Senate to take up the You-Can't-Fire-Mueller Act?

Like much of what transpires in Congress, this effort to protect Robert Mueller might be a solution in search of a problem. Senators Thom Tillis and Chris Coons will introduce a bill today that Lindsey Graham first proposed, a law that reduces the power of the executive branch to dismiss a special counsel. It’s clearly intended to head off Donald Trump before he can remove Mueller, but is that in play any longer?


Two members of the Senate Judiciary Committee are moving to protect Special Counsel Robert Mueller’s job, putting forth legislation that aims to ensure the integrity of current and future independent investigations.

Republican Sen. Thom Tillis of North Carolina and Democratic Sen. Chris Coons of Delaware plan to introduce the legislation Thursday. The bill would allow any special counsel for the Department of Justice to challenge his or her removal in court, with a review by a three-judge panel within 14 days of the challenge.

The bill would be retroactive to May 17, 2017 – the day Mueller was appointed by Deputy Attorney General Rod Rosenstein to investigate Russian meddling in the 2016 election and possible ties to Donald Trump’s campaign.

Graham and Cory Booker are working on a competing bill, according to the WSJ:

A senior Republican senator said Thursday he is crafting legislation to protect the independence of the special counsel investigation into Russian activity during the 2016 election, a response to President Donald Trump’s criticism of the probe, which he has called a “witch hunt.”

Sen. Lindsey Graham (R., S.C.) told reporters Thursday that he will introduce a bill next week that would curtail the power of the president to fire a special counsel under some circumstances without approval from a federal judge. …

“We need a check and balance here,” said Mr. Graham, who as a member of the House of Representatives in the 1990s helped manage impeachment proceedings against Bill Clinton over perjury and obstruction of justice allegations.


Presumably, the two bills would eventually merge into one unified approach. It demonstrates that there is considerable bipartisan sentiment for limiting Trump’s range of action. It doesn’t indicate, however, that Trump is considering action any longer on this front.

Attorney General Jeff Sessions recused himself from any involvement in the Russia probe, and despite more than a week of public humiliation from Trump, has refused to reverse the recusal or to quit. That leaves Rod Rosenstein as the only official with direct authority to dismiss Mueller, but Trump could fire Rosenstein if the deputy AG refused to fire the special counsel too, and then appoint someone else to do it.  Graham first proposed writing this law in the middle of Trump’s bizarre public rants about Sessions, worried that Trump would hound Sessions out of the job and find an acting AG who would fire Mueller and shut down the probe that Trump has repeatedly called a “witch hunt.”

That crisis seems to have passed, however. New White House chief of staff John Kelly has put an end to that campaign, according to the Associated Press, assuring Sessions that Trump wants him to stick around:

New White House chief of staff John Kelly, in one of his first acts in his new post, called Attorney General Jeff Sessions to reassure him that his position was safe despite the recent onslaught of criticism he has taken from President Donald Trump.

Kelly called Sessions on Saturday to stress that the White House was supportive of his work and wanted him to continue his job, according to two people familiar with the call. The people demanded anonymity because they were not authorized to speak publicly about a private conversation. Kelly, who was appointed to the post the day before, described the president as still miffed at Sessions but did not plan to fire him or hope he would resign.

The recent signals from Trump and the White House have been much more conciliatory toward Sessions:


Instead, the White House has recently embraced some of Sessions’ directives. On Friday, Trump traveled to Long Island, New York, to tout his administration’s efforts to combat the MS-13 gang at the same time Sessions was in El Salvador for events concerning the same violent cartel. Though Trump did not mention Sessions by name, the attorney general told The Associated Press that he hoped to remain in the post and would serve as long as Trump wanted him.

And on Wednesday, senior White House aide Stephen Miller — a former Sessions staffer who has written most of Trump’s speeches on immigration — delivered a full-throated case for slashing legal immigration. The proposal is unlikely to become law since it is opposed by several Republican senators, yet it is popular among much of the president’s base.

Getting rid of Mueller was always dependent on getting Sessions out of the way. If Sessions sticks around, so will his recusal, which means Rosenstein sticks around to run Mueller. It would appear that Trump has thrown in the towel on Mueller’s probe, even if his allies continue to raise questions about the political alignment of his team of investigators, and allege conflicts of interest due to Mueller’s friendship with material witness and former FBI director James Comey. The pressing and acute need for this bill may have already faded.

That doesn’t mean the legislation has no value, however. If we are to appoint special counsels in the future — which is almost always a bad idea, but not always the worst option — then we need to buffer them from political interference while providing accountability too. Involving the judiciary as a check on this process would make some sense, but it should also include the ability of the executive to resort to judicial review for complaints about political biases and conflicts of interest too short of termination. Let’s work out all of the bugs now, and make all of the fixes retroactive.


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