There is also risk of abuse when a law enforcement investigation implicates high level government officials — especially the president.  At minimum, investigators must be secure in the knowledge that their pursuit of justice will not result in their termination.  And the American public must be confident that even our highest-ranking officials are subject to the rule of law.  For at least the last several decades, the American public and Congress have consistently supported efforts to insulate prosecutorial decisions from improper partisan or personal considerations.  For instance, in the immediate aftermath of the Watergate special prosecutor’s firing during the Saturday Night Massacre, public opinion shifted in support of impeaching President Richard Nixon, members of Congress introduced impeachment resolutions, and a federal district court judge ruled that the firing of the special prosecutor was unlawful.  A few years later, Congress enacted the now-expired Independent Counsel Law, along with the Civil Service Reform Act of 1978, which codified the principle that federal employees (specifically, members of the civil service) should be insulated from administrations’ political whims.  In 1999, after Congress declined to renew the independent counsel statute, the Department of Justice adopted regulations laying out a process for appointing a special counsel to pursue investigations of White House officials or other senior political appointees.  The special counsel is appointed by the attorney general and may only be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for good cause.”  These provisions are meant to protect the special counsel from actual or perceived threats that could otherwise influence or impede his or her investigation, while providing a mechanism to hold the special counsel accountable in the event of misconduct.

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To be sure, tenure protections have not kept presidents from bristling at investigations by independent or special counsels.  President Clinton, for example, famously sparred with Independent Counsel Kenneth Starr during his investigation.  Nevertheless, recent statements and actions by President Trump suggest a far more serious threat to Special Counsel Robert Mueller’s investigation, reinforcing the importance of the department’s protections against removal, while simultaneously demonstrating why Congress should pass a law to protect the special counsel from removal without cause, rather than relying on executive branch regulations that can be amended or rescinded.  To give a partial review: After President Trump fired FBI Director James Comey, at least in part because of “this Russia thing,” Deputy Attorney General Rod Rosenstein appointed Special Counsel Robert Mueller to continue the investigation.  Since then, President Trump has repeatedly accused Mueller and his team of having “conflicts of interest” and has regularly referred to the investigation as a “witch hunt.”  He reportedly ordered Mueller’s firing in June of 2017 but walked back the order after White House Counsel Donald F. McGahn threatened to resign.  He has also made statements that appear intended to limit the scope of the investigation, stating that if the investigation veers into a review of his personal finances that would cross a “red line.”  President Trump has also publicly berated those he holds responsible for appointing the special counsel, including threatening to fire Attorney General Jeff Sessions because of Sessions’s decision to follow Department of Justice rules and recuse himself from the investigation and publicly attacking Rosenstein over the Mueller appointment.  Notably, of course, the president has not yet removed the special counsel.  The critical Department of Justice regulations forbid him from doing so, but they are hardly a guarantee that he will not eventually do so.  Because the current protections are merely regulations created by the Department of Justice rather than law, the executive branch can repeal or modify them without involving Congress.  President Trump’s aggressive actions and statements against the Russia investigation, as well as Special Counsel Mueller and his team, have left many to fear that his administration will eventually repeal or modify the current DOJ regulations, or that a future president facing a special counsel he or she deems hostile may be emboldened to do so. It is increasingly clear that special counsel protections need to be enshrined in a statute.

 

For this reason:

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The Task Force recommends supporting the bipartisan Special Counsel Independence and Integrity Act (S. 2644), introduced by Sens. Lindsay Graham (R-S.C.), Thom Tillis (R-N.C.), Chris Coons (D-Del.), and Cory Booker (D-N.J.) amid concerns that Special Counsel Mueller would be fired.  The bill, which was voted favorably out of the Senate Judiciary Committee, would only allow the special counsel to be removed for cause, and it limits the removal power to the attorney general or the most senior Senate-confirmed Department of Justice official who is not recused from the matter.  The bill also allows the special counsel to challenge his or her removal in court, requiring that any such challenge be considered on an expedited basis and that any appeals be directed to the Supreme Court, and provides for the preservation of the special counsel’s materials in the event of dismissal.  This legislation would not prevent a future president from publicly railing against or even threatening those involved in a special counsel investigation, but it would provide greater assurance that the president cannot unilaterally end an investigation. Legislation to protect the special counsel from improper removal is within Congress’s constitutional authority, as evidenced by similar exercises of its authority in the past that have been found to be constitutional.  Congress previously established an independent counsel with jurisdiction to investigate criminal misconduct by high-level executive branch personnel whose prosecution by the administration might give rise to conflicts of interest.  Congress insulated the independent counsel from improper removal by superiors.  Congress has also enacted legislation protecting numerous other federal officers from arbitrary removal.

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