercise strong oversight while leaving no doubt about the readiness to move as necessary to impeachment. For the moment, in the last few days, an informal “oversight” process seems to be having salutary effects. The Chairman of the Judiciary Committee tweeted out that “everyone in DC” should know that there was no room on the 2017 Committee agenda for an Attorney General confirmation process. The Senate Republican leader Mitch McConnell and other senior Republicans spoke clearly against the hectoring of the attorney general and in support of Robert Mueller. Graham made his strong statement about the doom awaiting this administration if the president fires Mueller.

This oversight activity does not have to continue informally but can be heated up and brought closer to the impeachment process. It is not hard to imagine a hearing into the effects of the president’s behavior on the Department of Justice. Senior officials could be called to testify about the impact on Department morale and regular order in the conduct of its operations. They might be questioned about any White House contacts outside the contacts policy, or even contacts consistent with the policy that would give grounds for concern. Testimony could be taken on the reasons for the well-established understandings of the relationship of president and DOJ in the administration of the law enforcement function. This is another way that the Hill can get its message across to Mr. Trump that the firing of Sessions, or that of Mueller, could bring an end to the Trump government.

And the message should be be clearer even than Graham’s: If the President fires Mueller, Congress will institute impeachment proceedings. Scalia in his Morrison dissent did not dispute that the a President who exercised his power to terminate an investigation into his own conduct could face impeachment. Indeed he was making precisely and correctly the point that impeachment was the constitutionally prescribed judgment that Congress could pass on presidential obstruction. Passing an independent counsel-type statute is an evasion of Congress’s constitutional responsibility to confront clear-cut evidence of impeachable conduct—either by acting to impeach, or by threatening impeachment and meaning it.

The meretricious appeal of a legislative “fix” derives from the belief that impeachments must be reserved for extraordinary cases. But there is nothing extraordinary about the threat of impeachment as a response to a President who fired the FBI Director out of frustration over the Russia investigation, and who has since openly considered further dismissals to weed out senior law enforcement officials he deems complicit in his legal troubles (Sessions) or actively causing them (Mueller). This is not all. There is other evidence of corrupt administration of the Department of Justice, such as the calls for the investigation of his political opponent, and the demands for “loyalty” from law enforcement officials.

All together, the president has engaged in what an experienced student of impeachment has referred to as the heart of an impeachment case: “repeated type of wrongdoing” that is “intended to further his personal political interests rather than any national policy objective.” Even the Wall Street Journal has conceded that this president’s behavior conduct is “careening toward a historic reputation” that puts him in the disreputable company of Richard Nixon.

A large part of the problem in the discussion of impeachment is the anxiety about precipitating constitutional “crisis.” The notion of “crisis” is misleading, and spreads terror throughout the ranks of elected officials and the press about what it means to speak now about impeachable conduct. It is not a “crisis” for Congress to warn a president that he may be risking impeachment when he engaged in conduct—a “repeated type of wrongdoing”— within the range that warrants removal from office. And it is not more of a “crisis” if a President responsible for impeachable conduct is impeached. “Crisis” more correctly describes the failure of institutions to respond as designed to assaults on the constitutional structure.

None of this is to gainsay the political difficulties of dealing with this problem in a young presidency. Mr. Trump is sure to keep defending himself by insisting that he is the victim of a “witch hunt” that started immediately on his taking office. He will assail his critics as leaders of partisan and Establishment resistance to his 2016 victory. That argument will rapidly lose credibility as Republicans begin to break away on this issue, as they have begin to do. Moreover, as the Watergate experience suggests, confirmed by the early polling in the present situation, the president’s political position within the electorate will erode quickly if he fires Mueller.

One other unique aspect of the Trump presidency seems to be feeding into the uncertainties about the triggering of the impeachment process. In Watergate, then again in the case of President Clinton, the issues came slowly to light, having been hidden from view. That’s how scandal is expected to unfold, revelation by revelation, with the president and others seeking to avoid disclosure. Trump, however, has engaged in much of his misconduct out in the open, in tweets and interviews. He told Lester Holt he fired Comey over Russia; he has tweeted his frustration with Sessions for the same reason, and, through the same social media, he has berated his attorney general for failing to institute a criminal investigation of his 2016 political opponent. The behavior is so flagrant and unapologetic that it has been assigned to some special category: Trump’s impulsiveness, inexperience, or plain looniness. And so it may seem sensible that if the president intends with that same child-like impulsiveness to fire Mueller, the answer is just to stop him by passing a law. He is misbehaving, and so we must now administer discipline. The standard for judgment is being drastically lowered.

This seems the wrong way to look at Trump’s assault on the norms and rules on which the professionalism and independence of law enforcement depends. His very public misapprehension of his role and authority should be addressed head-on. It is immaterial that his views are those of someone with a radically limited understanding of the Constitution and the government, who seems unable to see the difference between his private interests and those of the public at large. Mr. Trump has said what he said, and done what he has done; and in each instance, more than once. The very flagrancy of this conduct threatens public understanding of basic principles essential to the rule-of-law and maintenance of constitutional regular order. It would be a mistake to assume that the harm threatened by this conduct will end with his term.

Congress may well judge that it is best to allow the Mueller investigation to run its course and that, as Jack Goldsmith has written, the Department of Justice is holding firm and running properly in adherence to norms and the conscientious performance of its duties. That the president has engaged in impeachable conduct does not mean that the Congress is compelled to institute proceedings now against him. But the Congress can also be clear about what Lindsay Graham surely meant when he said that the firing of Mueller would be “the beginning of the end of the Trump government.” If President Trump fires Sessions to clear the path to Mueller’s dismissal, or he just goes ahead and dismisses the Special Counsel, the answer is to impeach him.

Call this an early deliberative stage of an impeachment process—a process which can begin with congressional engagement with the impeachment issues, and need not go all the way. It is a process by which the Congress can begin to warn and educate or inform the president, and it can proceed to more serious stages if the president is prepared to provoke the confrontation. Congress’ use of the impeachment power is far superior to a return to the constitutionally murky, politically disabling conflicts invited by the last Independent Counsel law. Passing a law like this in responding now to Trump is, in constitutional terms, just passing the buck.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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