To protect against this very possibility, two bills were introduced last year in the House and Senate — the Special Counsel Independence Protection Act and the Special Counsel Integrity Act. Although they differ in some of their particulars, both have at their core a relatively straightforward idea: If a special counsel is fired and disputes the reasons for his termination, he can challenge them in court. Independent federal judges, rather than senior political appointees in the Justice Department, would get the last word on whether good cause for firing the special counsel did, in fact, exist.
The bills don’t change the procedural or substantive rules governing the special counsel’s authority, or the grounds on which he can be fired; they simply ensure a role for the courts in reviewing any dismissal to make sure it’s done for the right reasons and not the wrong ones. Indeed, the modesty of the bills is why, as University of Chicago law professor Eric Posner and I testified at a Senate Judiciary Committee hearing on the draft legislation in September, they don’t raise any serious constitutional concerns (especially while the Supreme Court’s 1988 decision upholding the independent counsel statute remains on the books). It may also be why these bills not only have bipartisan support, but why the Senate versions are co-sponsored by Sens. Lindsey O. Graham (R-S.C.) and Thom Tillis (R-N.C.), respectively — hardly the most ardent critics of Trump within the Republican caucus. Graham, in fact, has been one of Trump’s most loyal defenders recently, even though his name is on the legislation designed to be a fail-safe protection from the president’s impulses.