Several days ago, I noted with dismay that a large majority of the Republican members of the House Judiciary Committee sent a letter to Attorney General Sessions calling for a second special counsel, in addition to Robert Mueller, to investigate alleged malfeasance by Hillary Clinton, Loretta Lynch, James Comey, and a grab-bag of other people and events associated in one way or another with the Democratic side of the recent presidential campaign. I lamented this letter as both a transparent attempt to deflect attention from Mr. Mueller’s Russia investigation and a distressing instance of Republican participation in Mr. Trump’s assault on democratic norms.
A number of Republican senators have taken a quite different approach – proposing legislation that would make it difficult for Mr. Trump to remove Mr. Mueller. Republican Senator Lindsey Graham and Democratic Senator Corey Booker are co-sponsoring a bill that would both prevent dismissal of a special counsel absent good cause and make such a dismissal reviewable by a panel of judges. A similar bill co-sponsored by Senators Thom Tillis, R-N.C., and Chris Coons, D-Del., would allow a special counsel to challenge his removal in court.
I have two reactions to these efforts:
First, I am heartened that Republicans in the Senate are taking a far more responsible position than their House colleagues toward Congress’s constitutional obligation to monitor and check executive wrongdoing. Whether Mr. Mueller ever finds evidence of serious malfeasance or not, these Republican Senators give one hope that bare partisanship has not utterly neutered at least one half of the national legislature.
Second, having said this, there are real doubts about the approach adopted in these bills. In important respects, both bills would be a reversion to the now-defunct post-Watergate independent counsel law. It is widely agreed that the degree of autonomy conferred on “independent counsel,” the monocular focus of such investigations on a single target, the immense resources made available to ICs, and the breadth of the federal criminal law too often meant that ICs ventured far afield from their original mandate, digging and digging until they found some crime, however inconsequential. That law was allowed to lapse after the Clinton fiasco for a reason.
I wholeheartedly support the notion that Congress should signal to Mr. Trump – and strongly – that it will not tolerate either a premature dismissal of Mr. Mueller or efforts to obstruct his investigation. But it is not at all clear that the signal should be sent in the form of a statute – a law – that will persist beyond the current crisis and is quite likely to come back to bite us later.
I am therefore in some sympathy with former White House Bob Bauer, who argues that the appropriate congressional response to a firing of Mueller should be the initiation of impeachment inquiries employing its own undoubted investigative authority. That said, while Mr. Bauer’s criticism of both the old Independent Counsel law and the proposed legislation seems spot on, one cannot but wonder how likely formal impeachment proceedings or even serious preliminaries to a congressional impeachment investigation are given the current composition of Congress. Here, it is particularly important to note that any impeachment inquiry must begin in the House, and customarily in the very Judiciary Committee whose hyperpartisan disposition has been on recent display. Mr. Bauer, to his credit, tacitly concedes the improbability of a prompt move to impeachment, but notes that the Senate at least has sent other kinds of disapproving signals to the White House, included pointed indications that it might not consider a replacement to Jeff Sessions if he were fired as a means of getting to Mueller.
I am less impressed with Professor Rick Pildes’s suggestion that Congress could attempt to forestall Mueller’s firing by codifying existing DOJ regulations regarding special counsel. As I pointed out in Slate some weeks ago, those regulations would not prevent Mr. Trump from firing Mr. Mueller if he is determined to do it. They create some procedural hurdles, but a president already determined to endure the political damage such a firing would entail could surmount those with ease. If he is determined to fire Mueller, he’ll just dismiss Attorney General Sessions and then work his way through the DOJ hierarchy until he finds someone willing to issue the order. The regulations will have been satisfied and Mueller will be gone. Turning the current regulations into statutes would do nothing to change that calculus.
Professor Pildes’ proposal might serve one salutary function. Perhaps bicameral endorsement of DOJ standards making firing a special counsel difficult would signal to Mr. Trump that Congress as a whole would seriously contemplate impeachment if he fired Mueller. But, again, the House of Representatives would have to vote in favor of this legislation. And at present, that is hard to envision.
Still, one should take some solace in signs of the Senate’s slow awakening to its constitutional responsibilities.