Is the Senate Bill to Protect Mueller Constitutional?

Legislation to protect Special Counsel Robert Mueller has been hailed as a ray of bipartisan sunshine in a divided Congress. The only problem is that even if it could pass both chambers with a veto-proof majority, there may not be enough votes on the Supreme Court to save it from President Trump’s opposition.

The Special Counsel Independence and Integrity Act, sponsored by Republican Senators Thom Tillis and Lindsey Graham and Democratic Senators Chris Coons and Cory Booker, would make federal law of Justice Department regulations stating that the special counsel can only be fired for “good cause.” It would also require the Justice Department to preserve evidence from the investigation into Russian interference in the 2016 election, as well as allow Mueller to challenge his dismissal in court. Senate Judiciary Committee Chairman Chuck Grassley has said he will bring the bill up for a vote this week.

The bill’s goals sound relatively modest, as it doesn’t expressly bar the president from firing Mueller. But there’s a robust debate among legal scholars across the political spectrum as to whether the bill nevertheless goes too far. Some argue it would unconstitutionally infringe on the president’s authority to fire executive-branch officials, while others say there’s precedent for restrictions. The debate goes to the heart of not just the Mueller legislation, but of questions about the limits of presidential power—questions that have become ever more resonant in an era where the president frequently threatens his critics with prosecution.

Paul Rosenzweig, who served as an attorney for Kenneth Starr’s investigation of the Clinton administration, is among those who believe there is some precedent for the special-counsel bill: The heads of independent agencies, like the Federal Election Commission, for example, can only be fired for cause. However, even he acknowledged the Mueller bill—which combines several pieces of similar legislation—might not be airtight. “I think the bills are constitutional, but it is certainly arguable,” Rosenzweig said.

Constitutional interpretation is not simply a matter of which side has the more persuasive argument or the nobler intentions. Realistically, the bill’s constitutionality, and thus its survival, comes down to votes—and not just those in Congress. Akhil Reed Amar, a constitutional scholar at Yale University, is among those who say Congress can’t limit the president’s firing power, because the Constitution vests all executive authority in the president. Mueller and other federal prosecutors are “inferior officers” under the Constitution, and therefore can be dismissed by a “superior” officer.

Other experts point out that the Constitution does not explicitly give the president power to determine who gets prosecuted. “Presidents can set criminal-justice policy, but—except perhaps in cases with foreign-policy implications—the president does not have constitutional authority to direct a federal prosecutor to initiate or dismiss criminal charges, or to direct how to conduct a particular grand-jury investigation or criminal prosecution,” said Bruce Green, a law professor at Fordham University and a legal-ethics expert who recently co-authored a paper on prosecutorial independence. “Prosecutorial independence is a cherished value in our democracy. Prosecutors are supposed to make decisions based on criminal-justice principles, not partisan politics.”

Whether or not one agrees with Amar’s argument, there may be enough votes on the Supreme Court for it to carry the day. The reason why, according to Amar, is that much of the high court has already endorsed precedents that suggest Trump would prevail in any legal conflict over his authority to fire the special counsel.

Amar points to two cases to support his argument: Morrison v. Olson in 1988 and Myers v. United States in 1925. The Morrison case upheld the 1978 Independent Counsel Act, passed in the wake of Richard Nixon ordering the Saturday Night Massacre, which created a special executive-branch position that could be used to investigate malfeasance by high-ranking federal officials and whose occupant could not be fired by the president without cause. While this outcome would, at first blush, seem to support the Mueller bill, a number of liberal legal scholars have endorsed the late Justice Antonin Scalia’s dissent in Morrison, in which he argued the law usurps presidential power. As recently as 2015, sitting Justice Elena Kagan called it “one of the greatest dissents ever written and every year it gets better.” The Independent Counsel Act was eventually allowed to sunset after the Iran-Contra and Whitewater investigations, with both parties having felt subject to partisan crusades by unaccountable prosecutors.

Meanwhile, Myers suggests conservative justices would support Trump. The majority opinion in that case—authored by the chief justice and former president William Howard Taft—concluded that the president can fire executive-branch officials without congressional consent. Amar notes that Myers’s reasoning was recently cited in the majority opinion in a 2010 case, Free Enterprise Fund v. Public Company Accounting Oversight Board. “The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so,” Chief Justice John Roberts, who was joined by his fellow conservatives, wrote. “That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties.” Since 2010, the high court has retained its executive-power-friendly conservative majority, and its Democratic appointees may have lost a dissenting vote: John Paul Stevens, one of the dissenters in Free Enterprise Fund, was replaced by Kagan.

Not everyone agrees that those rulings are predictive of the justices’s take on the Mueller bill. “I think it is a mistake to assume that views Supreme Court justices express in the abstract necessarily predict what they will do when confronted with the facts of a particular case,” said Deborah Pearlstein, a constitutional-law scholar at Princeton University. “A great many lawyers in this country, on the right and the left, read the papers every day and are deeply concerned that the special-counsel process be allowed to continue, in order to uphold the principle that no one, not even the president, is above the law. The justices read the papers, too.”

Pearlstein also noted that Morrison hasn’t been overturned. “Whatever criticisms might have rightly been levied against the now-lapsed independent-counsel statute that the Morrison case upheld, the proposed bills currently under consideration are crafted carefully to avoid making the same mistakes,” she added.

The legislation still has a long way to go before hypothetically reaching the Supreme Court. First, it has to get out of the Senate: Majority Leader Mitch McConnell has vowed not to bring the bill to the floor, despite Grassley’s pledge to move it forward in committee. And Trump may yet decide that replaying the Saturday Night Massacre is too great a political risk. As Rosenzweig has written, given the layers of bureaucracy at the Justice Department, firing Mueller or the official overseeing him—Deputy Attorney General Rod Rosenstein—still might fail to end the Trump-related investigations. Mere discussion of the Mueller bill in Congress might also convince the president that the legislature could turn on him if he tries to fire the special counsel.

“Legally, it is not necessary,” Rosenzweig said, referring to the Mueller bill. “Its main value is political and demonstrative.”

Without the bill in place, however, the only hope for an immediate, robust response to Mueller’s dismissal would be Congress aggressively using its oversight power to investigate the White House. With Republicans in control of both chambers, that seems unlikely. The bipartisan appeal of the Mueller bill in the upper chamber may be precisely that it prevents Congress from having to do its job.