US presidency: The special counsel standoff

Michael Goldhaber, IBA US Correspondent

Throughout the summer and autumn, special counsel Robert Mueller has steadily issued grand jury subpoenas as part of his investigation into alleged contact with Russia by President Trump’s eldest son, by his former national security adviser, and by his former campaign manager. There have also been subpoenas relating to the President’s firing of FBI Director James Comey. And, reportedly, Mueller is probing business deals by the Trump Organization, despite the President’s public warning that doing so would cross a ‘red line.’

Even before the summer, Trump confidante Christopher Ruddy told the press that the President might fire Mueller. So why didn’t President Trump retaliate after Mueller crossed his red line? Why does a famously impatient President watch with forbearance as the investigation draws ever nearer?

‘‘The DOJ regulations under which Mueller has been appointed protect him from firing without good cause. There has to be a reason. And it can’t be: "You’re getting too close, I don’t like you"’

Susan Bloch
Professor of Law, Georgetown University

The answer may lie in the law and practice of executive oversight. Even as the special counsel and the President circle each other, the Senate Judiciary Committee is debating two similar bipartisan bills that would shield Mueller from President Trump.

The Special Counsel Independence Protection Act, S.1735 -- proposed by Senators Lindsey Graham and Corey Booker -- would make the President’s firing of a special counsel subject to advance judicial approval, with a direct appeal to the Supreme Court. The Special Counsel Integrity Act, S.1741, proposed by Senators Thom Tillis and Chris Coons, would make the firing of a special counsel reviewable by the courts after the fact.

Rep. Adam Schiff, the ranking Democrat on the House Intelligence Committee, has warned that Congress would go even further if the President fired Mueller -- by reestablishing an ‘independent counsel’ act and rehiring Mueller as an investigator on behalf of Congress.

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Susan Bloch of Georgetown University Law Center says these bills are ‘a not-so-veiled threat to the President that says: ‘We really don’t want you to fire Mueller…Don’t do it.’

The 1978 independent counsel statute made the investigator of the President judicially appointed, judicially supervised, and judicially removable on limited grounds. But Congress in 1999 let the statute lapse because Republicans were displeased with the Iran-Contra investigation, and Democrats with Monicagate.

The bills giving judges a say in removal would make the special counsel more like an independent counsel – but only up to a point. It would still leave the special counsel’s appointment in the control of DOJ officials subordinate to the President. And while Mueller is extremely independent, his appointment depended on a number of serendipitous events – the Attorney General cornering himself into a recusal, the Russia scandal breaking after the President had appointed a relatively independent Deputy Attorney General, and the President giving the Deputy AG the political cover to appoint Mueller when the President fired Comey.

Importantly, the Senate bills would also leave the special counsel subject to the DOJ policy that a sitting President can’t be indicted. In practice, a special counsel cannot indict a sitting President, because any action resulting from his investigation must be taken by DOJ’s highest un-recused official, and any criminal indictment requires the consent of a DOJ attorney.

To fully revive the independent counsel model, as threatened by Rep. Schiff, would also revive the possibility of a Presidential indictment. Both the Watergate and Monicagate counsel concluded that it would be constitutional for them to indict a President, but exercised their discretion not to, and left the question untested in the courts. Bloch argues that the only redress provided by the Constitution for presidential crimes is impeachment, and to expose the President to criminal process would be ‘terribly disruptive'. 

Robert Mueller

Robert Mueller

But Eric Freedman of Hofstra Law School has shown that the first Senate knew the question to be undecided. Given room for interpretation, Freedman insists that blanket presidential immunity would offend the precept that ‘the Law is King and the King is not Law'.

The constitutionality of moving back in the direction of an independent counsel is another question. Though the Supreme Court in 1988 upheld the original independent counsel act in Morrison v Olson, Justice Antonin Scalia’s dissent has gained a wide and reverent following. Indeed, at a hearing on 26 September, Yale Law School’s Akhil Amar told the Senate that even subjecting the special counsel’s firing to judicial review would violate separation of powers. Two other legal scholars testified that the bills would pass muster.

In any event, Bloch believes the Senate bills are mainly about political signaling. Legally they’re unneeded, she says -- because Mueller can already challenge his firing in the courts, and he’d have a strong case. ‘The DOJ regulations under which Mueller has been appointed protect him from firing without good cause,’ she notes. ‘There has to be a reason. And it can’t be: "You’re getting too close, I don’t like you." He has to have done something wrong.’

Simply by debating these bills, the Senate is signaling the President that any attempt to block investigation will only make impeachment likelier. Moreover, by firing Mueller, President Trump would invite Congress to revive an independent counsel – which is the only way to put indictment back on the table. By holding fire, the President eliminates the possibility of being indicted, while reducing and delaying the possibility of impeachment. From the President’s perspective, the worst that could happen is that he’d put Congress’s independence to the test.