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Last Monday, I wrote a lengthy post about why Congress should pass the pending, bipartisan bills to protect Special Counsel Robert Mueller from being fired without good cause—and why the proffered constitutional objections to that legislation are based upon a combination of unsubstantiated (and contestable) assumptions about the current Supreme Court’s willingness to overturn Morrison v. Olson and far more basic misunderstandings about what these bills would actually do. With that post in mind, I’d like to respond to my friend Adam White, who argues that, rather than pass these bills, Congress should create a special court procedure to provide for timely, expeditious and appropriate consideration of a lawsuit by Mueller contesting an allegedly wrongful removal. On closer inspection, Adam’s post only underscores why the pending bills can and should be passed forthwith.
In a nutshell, Adam argues that Congress should require any lawsuit arising from the allegedly wrongful termination of a special counsel to be brought on an expedited basis before a three-judge district court in the District of Columbia under 28 U.S.C. §2284, with the concomitant right of mandatory appeal to the Supreme Court under 28 U.S.C. §1253. He argues that “Congress should require the district court to afford ‘expedited’ review of such cases.” And he argues for an automatic stay, “requiring the parties to preserve all materials produced or held by the special counsel’s investigation for the duration of judicial review.” Finally, these moves are necessary, Adam writes, because even without them, “there would still be litigation to determine what actually constitutes ‘misconduct, dereliction of duty, incapacity, conflict of interest, or ... other good cause’ within the meaning of the regulations, and whether that standard has been met in the case of the particular special counsel.”
Procedurally, what Adam is proposing is, with one technical addition, what the pending bills would already provide for. For example, the Tillis-Coons bill (the “Special Counsel Integrity Act”) already provides that “An action filed under this subsection shall be heard and determined by a court of 3 judges not later than 14 days after the date on which the action is filed in accordance with the provisions of section 2284 of title 28, United States Code, and any appeal shall lie to the Supreme Court.” And although the Graham-Booker bill doesn’t include the same time limit, it does also require any action to be filed before a three-judge district court. So all Adam’s proposal really adds here is that the three-judge district court would have to sit in the District of Columbia. Fair enough, but I take that as a friendly amendment, not a hostile one. (Adam also suggests that Congress legislate an automatic stay and a material-preservation requirement, but, of course, both a stay and a preservation order would be available under current law.)
More problematically, Adam’s post proceeds on the assumption that litigation would already be possible without these new procedures. But it’s not at all clear that he’s right that current law would indeed allow for litigation over whether the termination of a special counsel comported with the good-cause standard provided by 28 C.F.R. §600.7(d). After all, the same regulation provides, in 28 C.F.R. §600.10, that “[t]he regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.” It’s not hard to imagine the government arguing that, by dint of §600.10, there’s no individual right on the part of the special counsel to contest the validity of his termination under §600.7(d).
Given that constraint on existing law, I had always thought, as I testified last September, that the true salutary effect of both of the pending bills is their guarantee of judicial review of the existing removal standard. Perhaps I’m misreading it, but Adam’s post seems to support that goal, and object solely to Congress codifying that removal standard by statute, rather than simply providing for enforcement of the existing administrative standard for removal in §600.7(d).
At the end of the day, the difference between the existing proposals that I believe Congress can and should enact, and the legislation Adam supports, appears to be simply whether the removal standard is codified or simply incorporated from the regulation, and whether the suit before a three-judge district court must be brought in D.C. In that case, it seems to me that Adam’s proposal is not actually that different from the pending bills at all. The procedural guidance he envisions is compatible with the existing legislation: to satisfy his criticism, the bills would only need to be tweaked slightly before passage.