NBC: Congress working up "Plan B" for Mueller defense

Plan A, or Operation Protect Mueller, hasn’t panned out well. Although the Senate Judiciary Committee passed a bill on a 14-7 vote that would in essence turn the special counsel position into a civil-service job, Mitch McConnell refuses to bring it to the Senate floor. Not only will Trump not sign it, McConnell argues, the House won’t bother to vote on it, much less pass it, and it’s unconstitutional to boot.

Hence, as NBC reports, Plan B:

If Congress can’t protect special counsel Robert Mueller’s job, perhaps it can protect his work.

That’s the thinking among several lawmakers on Capitol Hill, who are discussing ways to safeguard the special counsel’s investigation into possible ties between the Trump 2016 campaign and Russia amid President Donald Trump’s escalating attacks. …

According to three people briefed on the discussions, ideas include: Requiring that Congress receive Mueller’s final report; allowing Mueller, in the event he is fired, to release his findings publicly; or allowing him to resign and release his work if he feels his investigation is being improperly stifled.

The effort builds on one Republican-sponsored provision included in the original bill, the so-called Special Counsel Independence and Integrity Act, a compromise measure from Republican Sens. Lindsey Graham of South Carolina and Thom Tillis of North Carolina and Democrats Chris Coons of Delaware and Cory Booker of New Jersey.

At least Plan B has fewer constitutional issues than Plan A. The president has plenary authority to terminate executive branch appointees, and doesn’t need to show cause. As I pointed out more than once, the problem with special counsels is a lack of accountability, not an overabundance of it. Attempting to removing even more accountability makes the problem worse, even if one believes that any specific special counsel might have enough integrity to avoid the necessity of oversight.

This effort falls better into Congress’ legitimate oversight role over the executive branch. The special counsel exists as a function within the Department of Justice, and Congress can require the DoJ to turn over its internal materials, subpoenaing them if necessary. That makes this bill a bit redundant, as Congress could simply subpoena the Mueller report or his work in progress after a firing as it is. Redundancy isn’t a constitutional defect, though, nor an inordinate power grab.

However, this still dances all around the core problem, which is that Mueller’s doing the job that Congress should have been doing all along. The special counsel was unnecessary in two different ways. First, there was not a specific crime alleged, and even if a conflict existed in pursuing an investigation of a crime, there shouldn’t have been a special counsel appointed until a specific crime could be established — and not just a process crime, such as obstruction due to false statements by peripheral characters. Second, Congress has the constitutional authority and duty to provide oversight over the executive, and the proper remedy to high crimes and misdemeanors uncovered in those probes is either impeachment and removal or censure — not a grand jury.

That’s water under the bridge, though, so we’re left with Plan B. Could it pass both the House and Senate? Probably, assuming McConnell and Paul Ryan allow it to come to a vote on their respective floors, but Donald Trump is still likely to veto it. If Congress wants to move the probe outside of Trump’s purview, then they should do their jobs rather than demand that the DoJ outsource it to unaccountable roving prosecutors.

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David Strom 12:31 PM on December 01, 2022