It wasn’t going to go anywhere anyway, but it now appears the bill to grant the special counsel civil-service protections won’t even launch. Senate Majority Leader Mitch McConnell put the kibosh on a bill with bipartisan support to protect Robert Mueller by making it nearly impossible to dismiss him:
The Senate’s top Republican appeared Tuesday to quash new momentum behind a bill giving special counsels such as Robert S. Mueller III legal recourse if they are fired, telling Fox News that he would refuse to put it to a floor vote.
“I’m the one who decides what we take to the floor. That is my responsibility as the majority leader. And we’ll not be having this on the floor of the Senate,” Sen. Mitch McConnell (R-Ky.) said Tuesday.
McConnell’s statement comes barely a week after Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said the panel would take up and vote on the measure during a business meeting April 26. For months, Grassley had refused to weigh in on legislation to protect a special counsel from being fired without cause, insisting that the committee would consider only one such bill, if it took up any at all.
Putting Mueller aside for a moment, the problem with special counsels is not that they have too much accountability. It’s that they have almost none at all. Organizationally they report to the Department of Justice, and in the unitary-executive model, that means the chain of command runs all the way to the president. However, special counsels only exist in highly charged political environments, usually as a result of a real or perceived scandal involving the president or a high-ranking official in the executive branch. In those political terms, once a special counsel gets appointed, any attempt to impose limits on scope or mission will inherently get criticized as an attempt to protect the subject and/or target of an investigation, which allows special counsels almost carte blanche to create an entire shadow Department of Justice for their own purposes.
That’s not theoretical, either. In almost every instance in which they’ve been appointed, special counsels (under various names) have gone off the rails and ended up mainly prosecuting process crimes rather than the central focus of their probes. Scooter Libby didn’t leak Valerie Plame’s identity to Robert Novak, but he’s the only person who got prosecuted by Patrick Fitzgerald. Whitewater, Travelgate, you name it — the main focuses of those probes skated entirely, and special counsels only racked up collateral damage related to their own investigation, not previous crimes.
Let’s bring Mueller back into the equation for a thought experiment. Is there any cause for which Donald Trump’s opponents would grant that firing Mueller would be justified? Any at all? If the answer is no, then Mueller doesn’t need protection. It means that the office of special counsel needs to be eliminated, regardless of Mueller’s considerable personal integrity. The rule of law does not include untethered prosecutors-at-large looking for crimes to charge.
Trump wouldn’t have signed the bill, and it’s likely that it never would have made it out of the House anyway. Trump’s stuck with Mueller, and he appears to have realized it by now. But we should make sure that Mueller is the last special counsel that afflicts us, not turn the position into a civil-service job.