Whether you believe Special Counsel Robert Mueller’s job is in danger or not, the country’s need for an insurance policy to protect the independence of special counsel investigations has become apparent.
On Thursday, the Senate Judiciary Committee approved such a measure with its 14-7 passage of the “Special Counsel Independence and Integrity Act.” It’s now time for the rest of Congress to get behind this bill so that we can avoid the ongoing uncertainty and distraction created by fear of a potential constitutional crisis if the president fires Mueller — or if any future president tries to block a similar investigation of himself.
The vital components of the legislation state that a special counsel can only be removed for good cause, and provide a small window for him or her to challenge their removal in federal court. At the urging of Judiciary Committee Chairman Chuck Grassley, the bill also asserts Congress’s authority to oversee the executive branch, creating important but limited reporting requirements by any special counsel to Congress.
The bill not only has the backing of several Republican and Democratic members of the Senate Judiciary Committee, but a groundswell of support for the bill has come from over three dozen former GOP members of Congress and Republican-appointed former judges and prosecutors, and from other Republican officials across the country.
The bill passed the committee hurdle despite a civil but rather misleading debate about its constitutionality. The law is pretty well-settled on whether limits may be placed on the removal of a special counsel, as law professors Steve Vladeck and Eric Posner explained in a recent letter. In 1988, the U.S. Supreme Court held 7-1 in Morrison v. Olson that creation of an “independent counsel” within the Department of Justice — who could be fired by the attorney general for cause and who has limited, temporary duties — does not violate the Constitution’s Appointments Clause. Article II gives the president exclusive power to appoint principal officers of the government, with the advice and consent of the Senate. But it also authorizes Congress to “vest the Appointment of … inferior Officers … in the Heads of Departments.” Under Morrison, the independent counsel was one such inferior officer. And the court’s several precedents governing the question — stare decisis in legal parlance — make clear that Morrison and subsequent cases still apply.
Concerningly, there were several committee members who voted against the bill because they don’t like Morrison, and would prefer that Justice Antonin Scalia’s lone dissent in the case be the law of land, permitting the president to fire officials like the special counsel at will. (“Scalia decisis,” as Senator Dick Durbin, D-Ill., quipped at the hearing.) Senator Mike Lee, R-Utah, even expressed a view that Justice Elena Kagan would support revisiting the question, given her past statement that Scalia’s Morrison opinion is “one of the greatest dissents ever written and every year it gets better.” Absent from this argument, however, is the fact that Kagan has prominently supported limiting direct presidential control specifically in instances like the one here, presciently warning that interference by “the crassest forms of politics (involving, at the extreme, personal favors and vendettas)” pose the “greatest danger” to independence of prosecutions.
And while there’s little evidence to show that the Supreme Court would overturn Morrison, there’s even less evidence that this bill would be an appropriate vehicle through which to do so. When the independent counsel provisions expired in 1999, the special counsel process that took its place gave the attorney general far greater control over the position, including its appointment, jurisdiction, and powers. In short, few of the same constitutional concerns raised by Justice Scalia’s one-man dissent apply to the special counsel bill presently under consideration. The remote chance that the Supreme Court may reverse itself, overturning a 7-1 decision issued just three decades ago (a short life span, by Supreme Court standards), seems a rather far-fetched rationale to oppose the legislation.
Despite the firm legal footing of the bill, the outpouring of bipartisan support, and the evidence that the president may not live up to his word and fire Mueller, Senate Majority Leader Mitch McConnell, R-Ky., said that he would not permit the full Senate to vote on the bill. The majority leader continues to be convinced that the president will not remove Mueller. He may be overconfident of this, considering the recent report that Trump wanted to shut down the investigation last June and in December, despite public assurances at the time that he had no intent to do so.
While McConnell is the leader of the Senate, he is only one person in a rather fractious party among 99 other senators. Lawmakers have plenty of procedural mechanisms and leverage points at their disposal to insist on a floor vote on the bill.
A vote on the special counsel bill would signal to this president — and future ones — that attempts to interfere with independent investigations will not be abided by a co-equal branch of government. Lawmakers can keep saying they don’t think this bill is necessary. I hope they’re right. But even if it isn’t necessary now, there will always be value in insulating investigations from political influence. Why not buy some insurance just in case?
Sarah Turberville is director of The Constitution Project at the Project on Government Oversight.
