The Mueller report must push Congress to protect future special counsels

First, Congress can and should make it clearer that a future special counsel can only be removed by the attorney general for “good cause.” That’s already the case under the existing Department of Justice regulation, but hard-wiring it into a statute would prevent a future attorney general from revoking that regulation, or from interpreting it to impose no meaningful constraint.

Second, to give real teeth to such a good cause requirement, Congress should provide a judicial mechanism for a special counsel to challenge his removal in cases in which he believes no such good cause exists. If it’s ultimately up to the federal courts, and not just the attorney general, we can expect a future attorney general to think twice before trying to remove a special counsel without a sufficiently compelling reason.

Third, to short-cut many of the concerns about political control of a future special counsel by temporary officeholders, Congress should clarify that, in cases in which the office of the attorney general is vacant or the attorney general is recused, the special counsel is to be supervised by the next-senior Senate-confirmed appointee within the Justice Department. Indeed, given the Matthew Whitaker saga, Congress may want more generally to revisit the order of succession within the Department of Justice — and whether the president really does have the power to depart from the Justice Department-specific statute to name an acting attorney general.