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.
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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.
The Senate could then pass a resolution asking the president to alert the committee if a special counsel was being dismissed, and any failure to do so could be treated as a “profound breach of interbranch etiquette.” This would provide lawmakers with public leverage in the event of a dismissal without bringing in the judicial branch and raising questions over the separation of powers.
There are currently three committees across both chambers of Congress investigating Russian election meddling and possible ties between the Trump campaign and Moscow — the Senate Judicial Committee and the intelligence committees in both chambers. There has been little coordination between the committees, and their efforts have been at odds with each other at times, according to reports.
In a recent op-ed at The Hill, Asha Rangappa, a former special counterintelligence agent who worked under Mueller at the FBI, argued that Congress should create an independent, bipartisan commission to investigate Russian election interference in the tradition of the Church Committee and the 9/11 Commission.
Rangappa argues that the results of Mueller’s investigation that will be presented to Congress and the public may be limited to recommendations surrounding criminal indictments, not the full scope of Russian intelligence operations. That’s why Congress needs a powerful, centralized effort to understand the true depth of Russian meddling.
Whether Congress will push to protect Mueller and get to the bottom of Russian meddling may very well depend on how Mueller’s investigation and Trump’s boisterous presidency continue to unfold. Partisan politics aside, federal lawmakers do have options if they decide to move against Trump.