I highly respect special counsel Robert Mueller. He is a man of enormous integrity and should be allowed to finish his work. I deplore every attack the President has charged Mueller with. When the special counsel’s report is complete, you can believe what is in it. President Trump may call this process a witch hunt, but that is a lie. If the President fired Mueller, that would set off an absolute firestorm. At that point, Congress should look into obstruction of justice charges and impeachment.
Mueller’s team has indicted or received guilty pleas from 32 people and three companies. This group includes four former Trump advisers, 26 Russian nationals, three Russian companies, one California man, and one London-based lawyer. Six of these people, including four former Trump aides, have pleaded guilty.
I support Mueller and his work, but I do not support the Special Counsel Independence and Integrity Act. My opposition to the bill is not in principle to the theory of protecting Mueller, but the lack of constitutionality.
In the text, the bill simply requires the Justice Department to notify Congress if the special counsel was terminated. Senator Mike Lee, who opposed the bill Wednesday, cited Justice Antonin Scalia’s 1988 dissent in Morrison v. Olson on the role of Article II Section 2 of the Constitution. That dissent reinforced that power and control of all functions of the Executive Branch fall under presidential authority. The President is to oversee that laws are faithfully executed. The law also grants that the Justice Department falls under the Executive Branch, therefore the special counsel is under the authority of the chief executive.
If the Senate passed the bill, it’s highly unlikely the House of Representatives could. That would change in January when the Democrats take over. For hypothetical purposes, let’s say that Congress passed the bill then, do you really think the President would sign it?
The bill also lacks teeth that would protect the special counsel from the President. I read the entire bill, there is not one sentence that could legally stop the President from firing Mueller. It only states that the Attorney General should report to Congress on changes with the special counsel. Again the separation of powers comes to mind. That goes back to Senator’s Lee point yesterday.
The only way I could see Congress having grounds to stop Trump is with the appointment of acting Attorney General Matthew Whitaker. Whitaker’s appointment likely violates federal statutes and the Constitution. Therefore, any action Whitaker could take against Mueller may be consider unconstitutional because he has not been confirmed by the Senate.
That leaves us with what the bill is really about, politics. As NBC report Noah Rothman wrote this morning, “but this current debate is not really about the Constitution. It’s about politics, and the politics of this thing are as Machiavellian as they are morally ambiguous.”
Congress does have the right and responsibility to oversee the President and Executive Branch. This bill may provide a warning shot that President Trump should not fire Muller, but it cannot prevent it. The best way to prevent a constitutional crisis is to influence the President personally. As Rothman put, “Congress preserving its influence over the president remains the best way to prevent Trump from doing something reckless or stupid. That won’t please “The Resistance,” but it will keep the Republic intact.”