Can Congress keep Robert Mueller from being fired?

New bills introduced last week could protect the special counsel from a presidential pink slip, and may signal a tipping point for Capitol Hill's patience. 

Does Robert Mueller need congressional protection? Some lawmakers think he might. So they’re proposing to provide Mr. Mueller, the special counsel in the Russian election tampering investigation, with legislative armor meant to prevent the White House from firing him unless it has a really good reason.

Senators introduced two bills last week intended to block an unwarranted Mueller dismissal. Both would etch in law the principle that Department of Justice special counsels can’t be ousted just because the president feels like it. Both would establish a panel of federal judges empowered to determine whether a special counsel firing was legal.

These bills may, or may not, be constitutional. After all, they’re an example of the legislative branch poking around in executive branch personnel matters. They may, or may not, pass. Any such legislation would presumably have to attract a large veto-proof majority.

But they’re perhaps an important development in the increasingly tense relationship between President Trump and GOP lawmakers, and Capitol Hill at large. Even many Republican members of Congress are growing restive about Mr. Trump’s impulsive tweets and threats and breaking of political norms. White House leaks indicate Mr. Trump has talked about firing Mueller. The bills are Congress’s way of warning that such a move could have dire consequences.

“The legislation is meant to be a deterrent – if successful, it would not actually have to be used because the special counsel would not be removed,” writes Richard H. Pildes, a professor at the New York University School of Law and former clerk to Supreme Court Justice Thurgood Marshall, in an email.

A target from the get-go

Special Counsel Mueller has had a target on his back since the early days of his tenure. He was appointed on May 17; on June 12 Christopher Ruddy, the chief executive of Newsmax Media and a Trump friend, said publicly that the president was weighing Mueller’s dismissal. A day later, The New York Times reported that Trump did indeed want to fire Mueller, but that his staff had dissuaded him. In response, then-Deputy Press Secretary Sarah Sanders said that the president had the “right” to get rid of Mueller, but had no intention of doing so at the time.

Since then, Trump surrogates have steadily criticized Mueller, saying his investigation has gone too far afield and that he’s biased due to his friendship with fired FBI Director James Comey, among other things.

Trump himself hasn’t directly addressed the question, though he has repeatedly referred to the investigation Mueller leads as the biggest “witch hunt” in history.

Under existing Department of Justice regulations, Trump does not appear able to fire Mueller directly. The president would have to order Deputy Attorney General Rod Rosenstein, who appointed Mueller, to do the deed. (Attorney General Jeff Sessions has recused himself from Russia investigation matters.)

If Mr. Rosenstein refused, Trump could fire Rosenstein, then look for a replacement who would agree to dismiss Mueller. That’s how President Richard Nixon’s “Saturday Night Massacre” firing of Special Prosecutor Archibald Cox unfolded in October 1973.

The new bills represent a congressional effort to keep things from ever getting that far. Sen. Chris Coons (D) of Delaware and Sen. Thom Tillis (R) of North Carolina introduced one, the Special Counsel Integrity Act. Sen. Lindsey Graham (R) of South Carolina and Sen. Cory Booker (D) of New Jersey were among the prime backers of the second, the Special Counsel Independence Protection Act.

Both would codify the existing Justice Department rules about the hiring and firing of special counsels into law, lest the president just sweep them away and do what he wants. Both would establish the principle of judicial review of any special counsel firing, though they differ in when this review would occur in the process.

Backers say it’s possible the two efforts could be combined into one in September. At the least, they’re an example of how Congress is increasingly united in its efforts to push back against Trump excesses, according to their sponsors.

“This modest step ... is one way of our asserting ourselves as the Senate, just as we did with the Russia sanctions bill,” said Senator Coons on CNN earlier this week.

Constitutional challenges?

Are the bills constitutional? The legal consensus at the moment appears to be that they are, or at least would be with some minor tweaks. That’s in part because the now-expired statute which provided for the appointment of past Independent Prosecutors such as Lawrence Walsh in the Reagan years and Ken Starr in the Clinton era was a much more direct intrusion on executive branch prerogatives. It passed high court muster, so the new bills would too, runs this analysis.

But that’s not a sure thing. Both Democrats and Republicans were relieved when the old Independent Counsel law expired. Both parties had felt the sting of an unfettered special prosecutor ranging far and wide in search of perceived corruption. Both had seen how that exacerbated partisan brawling.

Given that experience, it’s possible the Supreme Court would now rule differently on this matter, writes Bob Bauer, former White House Counsel to President Obama, in the legal blog Lawfare.

“A new independent counsel-type law would face, at best, an uncertain fate in the Court,” he explains.

Are the new bills a good idea? That may be an even more difficult, and important, question.

The greatest utility of the new bills is that even without passage they establish a sort of red line. They’re evidence of disquiet on Capitol Hill. Implicitly, some senators are now saying to the president, if you go this far, then your presidency is in deep trouble. Even many Republican lawmakers may not back a Mueller firing.

“The main purpose for the enactment of these bills is for Congress to send a strong, credible signal in advance that it will not tolerate White House interference with the Special Counsel process,” writes NYU Law's Mr. Pildes.

Unintended consequences

But other experts think the legislation could also have some unintended consequences. Its own constitutionality might become a key issue, distracting the public from the actual circumstances of a Mueller dismissal. Thus for Trump, the firing of the special counsel could become a contest of litigation he might win, not the beginnings of a process that could lead to his own impeachment.

In the final analysis, Congress already has great influence over whether Trump fires Mueller or not, writes Bauer. Lawmakers don’t need to pass a new bill that might muddy the waters. Instead, they need to clearly say something they’ve shied from up to this point: firing Mueller without cause would be an impeachable offense.

“Congress’ use of the impeachment power,” explains Bauer, “is far superior to a return to the constitutionally murky, politically disabling conflicts invited by the last Independent Counsel law.”