Lee cited a 30-year-old dissent by Supreme Court Associate Justice Antonin Scalia arguing that protecting an independent counsel from presidential power creates a “fourth branch of government.”
Lee warned that the bill to protect Mueller would “fundamentally [undermine] the principle of separation of powers.”
“Prosecutorial authority in the United States belongs in the Department of Justice.” Lee said... Lee and fellow Republicans, including longtime Sen. Orrin Hatch of Utah, have said there’s no need for legislation because Trump wouldn’t fire Mueller or end his probe. Sen.-elect Mitt Romney, who will succeed Hatch, says the investigation must continue unimpeded, though he isn’t sure if legislation is necessary... Flake, who is leaving office, said Wednesday that his colleagues are blind if they can’t see Trump is already angling to halt Mueller’s investigation.
.. “With the president tweeting on a regular basis, a daily basis, that the special counsel is conflicted, that he is leading the so-called 12 angry Democrats and demeaning and ridiculing him in every way, to be so sanguine about the chances of him getting fired is folly for us,” Flake said on the Senate floor.
.. Coons pointed out that the Scalia opinion Lee cited was a dissent on a 7-1 decision by the high court and that the justices ruled the law creating an independent counsel was constitutional. (The law has since expired and the special counsel now is supervised by the attorney general.).. “At the end of the day, leader McConnell has gotten reassurances from the president that he won’t act against Mueller, but those assurances are undermined every single day when President Trump both tweets untrue criticisms of Robert Mueller and his investigation and does other things that are unexpected or unconventional or unjustified,” Coons told MSNBC.
The problem with the bill, as Judiciary Committee members such as Mike Lee pointed out at the time, is that it’s unconstitutional... But however foolish the firing of Mueller might be, the notion that Congress has the power to prevent the president from discharging anyone who works in the executive branch of government is on very shaky ground.
Congress and the public must now push for protections for the special counsel.
As ethics experts, we believe Mr. Whitaker should recuse himself from the investigation. If we have ever seen an appearance of impropriety in our decades of experience, this is it: a criminal subject president appointing his own prosecutor — one who has evidently prejudged aspects of the investigation and mused about how it can be hampered.
.. Whether or not Mr. Whitaker steps aside, Mr. Trump’s audacity now demands additional safeguards. Congress must quickly put in place a plan to protect the Russia investigation before President Trump makes any further efforts to control the special counsel’s office.
.. Our proposed solution is based upon one devised by, of all people, Robert Bork when he was the acting attorney general during Watergate. Mr. Whitaker or whoever becomes the next acting attorney general must provide the same protections against interference that Mr. Bork provided to the special Watergate prosecutor, Leon Jaworski, in a 1973 Justice Department order. Mr. Jaworski received the protections as part of agreeing to replace the previous prosecutor, Archibald Cox, who was fired in the infamous Saturday Night Massacre.
The Bork order contained much stronger provisions to protect the independence of the special prosecutor investigation than is now found in the Department of Justice guidelines that govern the Mueller inquiry. These enhanced protections should be demanded from any new person given responsibility to oversee the Mueller investigation:
● The attorney general, acting or permanent, will not remove the special counsel except for extraordinary improprieties.
● The special counsel shall not be subject to the day-to-day supervision of any Justice Department official. The attorney general shall not countermand or interfere with the special counsel’s decisions or actions.
This isn’t to say that a Rosenstein replacement couldn’t do any damage — he could try to starve the investigation of resources, for example, or withhold approval for investigative steps that have yet to be taken. But considering that the potential replacements for Mr. Rosenstein — Solicitor General Noel Francisco or the head of the Office of Legal Counsel, Steven Engel — have very little experience in counterintelligence and criminal matters, they would face an uphill battle justifying those decisions against seasoned prosecutors and in the face of evidence warranting otherwise.
.. Under the special counsel regulations, moreover, any such decision would be required to be reported to Congress. With the precedent set by Devin Nunes on the House Intelligence Committee, if Congress changes hands, it’s going to be very difficult for the president to try to block obvious attempts to obstruct justice from seeing the light of day.
President Trump is acting with a desperation I’ve seen only once before in Washington: 45 years ago when President Richard M. Nixon ordered the firing of special Watergate prosecutor Archibald Cox. Nixon was fixated on ending the Watergate investigation, just as Trump wants to shut down the Mueller investigation into Russian interference in the 2016 election.
.. in some ways, Trump is conducting himself more frantically than Nixon, all the while protesting his innocence.
.. Nixon fought to the end because he knew that what was on the tape recordings that the prosecutor wanted would incriminate him. We don’t know what Trump is hiding, if anything. But if he is innocent of any wrongdoing, why not let Robert S. Mueller III do his job and prove it?
.. Nixon was desperate. His goal was to shut down the Watergate investigation by ridding himself of Cox. Instead, Nixon got Leon Jaworski, the highly respected former president of the American Bar Association. Nine months later, the Supreme Court handed down a unanimous decision forcing Nixon to release the tapes that proved his guilt. Shortly thereafter, the president resigned.
.. Not only was that Saturday night the beginning of the end of the Nixon presidency, but it also accelerated the growing wave of political cynicism and distrust in our government we are still living with today. One manifestation of that legacy: a president who will never admit he uttered a falsehood and a Congress too often pursuing only a partisan version of the truth.
.. The vehemence and irresponsibility of the rhetoric attacking the Mueller investigation tear at the very structure of our governance. Men who have sworn to use and protect our institutions of justice are steadily weakening them. Should the president finally decide to fire Mueller and put in place someone who will do his bidding, the country could be thrown into a political crisis that would scar our democracy and further erode the trust of our people in our governmental institutions.
WASHINGTON — For years, President Trump has used Twitter as his go-to public relations weapon, mounting a barrage of attacks on celebrities and then political rivals even after advisers warned he could be creating legal problems for himself.
Those concerns now turn out to be well founded. The special counsel, Robert S. Mueller III, is scrutinizing tweets and negative statements from the president about Attorney General Jeff Sessions and the former F.B.I. director James B. Comey, according to three people briefed on the matter.
.. Several of the remarks came as Mr. Trump was also privately pressuring the men — both key witnesses in the inquiry — about the investigation, and Mr. Mueller is examining whether the actions add up to attempts to obstruct the investigation by both intimidating witnesses and pressuring senior law enforcement officials to tamp down the inquiry.
.. Trump’s lawyers said. They argued that most of the presidential acts under scrutiny, including the firing of Mr. Comey, fall under Mr. Trump’s authority as the head of the executive branch and insisted that he should not even have to answer Mr. Mueller’s questions about obstruction.
But privately, some of the lawyers have expressed concern that Mr. Mueller will stitch together several episodes, encounters and pieces of evidence, like the tweets, to build a case that the president embarked on a broad effort to interfere with the investigation. Prosecutors who lack one slam-dunk piece of evidence in obstruction cases often search for a larger pattern of behavior, legal experts said.
.. the nature of the questions they want to ask the president, and the fact that they are scrutinizing his actions under a section of the United States Code titled “Tampering With a Witness, Victim, or an Informant,” raised concerns for his lawyers about Mr. Trump’s exposure in the investigation.
.. “If you’re going to obstruct justice, you do it quietly and secretly, not in public,” Mr. Giuliani said.
.. federal investigators are seeking to determine whether Mr. Trump was trying to use his power to punish anyone who did not go along with his attempts to curtail the investigation.
.. Investigators want to ask Mr. Trump about the tweets he wrote about Mr. Sessions and Mr. Comey and why he has continued to publicly criticize Mr. Comey and the former deputy F.B.I. director Andrew G. McCabe, another witness against the president.
.. They also want to know about a January episode in the Oval Office in which Mr. Trump asked the White House counsel, Donald F. McGahn II, about reports that Mr. McGahn told investigators about the president’s efforts to fire Mr. Mueller himself last year.
.. Mr. Trump has navigated the investigation with a mix of public and private cajoling of witnesses.
.. Around the time he said publicly last summer that he would have chosen another attorney general had he known Mr. Sessions was going to recuse himself from the Russia investigation, Mr. Trump tried behind closed doors to persuade Mr. Sessions to reverse that decision. The special counsel’s investigators have also learned that Mr. Trump wanted Mr. Sessions to resign at varying points in May and July 2017 so he could replace him with a loyalist to oversee the Russia investigation.
.. Mr. Trump issued an indirect threat the next day about Mr. Comey’s job. “It’s not too late” to ask him to step down as F.B.I. director, he said in an interview with Maria Bartiromo on Fox Business Network. The special counsel wants to ask the president what he meant by that remark.
.. Mr. Sessions, his aide told a Capitol Hill staff member, wanted one negative article a day in the news media about Mr. Comey, a person familiar with the meeting has said.
.. By the fall, Mr. Comey had become a chief witness against the president in the special counsel investigation, and Mr. Trump’s ire toward him was well established. His personal attacks evolved into attacks on Mr. Comey’s work, publicly calling on the Justice Department to examine his handling of the Clinton inquiry — and drawing the special counsel’s interest.
.. Mr. Trump’s lawyers have pushed back against the special counsel about the tweets, saying the president is a politician under 24-hour attack and is within his rights to defend himself using social media or any other means.
.. The president continues to wield his Twitter account to pummel witnesses and the investigation itself, ignoring any legal concerns or accusations of witness intimidation.
It’s just become trickier for President Trump to fire Robert Muelleranytime soon. Doing so during the Supreme Court confirmation process for Brett Kavanaugh — which is likely to last for at least two months — would create a set of problems for Trump that didn’t exist before.
One, Trump clearly loves making Supreme Court nominations. They allow him to look presidential and to be bathed in praise by other Republicans. If he were to fire Mueller — the special counsel investigating Russian interference in the election — anytime in the coming weeks, the confirmation process would immediately lose its normalcy. It would be dominated by discussion of Mueller’s Russia investigation, which Trump loathes and makes him look like the opposite of a normal president.
Two, firing Mueller could damage the Republicans’ chances of holding Congress in this year’s midterms.
.. the Supreme Court nomination has some real political advantages for Republicans. It unifies their base voters and reminds them of reasons to turn out. And it turns the discussion away from Trump, who remains unpopular.
.. Finally, firing Mueller could damage Kavanaugh’s chances of confirmation. As I’ve written before, I would be very surprised if any Senate Republicans defected. But their margin for error is virtually zero. Losing a single senator could defeat the nomination. And the circus that would accompany the firing of Mueller could certainly imperil one vote.