Congress Has Options for Protecting Mueller’s Investigation From Trump’s Wrath

by Mike Ludwig, Truthout | Report –

Congress has options for protecting Robert Mueller and his special counsel investigation into the Trump campaign and Russian election interference, even if bipartisan legislation designed to prevent Mueller from being fired by the Trump administration fails to become law or is struck down by the courts.

At a Senate Judiciary Committee hearing on Tuesday, September 26, a panel of constitutional scholars gave differing opinions on whether two bills that would require a judicial review of a Justice Department decision to sack Mueller or any other special counsel would survive legal challenges, if Congress manages to pass them in the first place.

Lawmakers introduced the bills in August after Trump unleashed angry tweets and other comments that left pundits wondering if the president would order the Justice Department to oust Mueller, just as the president fired former FBI Director James Comey. Trump has since said that he wouldn’t dismiss Mueller, although observers say the unpredictable president may change his mind once the investigation gets closer to him, his family and his business empire.

Trump can’t fire Mueller himself, but he could order Deputy Attorney General Rod Rosenstein — or the acting head of the Justice Department, should Rosenstein resign — to fire Mueller. Both the attorney general and the deputy attorney general resigned after President Nixon made orders to fire the special prosecutor investigating the Watergate scandal in 1973.

Republican Sen. Lindsay Graham and several Democrats introduced the first bill aimed at protecting Mueller, which would require the attorney general — or a deputy in this case, since Jeff Sessions has recused himself from the investigation — to petition a three-judge panel for permission before firing a special counsel. The other bill would allow a special counsel to petition a court to review their dismissal within two weeks and decide whether it’s legitimate. In both cases, an appeal would go to the Supreme Court.

On constitutional questions over the separation of powers between branches of government, the scholars testifying before the committee raised more concerns about Graham’s bill because it requires an unprecedented judicial review of an executive branch action that would leave the legislation open to legal challenges.

Akhil Reed Amar, a professor of law and political science at Yale University and an open critic of Trump, argued that both bills are “constitutional nonstarters.” Other experts disagreed, saying the bills indeed pass constitutional muster and would shore up legal questions surrounding special counsels that trace their roots back to Congress’s response to Watergate and various scandals of the 1980s and 1990s.

Either bill would need enough votes to overcome Trump loyalists in the House and a presidential veto in the Senate before a court could rule on its constitutionality, a process that may tie their fate to Trump’s job performance and whether Mueller’s investigation brings any scandalous revelations into public view. In the meantime, experts say Congress has other options.

In his testimony, John Duffy, a law professor at the University of Virginia, suggested Congress pass legislation that would delay an order to remove the special counsel by a couple of weeks while temporarily suspending the counsel’s authority. That would give the special counsel time to challenge the removal order in court and receive injunctive relief if the judges found reason to hear the case.

Reed Amar presented another idea. Despite his constitutional critiques of the bills, he was encouraged by their bipartisan nature and called on the Senate to instead revise its committee structure to create a powerful and bipartisan “standing committee on residential oversight.” An equal number of seats would be guaranteed to each party to ensure fair oversight regardless of who controls the White House.

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Reprinted with permission from Truthout