More importantly, the two proposed bills would achieve little in terms of real protection. The proposals by Sens. Coons, Thom Tillis (R-N.C.), Lindsey Graham (R-S.C.) and Cory Booker (D-N.J.) would allow any decision to fire Mueller to be brought before a three-judge panel in federal courts. Currently, a decision to fire Mueller is essentially non-reviewable. However, the bills would not change the governing Justice Department regulations on the basis for terminating a special counsel. The attorney general can remove Mueller “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies.”

Thus, a court could not overturn a decision for which the attorney general can state a rational basis for any of the listed failures but also any demonstration of “other good cause, including violation of departmental policies.” Since those policies are implemented and maintained by the attorney general, it would seem a rather low bar to satisfy. Indeed, courts are loathe to question executive branch decisions on policies governing the conduct of its “inferior officers.”