Constitutional Law

Senate Judiciary Committee approves bill to protect special counsel; is it constitutional?

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Special counsel Robert Mueller.

The Senate Judiciary Committee on Thursday approved a bipartisan bill to protect the special counsel from firing.

Four Republicans joined Democrats to advance the bill, report USA Today, the Hill, the New York Times and the Washington Post.

The bill has little chance of making it into law, according to the Washington Post. Senate Majority Leader Mitch McConnell, a Kentucky Republican, opposes the bill. And if it did win lawmakers’ approval, President Donald Trump would likely veto the bill.

Senate Minority Leader Chuck Schumer of New York urged McConnell to bring the bill for a vote and pointed to a statement Thursday by Trump on Fox and Friends. Trump said he “won’t be involved” in the Russia investigation, but “I may change my mind at some point.”

There also are constitutional concerns about the bill, known as the Special Counsel Independence and Integrity Act. The bill says a special counsel may be fired only by the attorney general, and only for good cause, according to the New York Times description. After a firing, the special counsel would have 10 days to seek an expedited review of his dismissal. A panel of judges could then block Special Counsel Robert Mueller’s removal if it is not for good cause. Special counsel documents and investigative materials would have to be preserved while the review is pending.

Some senators voted against the bill because they thought it was an unconstitutional infringement on executive branch power. Although the bill doesn’t expressly bar the president from firing the special counsel, “There’s a robust debate among legal scholars across the political spectrum as to whether the bill nevertheless goes too far,” the Atlantic reports.

Yale law professor Akhil Reed Amar is among the scholars who argue Congress can’t limit the president’s ability to fire because all executive authority is vested in the president. Mueller is an “inferior officer” under the Constitution who can be dismissed by a superior officer, he argues.

On the other side is Fordham law professor Bruce Green, who says presidents can set criminal justice policy, but generally they don’t have constitutional authority to direct a prosecution.

An important case is Morrison v. Olson, the 1988 Supreme Court decision that upheld the Independent Counsel Act, which has since been allowed to sunset. “While this outcome would, at first blush, seem to support the Mueller bill,” the Atlantic reports, “a number of liberal legal scholars have endorsed the late Justice Antonin Scalia’s dissent in Morrison, in which he argued the law usurps presidential power.”

In a letter to the Senate Judiciary Committee, University of Chicago law professor Eric Posner and University of Texas law professor Stephen Vladeck say “Morrison is still good law. 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.”

Posner had called for legislative protection for the special counsel in a Feb. 4 op-ed for the New York Times.

Paragraph describing the bill updated at 2:40 p.m.

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