mueller-firing

Sen. Mike Lee blocks proposed legislation to protect Mueller investigation of Russian meddling in U.S. election

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.

Why the Senate Shouldn’t Grandstand on Mueller

The problem with the bill, as Judiciary Committee members such as Mike Lee pointed out at the time, is that it’s unconstitutional.

.. Nevertheless, some gesture reminding Trump of the trouble he would cause himself if he fired Mueller might be in order. But rather than satisfying themselves with a nonbinding Senate resolution, Democrats, joined by Republicans such as Flake and even current Trump ally Graham, insisted on a bill that would allow any special counsel fired by the Justice Department to challenge the action in federal court while protecting documents relevant to their investigations. As Graham put it, the bill wasn’t so much about Mueller or Trump but defending the rule of law.

.. 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.

With Sessions Out, What Happens to Mueller?

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.

● The attorney general will not limit the jurisdiction of the special counsel without first consulting with the Republican and Democratic leaders of the House and the Senate.

● The investigation by the special counsel shall continue until he determines that it and all prosecutions and other proceedings within his jurisdiction have been completed or, in his discretion, have been reassigned in the Justice Department.

● The special counsel may from time to time make public such statements or reports as he deems appropriate and shall upon completion of his assignment submit a final report to the appropriate people or entities of Congress and may make such a report public.

This is all common sense, but the problem is that it also runs counter to the president’s stated reasons for getting rid of Mr. Sessions — namely, that Mr. Sessions wouldn’t intervene in Mr. Mueller’s inquiry.

.. Members of both chambers should demand, including in oversight or other hearings, a commitment, given under oath, from any new person overseeing the Mueller investigation to protect the investigation along the lines of the Bork protections.

Legislation also should be pursued to impose the Bork protections on the Mueller investigation. (Alternatively, existing bipartisan legislation to protect the investigation should be renewed.)

Senate Republicans might not follow through, but congressional Democrats, new to the majority come January, should make it clear now that any interference with the Mueller inquiry will be met with increasingly aggressive congressional investigations.

And the public has a role to play as well. Americans must make it clear that any attack on the special counsel’s office is an attack on the fundamental principles of the rule of law.

.. For example, in March, Senator Lindsey Graham made an unequivocal public commitment, stating, “I pledge to the American people, as a Republican, to make sure that Mr. Mueller can continue to do his job without any interference.” Senator Graham is in line to lead the Senate Judiciary Committee next year, and this puts him in a powerful position to carry out his pledge to the nation.

The Mueller Investigation Is Bigger Than Rod Rosenstein

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.

The wheels of justice are already in motion, and it would take someone willing to take a fall for the president to try to stop it.