May 17 marks the one-year anniversary of Robert Mueller’s appointment as special counsel. As the date nears, there’s been an increasing amount of chatter surrounding the possibility that President Trump might fire him. Trump’s new lawyer Rudy Giuliani said on Fox News Wednesday night that Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein “should order the investigation over.”
Meanwhile, on Capitol Hill, the Senate Judiciary Committee passed a bill last week, with the votes of four Republicans and 10 Democrats, aimed at protecting Mueller’s investigation. But Senate majority leader Mitch McConnell said the bill wouldn’t get a vote on the floor. And even some conservatives who haven’t been afraid to criticize President Trump, like Nebraska senator Ben Sasse, voted against the Judiciary Committee bill over concerns that it would create an unconstitutional “fourth branch of government.”
Sasse said in a statement that if Mueller were fired, Congress will “ensure that the investigation is completed.” But how exactly would that work? Could Congress simply hire Mueller and his team and subpoena the existing interviews they’ve conducted and other information they’ve uncovered?
In a statement to THE WEEKLY STANDARD, Sasse spokesman James Wegmann didn’t provide detailed answers to those questions but said: “Senator Sasse has explored multiple options to ensure that, if the President tries to deep-six the Special Counsel, the Russia investigation can be sustained and completed under Congress’ constitutional authority. We’ve considered a wide range of options that respect the constitution’s separation of powers–those options include using advice and consent power, funding power, subpoena power, and oversight authority.”
While Sasse expresses confidence the investigation could be continued by Congress without much of a hiccup, it’s not clear continuing the investigation would be that easy after Mueller has been fired. “If Mueller were fired, he’d not be in a position to transfer anything,” says Adam White, a legal scholar at the Hoover Institution.
White points to a section of the existing law governing special counsel investigations, which states: “The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.”
Utah senator Mike Lee is another conservative Republican who opposed the Mueller protection legislation that passed the Senate Judiciary Committee last week. Lee spokesman Conn Carroll told TWS: “[I]f Trump fired Mueller, whoever was the top official left at DOJ could just appoint a new special counsel. Or they could transfer the case to a US Attorney. Either way it would still be an ongoing investigation so it would be premature for Congress to start asking for evidence he has collected.” Carroll said that “if DOJ officially closed the investigation, then yes Congress could get that information.”
The Hoover Institution’s White said that while it’s possible Congress could subpoena the information once the investigation were officially closed, the Department of Justice might still “refuse to disclose files, by invoking national security interests or other issues.”
If Congress can’t simply scoop up Mueller, his team, and their existing files, that would leave them with only one recourse to Mueller’s firing: impeachment and conviction—something several senators have hinted at. But would congressional Republicans, so timid and deferential toward Trump to date, really take such a bold and dramatic action?
