Republican Senators Need to Be Clear With Trump: Don’t Fire Mueller

As we stampede into year two of the Robert Mueller investigation, Republicans have done absolutely nothing to prevent President Donald Trump from firing him.

Late last month, a bipartisan bill passed out of the Senate Judiciary Committee that would allow a special council to appeal to a panel of judges, in the event that they were fired without “good cause.” But Senate Majority Leader Mitch McConnell won’t bring it up for a vote, and even if he did (and it were to miraculously pass the House and Senate), the president wouldn’t sign it—which means it would have to pass with a veto-proof majority—which, of course, isn’t going to happen.

The whole caper reminds me of the almost-impossible setup to the Ocean’s Eleven heist: “Say we get into the cage, and through the security doors there and down the elevator we can't move, and past the guards with the guns, and into the vault we can't open...we're just supposed to walk out of there with $150,000,000 in cash on us, without getting stopped?” Sadly, there are no Danny Ocean’s in the U.S. Senate to pull this one off.

At the risk of getting too deep in the legislative and constitutional weeds about a bill no one thinks has a chance, it’s probably worth considering how our elected representatives can make it less likely that the president will fire Robert Mueller. Maybe just bringing up this bill will serve as a symbolic warning sign to the president?

Even here, this is risky business. Some Republican senators have received personal assurances from the president that he won’t fire Mueller. They are content to take him at his word—and this is arguably a legitimate strategic decision. They're comfortable with launching investigations of the Mueller investigation even when—as revealed by the White House on Tuesday—those investigations don't involve congressional Democrats, as will be the case with a briefing with the Intel leaders on the informant the FBI used to keep tabs on the Trump campaign.

There are other problems. Senator Ben Sasse, one of the more heroic conservatives when it comes to standing up to President Trump, opposes the bill on constitutional grounds. “Firing Robert Mueller while Russia is waging a shadow war against America would be disastrous for the nation, not to mention politically suicidal for the president,” Sasse recently said.  “But we can’t solve a crisis of public trust by creating a constitutional crisis with a new fourth branch of government,” Sasse said in a statement provided to The Weekly Standard. “And unfortunately, that’s the road this bill takes.”

As best I can tell, what Sasse means by creating a “fourth branch” of government is that this bipartisan bill doesn’t fit neatly inside any of the three branches of government. It uses Congress and the courts to usurp executive branch responsibilities in a way where responsibility belongs to neither wholly legislative, nor wholly judicial, nor wholly executive actors.

In an attempt to fix this, there were thoughts of adding amendments. Sasse contemplated one that would have responded to a potential Mueller firing by simply declaring that “Congress will use its lawful authorities under the Constitution of the United States — A) to ensure that the investigation is completed; and B) to hold the executive branch accountable.” But for various parliamentary reasons, that amendment hasn’t been introduced, and since the bill is considered to be dead, doing so would be a moot point.

Still, Sasse hasn’t changed his mind about the sentiment—even as it appears likely this bill will simply wither on the vine. “Senator Sasse has explored multiple options to ensure that, if the President tries to deep-six the Special Counsel, the Russia investigation can be sustained and completed under Congress’ constitutional authority,” said James Wegmann, spokesman for Sasse.

“We’ve considered a wide range of options that respect the constitution’s separation of powers–those options include using advice and consent power, funding power, subpoena power, and oversight authority,” he continued.

Hmm. Reading between the lines, “advice and consent” power could include creating a complete and total logjam of nominations required to move nominees. “Funding power” notes the ability of Congress to impose budgetary consequences on a White House. And “subpoena” and “oversight” are reminders that Congress has the ability to bring in any number of administration officials to testify before the intel committee. In other words, the co-equal branches of power actually do have some power—if they would actually employ it.

All of these mechanisms could be used retroactively—and their potential use could serve as a deterrent against firing Mueller. It turns out there is no realistic statutory way to stop Trump from firing Mueller. The leverage was always to (a) let it be known this was a red line, and (b) use the threat of retaliation as a deterrent. (Sound familiar?)

Instead of seeing this as a failure of the Senate to proactively get something done, I would look at the bright side. It is a tenet of conservatism that not every problem has a legislative solution. This problem seems to fit into that category.

The legislative part was always going to be symbolic, anyway. The key here is for Republican senators to band together to send a clearer message to Trump that firing Mueller will have serious consequences. And on this count, they have probably not been clear enough. The GOP message now seems to be: “Oh I don’t think Trump would fire Mueller.” It should be more akin to what Sasse seems to be suggesting: “Trump better not fire Mueller—or else!”