Fourteen votes in favor of the Special Counsel Independence and Integrity Act, seven against. The yays: All 10 Democrats on the committee plus Chuck Grassley, Lindsey Graham, Thom Tillis, and Trump’s old buddy Jeff Flake. The nays: Orrin Hatch, John Cornyn, Mike Crapo, John Kennedy, and the very conservative triumvirate of Ted Cruz, Mike Lee, and Ben Sasse.
Why are Trump-haters like Sasse and Lee giving him a free hand in firing Mueller? Because, Lee explained in an op-ed a few days ago, the bill is plainly unconstitutional. It would give Mueller the right to challenge any decision to fire him in federal court in D.C., with a panel of three judges empowered to decide if his firing had been for “good cause.” If the judges decide that it wasn’t, he’s back on the job. Sorry, POTUS! The Constitution doesn’t work that way, notes Lee:
Because the power to prosecute is the quintessential executive authority, any congressional attempt to direct prosecutions — including by limiting the president’s power to fire a prosecutor — is an unconstitutional breach in the separation of powers. All senators swear to uphold the Constitution, and I hope that the full Senate will not pass this legislation, if it advances out of committee…
Some may question how legislation meant to hold the president accountable is a danger to liberty. It’s because it would empower the creation of unaccountable federal prosecutors who could not be fired for acting unjustly or unwisely. In 1940, then-Attorney General Robert Jackson said “the prosecutor has more control over life, liberty and reputation than any other person in America.”
Orrin Hatch wrote his own op-ed along the same lines, saying he’d support a Senate resolution expressing support for Mueller and calling on the president to let him finish investigating but not legislation that would seek to limit Trump’s Article II prerogatives, which Congress has no power to do via simple statute. Scalia’s famous dissent 30 years ago in Morrison v. Olson is the template. The goal is accountability: If the special counsel can’t be fired unless the president and the courts agree on “good cause” then he’s directly accountable to no one, a constitutional aberration.
Although there are, of course, counterarguments:
Paul Rosenzweig, who served as an attorney for Kenneth Starr’s investigation of the Clinton administration, is among those who believe there is some precedent for the special-counsel bill: The heads of independent agencies, like the Federal Election Commission, for example, can only be fired for cause…
Other experts point out that the Constitution does not explicitly give the president power to determine who gets prosecuted. “Presidents can set criminal-justice policy, but—except perhaps in cases with foreign-policy implications—the president does not have constitutional authority to direct a federal prosecutor to initiate or dismiss criminal charges, or to direct how to conduct a particular grand-jury investigation or criminal prosecution,” said Bruce Green, a law professor at Fordham University and a legal-ethics expert who recently co-authored a paper on prosecutorial independence. “Prosecutorial independence is a cherished value in our democracy. Prosecutors are supposed to make decisions based on criminal-justice principles, not partisan politics.”
One might also note that the DOJ is a creation of Congress, per the Judiciary Act of 1789. If the department is a creature of the legislature, although commanded by the president, can the legislature slap some restrictions on the president’s power to command it? If unaccountability is the chief worry, could Congress claim for itself the right to fire the special counsel? That would create a new problem, of course — instead of the special counsel having to worry about running afoul of the party in charge of the White House, he’d have to worry about running afoul of the party in charge of Congress.
In theory there’s no downside to the Lee/Hatch strict separation-of-powers approach. Sure, the president could fire the special counsel without cause to obstruct an investigation into the president and his political cronies, but there are powerful deterrents to doing that. He’d be impeached and removed from office! Or the voters would punish him in the next election for his corruption by voting him out. In a world governed by the sort of civic virtue that drove the Founders, it all works out. In the garbage world we actually live in, in which civic virtue has been replaced by tribes, it makes no sense. Trump certainly wouldn’t be removed from office by a Republican Congress and probably not even by a Democratic one given the two-thirds bar needed for removal in the Senate. And although his job approval would take a hit if he canned Mueller, the old familiar arguments about the importance of ensuring a conservative Supreme Court, protecting the Second Amendment, etc, would return by 2020 to make him competitive. In fact, if this were Trump’s second term, the threat of a reckoning with voters would be moot because he’d be unable to run again. Presidential term limits, although a welcome change to the Constitution, have undermined some of the document’s deterrents to bad presidential behavior.
In light of all that, the spin on today’s committee vote — it supposedly “sent a message to Trump” not to fire Mueller, or else — plays like a joke. “Or else” what? If Trump canned him, Republican voters would rally to his side. The House would dissolve into paralysis, knowing that impeaching him would outrage the GOP base and not impeaching him would outrage everyone else. Schumer would somehow need to find no fewer than 18 Republican votes for removal in the Senate, doubtless over ferocious opposition from McConnell. (McConnell is so nervous about this issue’s potential to divide the party that he won’t even bring a bill like the one that passed committee today to the floor.) And Schumer, for his own petty tribalistic reasons, might not want to remove Trump. From a selfish Democratic perspective, who are you better off running against in 2020? A damaged centrist like POTUS, who might be prepared to compromise with a Democratic Congress even if he wins reelection, or a right-wing ideologue like Pence who’d have two years to put the Mueller episode behind the party and gear up for 2020? There’s no “message” being sent to Trump in today’s action except that a few Republicans would be willing to vote against him in a showdown with Mueller. But not enough, and I’m sure he knows it.