Bipartisan Senate effort: Operation Protect Mueller begins

Operation Protect Mueller seems like a noble effort, with, oh … just one or two fatal flaws. After competing versions of bills to make it nearly impossible to fire a special counsel circulated for several weeks, Senators of both parties finally came together on a combined version of legislation which will get introduced today. The intent is to head off Donald Trump from provoking a “constitutional crisis,” but …

A group of bipartisan senators is introducing new legislation to limit President Trump’s ability to fire Special Counsel Robert Mueller.

Sens. Cory Booker (D-N.J.). Lindsey Graham (R-S.C.), Chris Coons (D-Del.), and Thom Tillis (R-N.C.), will introduce the legislation, the Special Counsel Independence and Integrity Act, on Wednesday.

The legislation would let Mueller, or any other special counsel, receive an “expedited judicial review” within 10 days of being fired to determine if it was for a “good cause.” If it was determined it wasn’t, he would be reinstated.

It would also codify regulations that only a senior Justice Department official can fire a special counsel and that they must provide the reason in writing.

If one sees a president firing a special counsel as a constitutional crisis, then this may seem appropriate. However, the very existence of this bill belies that premise. The president has the right to hire and fire people within the executive branch of government without Congressional interference, especially high-ranking political appointees. Firing a special counsel is in itself not a constitutional crisis; it is the constitutional exercise of the authority of the presidency. The bill seeks to change that for one particular office, which is in itself a recognition of the president’s current authority.

One fatal flaw to this proposal is that it seeks to limit the authority of the same president who would need to sign the bill. Perhaps the sponsors of the SCIIA can muster two-thirds majorities in each chamber and eliminate the danger of a presidential veto, but it seems unlikely to even come up for a vote, let alone receive that kind of mandate:

“I haven’t seen clear indication yet that we needed to pass something to keep him from being removed, because I don’t think that’s going to happen,” said Senate Majority Leader Mitch McConnell (R-Ky.). McConnell did not elaborate on why he believed that.

Sen. John Cornyn (R-Tex.), his top deputy, said he also didn’t believe Mueller would be removed. Asked why, he replied: “I think the consequences of doing so are some that not even the president can anticipate. And I think it would be a mistake.”

Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) issued Trump a sharper warning. He said on Fox Business Network it would be “suicide for the president to want, to talk about firing Mueller.” The less the president said about it, Grassley noted, “the better off he would be, the stronger his presidency would be.”

Grassley squelched a similar effort last year, and so far hasn’t given an indication that he’s changed his mind. Republicans don’t appear to be jumping on a bandwagon to provide the special counsel office with de facto civil service protection in an attempt to prevent Mueller’s firing in this specific instance. And that kind of protection for an office that already largely exists outside of any real accountability is what’s really wrong with this idea.

Special counsels have inevitably proven to be disastrous to due process and accountability, which is why they should only be deployed when (a) a demonstrable crime has occurred, (b) explicit conflicts of interest prevent the Department of Justice from investigating them, and (c) stringent limitations are put on the scope of the probe. The issue with special counsels isn’t that they are too accountable, but are almost entirely unaccountable and grossly expansive by their nature. They exist mainly for political reasons, which means any attempts to enforce boundaries on their probes will generate accusations of politically motivated interference, and that means hardly any control at all is achieved. That leaves no effective check at all on a special counsel that strays far beyond his mandate (whether or not Mueller has is a matter of debate, of course) short of termination through the executive-branch chain of command.

This bill makes special counsels, now and in the future, even less accountable for their actions. If the report is true, it inserts both the judiciary and the legislature into the personnel decisions of the executive branch, which is itself a potential affront to the constitutional separation of powers. Congress’ upper chamber has a role in confirming political appointees that reflects the shared authority of many federal agencies, but they have no role in firing them other than through impeachment.

That is the proper remedy for a president that abuses his authority, too. If Trump fires Mueller and Congress perceives it to be an abuse of power and/or an obstruction of justice, they can impeach Trump and remove him from office. However, the better option all along would have been to form a select bipartisan committee under their own authority to investigate the Russia-collusion issue, one which Trump would have no authority to disband or to obstruct at all. Instead of passing the SCIIA, Congress should eliminate special counsels altogether, and bear the political costs of investigations themselves rather than hide behind special counsels.