Executive Power

Other Ways the Senate Can Protect the Mueller Investigation

By Richard H. Pildes
Thursday, September 28, 2017, 1:31 PM

On Monday, the Senate Judiciary Committee convened hearings, entitled “Special Counsels and the Separation of Powers,” to listen to legal experts testify about the two pending Senate bills (Graham-Booker and Tillis-Coons, summarized here) that aim to further protect Special Counsels, including Robert Mueller, from improper termination by the president. The hearings centered on whether there are significant constitutional issues concerning either proposal, along with the bills’ prudence as policy. I was asked to testify, but could not because of my conflicting teaching obligations at NYU (though some of the testimony quoted my earlier writings on this blog about these issues). I want to address issues raised in that hearing by suggesting a novel third approach, designed to accomplish the same aims as Graham-Booker and Tillis-Coons, which would minimize or eliminate the specific constitutional concerns that some commentators, including at Monday’s hearing, have raised about these bills.

Before getting into that alternative approach and the legal issues, it is important to step back and keep in focus the larger picture. The overriding aim of any congressional effort here is primarily political, rather than legal. That is, members of Congress supporting this legislation are seeking to send President Trump as strong of an ex ante message as possible that a majority of Congress supports letting the Mueller investigation reach its conclusion, and that any political interference with it – in particular, the President’s effort to remove Mueller – would put the President into confrontation with a majority of Congress in both House and Senate. Though individual members of Congress have ways of signaling that, there is no stronger or more credible means for Congress to send that message than by legislation. Moreover, by bringing in the courts, as a third institutional actor, to enforce the legislation Congress is also tying its own hands in advance in a way that furthers the credibility of the congressional commitment.

In this context, then, the specific content of the legislation matters less than that a majority of Congress is willing to vote (if it is) for a bill that symbolically throws the weight of congressional majorities behind the integrity of the Mueller investigation. The main purpose is to change the President’s calculus and reduce the likelihood that Mueller would be fired in the first place by this strong ex ante congressional statement of support for letting the investigation run its course. As a stand-alone bill, President Trump would likely veto it, though Congress is adept at attaching legislation to must—pass bills that could make a veto more difficult. But even if a Trump veto could not be overridden, the fact that a majority of Congress was prepared to support such legislation would inevitably carry weight in any White House calculations down the line about the likely response it would face in firing Mueller.

With that backdrop in mind, the principal goal of the legislative effort should be to find an approach that offers the “lightest lift” that enables a majority of Congress to vote to protect the Mueller investigation. Because both pending bills would impose a legislative requirement that Mueller not be removed without good cause, some have raised questions about the constitutionality of this for-cause removal restriction on the President’s power to fire at will an executive official (the Special Counsel). I think those concerns are overblown and, as all these critics acknowledge, do not reflect the precedents and current state of constitutional law. But whatever the strength of those arguments, it might well be that some members of Congress would be deterred from voting for these bills because of these concerns.

So I want to offer an even more modest approach. Congress could simply create a mechanism for judicial review of the application of the existing regulations that the Department of Justice has adopted, 28 CFR 600.1-10, and which themselves already protect against Mueller being removed except for good cause. It is black-letter law, under United States v. Nixon (1974), that when the executive binds itself through regulations like this, which it is free to do, the executive is then bound to comply with those regulations as long as they have not been revoked. By creating judicial review to make sure the executive has appropriately complied with its own, legally binding regulations, this approach would not impose a substantive, legislative constraint on the President’s removal authority. It would simply create a procedural mechanism, judicial review, for testing whether the Executive has complied with its own regulations by which it is already legally bound. In other words, the legislation would piggyback on the existing DOJ regulations, rather than create a new, legislatively imposed for-cause removal restriction.

The difference between this third approach and the two pending bills is subtle, but potentially of constitutional significance. Indeed, some members supporting these bills might think that they already do what I’m suggesting, because the bills borrow the language in the for-cause removal provisions from the existing regulations. But there is a major legal difference between doing that and the alternative option I’m putting on the table here: Once Congress codifies the substance of those removal restrictions into legislation, they remain in place even if the Executive Branch repeals the underlying regulations. This is the telltale sign that Congress has now itself imposed a legislatively binding for-cause removal constraint. To those who believe the Constitution requires a fully “unitary executive branch,” despite the conflicts of interest DOJ obviously confronts when it is the President himself being investigated, this new legislative constraint on the President’s removal power raises constitutional concerns.

In contrast, under the approach offered here, the legislation would do no more than give the courts the authority to enforce the Executive Branch’s own existing regulations. Congress is therefore not imposing a for-cause removal constraint on the Executive. The Executive branch has already imposed that on itself. Rather, Congress is simply creating a procedural mechanism through which the courts would enforce the existing regulations, much as the Supreme Court did in the Nixon case. If the executive branch repeals the existing regulation, there is nothing then for the courts to enforce or apply. The president’s hands are tied only for as long as he agrees to have them tied. This approach would dramatically minimize or even eliminate any of the constitutional concerns that some have raised about the existing bills; indeed, I would be quite interested to hear what scholars like Amar have to say about this proposal.

Of course, some will ask, if the president can repeal the regulation protecting Mueller, why would this legislation make a difference. The answer returns us to the big-picture: If a majority of Congress votes for such legislation, that fact alone will send a strong message to the President about the support in Congress for respecting the integrity of the Mueller investigation until it runs its course. And on the positive side, if there are members of Congress willing to support legislation of some form in this area, but concerned about the constitutional issues some have raised about the existing bill, the “lighter lift” this alternative offers might enable them to comfortably support this legislation by removing the constitutional concerns from the picture – and thus enable majorities in Congress to send the President the message to lay off interfering.

For those who think my proposal is too modest, Congress could easily add it to either of the pending bills as a back-up provision. Given the constitutional issues that have been raised about those bills, Congress could add a severability clause, which would state that if the Courts invalidated provision A, the legislatively imposed for-cause restriction, then provision B, judicial review of the Executive Branch’s compliance with its own regulations, would still stand.

In closing, I would like to make two other points in response to certain arguments raised, including on this blog, about Congress legislating to protect the Mueller investigation. First, some suggest that if Congress enacts any of these bills, they “would almost certainly be reviewed by the [Supreme] Court without delay.” But that is wrong if the courts following existing precedent: Based on current law, the legislation would not be ripe for judicial review before the point at which the President actually removed Mueller (if things ever got to that point).

That is the lesson under the old independent counsel statute. After that statute was enacted in 1978, the Department of Justice developed a practice of offering the independent counsel a parallel appointment within DOJ, as a special prosecutor, under the identical terms provided in the legislation. As a result, the D.C. Circuit concluded, in a 2-1 decision, that challenges to the independent counsel statute were not ripe because the special prosecutors had the full authority to carry out their functions under the clearly constitutional internal DOJ regulations. In Re Sealed Case, 829 F. 2d 50, 52-53 (D.C. Cir. 1987). [Morrison v. Olson arose only because Morrison refused to accept the parallel appointment pursuant to the DOJ regulations, as Kevin Stack argued in “The Story of Morrison v. Olson.”].[1] The same would be true here: Because the legislation does not add to the substantive powers Mueller already has under the existing DOJ regulations (which is even more obvious under my proposal), the legislation would not be ripe for review until it actually causes a change in the legal status quo – which, under these precedents, would not occur until he was fired (of course, the courts could decide to abandon these D.C. Circuit precedents, but that’s the existing law).

Finally, my NYU colleague Bob Bauer coined the phrase “Impeachment Anxiety Syndrome” to argue against any legislation that stands in the way of Congress moving directly to impeach President Trump should he fire Mueller. Bob’s view is based on the explicit argument that we ought to lower the historically high-bar in our political culture and rhetoric against impeaching and convicting presidents. Implicitly, he also seems to assume that if Trump were to fire Mueller, the House would indeed being serious impeachment proceedings. Bob resists any legislation that might stand in the way of that process.

Lowering the bar to impeachment would have profound consequences for American government -- much for the worse, in my view. Nor do I share Bob’s confidence about how the House or the Senate would respond to Mueller’s firing. But more importantly, it would be far better for the county to confront the question of whether the president has committed impeachable offenses after Mueller has completed his investigation. The consensus necessary to underwrite a healthy impeachment process (if that point is ever reached), would surely be far greater if Mueller’s investigation establishes serious acts of criminality than it would be from the firing of Mueller alone. Thus, legislation making it more likely that the investigation will not be improperly terminated would benefit the country, as the bipartisan sponsors of the Senate bills recognize.

[1] I am indebted on these points to Kevin M. Stack’s superb chapter, The Story of Morrison v. Olson: The Independent Counsel and Independent Agencies in Watergate’s Wake, in the volume Presidential Power Stories.