Five months into his appointment, Congress considers two bills to protect special counsel Robert Mueller should the president fire him. What they don’t seem to realize is that President Trump can’t. As it stands, the only person who can fire Robert Mueller is Deputy Attorney General Rod Rosenstein – the man who appointed him.
Many fear that President Trump might order Rosenstein to fire Mueller. Others worry that he’ll fire Sessions and Rosenstein and appoint someone else to fire Mueller. While slightly different from each other, both bills would install safeguards against this outcome. However, the additional restrictions are completely unnecessary and a tad unconstitutional.
Two Unnecessary Bills
S.1741, or the “Special Counsel Integrity Act,” was sponsored by Senator Thom Tillis (R-NC) and co-sponsored by Senator Christopher Coons (D-DE). Rather than change how Mueller might be removed, it just reiterates much of the regulation already in place, then adds a review clause that allows the fired counsel to appeal:
“An action filed under this subsection shall be heard and determined by a court of 3 judges not later than 14 days after the date on which the action is filed in accordance with the provisions of section 2284 of title 28, United States Code, and any appeal shall lie to the Supreme Court.”
Of course, if the court deems the special counsel was fired wrongfully, he will be immediately reinstated.
The shorter of the two bills introduced August 3, S. 1735, was sponsored by Senator Lindsey Graham (R-SC) and co-sponsored by Senators Cory Booker (D-NJ), Sheldon Whitehouse (D-RI), and Richard Blumenthal (D-CT). The “Special Counsel Independence Protection Act” changes who can remove a special counsel:
“A special counsel appointed by the Attorney General, or any other official appointed by the Attorney General who exercises a similar degree of independence from the normal Department of Justice chain of command, may only be removed if the Attorney General files an action in the United States District Court for the District of Columbia and files a contemporaneous notice of the action with the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives.”
Though the first does so less than the second, either bill would grant the Legislative and/or Judicial Branches more control over job appointments in the Executive Branch. While the Judicial Branch does have the power to review laws and actions, they have no Constitutional authority to decide who does or does not work for the Department of Justice. Though Congress must confirm Attorney Generals, they don’t have any say in who else works for the DOJ either.
Aside from Constitutional concerns, the bills simply aren’t necessary. President Trump can’t fire Mueller – and he can’t really force Rosenstein to do it either.
Trump can’t Fire Mueller Directly
Once Rod Rosenstein – who is acting Attorney General in all things Russian collusion thanks to Sessions recusing – appointed Mueller as the special counsel, Mueller fell under the protection of Federal law:
“The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.”
Acting Attorney General Rosenstein has already announced to the Senate that he has seen no “good reason” to fire Mueller, and has suggested that he would refuse any presidential order to do so.
Trump Could Fire Mueller Indirectly – But He Won’t
There are two ways that Trump could get rid of Mueller indirectly. First, he could attempt to do away with the regulations protecting Mueller by Executive Order and then fire him directly. This is unlikely to happen, and even less likely to work for long should he try it.
The only other option Trump has to rid himself of Mueller is to fire Rosenstein (and probably Sessions) and appoint someone else. There are two problems with this, however. First, the president would have to find someone who both qualifies for the position and doesn’t mind the fact that coming in as an obvious ploy to fire Mueller would likely be the end of any political career. Even if President Trump could find such a person, it would be nigh impossible to get the appointment past Congress.
Even with these roadblocks, it is possible that President Trump could grossly overstep his authority and maybe succeed in an attempt to push past them. However, doing so could bring his presidency to an end quicker than if Mueller found an audio recording of Trump asking Putin to hack the DNC.
There is a better option than pushing unconstitutional laws, which, by the way, would have to pass by a two-thirds majority in both the House and the Senate to be veto proof and meet Supreme Court approval should they be challenged. Congress should simply wait. The president hasn’t tried to fire Mueller, and he hasn’t even said he would.
President Trump would commit two career killing sins by doing what it would take to force Mueller out. Not only would the move be seen by most as a clear abuse of his power, but it would also essentially be a “guilty plea” in the collusion case. There would almost certainly be sufficient public and Congressional support at that point to begin the impeachment process.