Quiz time: What does Antonin Scalia have to do with Robert Mueller?
Answer: Maybe more than you think.
We’ll get to that. But first let’s review. As I wrote Tuesday, Lindsey Graham and Thom Tillis, the two Republican senators who last year put their names on two pieces of “protect Mueller” legislation, now see no need for their own bills. There must be some fable from Aesop—or better still, an old Russian proverb—about the townspeople who keep refusing to believe the malevolent visitor is going to destroy the town until the day it lay in ruins. And if there isn’t, we could make it up right now. There were once some Republicans in Congress who simply couldn’t believe the president would fire a special prosecutor...
The day my last column appeared, Mitch McConnell, theretofore silent, actually came out with some reasonably forceful words. Of Robert Mueller, he said: “This is a thoroughly credible individual, I think it was an appropriate appointment, and we all anticipate his finishing the job and telling the American people what they need to know about this episode.”
That’s not terrible. Not as ridiculous as Paul Ryan’s statement (he’d “received assurances” that the firing was not under consideration). But still, here’s what’s missing from all these Republican comments on the matter.
Firing Mueller, they say, constitutes a red line. Which, if Trump crossed it, would compel them to do exactly what?
They never say. Would they hold hearings? Demand appointment of a new counsel, in the event that Mueller was found to have run afoul of some shoddily invented “conflict of interest”? Pursue these “protect Mueller” bills, and make them retroactive? Most dramatically, would they push their counterparts in the House to start drawing up articles of impeachment?
None of them will ever say. This week, Tara Golsham of Vox cornered five GOP senators on the Hill and asked them why they saw no need for legislation to protect Mueller, and what exactly they would do if he were were fired (and worth remembering, always: Trump can’t fire him directly; that would have to be done by Deputy AG Ron Rosenstein). Here’s a sampling of what they said.
Bob Corker: “Do I think there would be a significant backlash if he were fired? Yes. Do I think the administration is planning to do it? No.”
John Kennedy: “His lawyer says he’s not going to fire Mr. Mueller. I don’t expect him to fire Mr. Mueller. And so I think this is all an academic exercise.”
Rob Portman, on what the Senate would do: “Well, I don’t know what it would be” (elevator door closes).
Jeff Flake: “Well, the problem is that I’m not convinced the two pieces of legislation that have been introduced are constitutional.”
Profiles in courage, as you can see. But Flake raises an interesting point, and here we circle back around to Scalia.
The two bills specifically provide for the following. The first, by Cory Booker and Lindsey Graham, would require a panel of three federal judges to review a proposed firing of a special counsel before it could be finalized. The second, by Democrat Chris Coons and Republican Thom Tillis, would allow a fired special counsel to appeal the firing to a three-judge federal panel.
What’s the difference, you ask? It’s that the first bill could possibly be seen as the legislative branch interfering in the executive branch’s prerogative—telling a president whom to hire and fire. That is why Coons and Tillis crafted their legislation, which was dropped shortly after the Graham-Booker bill, the way they did—to answer precisely that concern because it wouldn’t preclude a firing, it would review it.
In any case, says Daniel Hemel of the University of Chicago Law School, the Supreme Court has weighed in on this. The case was Morrison v. Olson in 1988 (and yes, Olson was the same Ted Olson whom Trump now is begging to join his legal team; back then, he was accused of having given misleading testimony to a House committee).
This is the case in which the court, by 7-1, upheld the independent counsel law as constitutional. Hemel explains why that precedent should hold here: “The Court held that for-cause removal restrictions protecting the independent counsel do not violate the separation of powers. Because the special counsel is even less independent than the independent counsel under the old Ethics in Government Act, the imposition of identical removal restrictions for the special counsel is even less problematic than the restrictions upheld in Morrison.” It’s binding precedent.
But that one dissenter was the conservative jurisprudential godhead—Scalia. And it was one of his most blistering dissents, containing his admittedly prescient critique that an independent counsel could become a law unto himself. So over the years in conservative circles, it’s practically become as if the opinion—on which William Rehnquist and Thurgood Marshall agreed!—is garbage and the dissent is the law.
And that reverence for the Great Nino may help explain—not as much as their fear of all those Trump-loving base voters, but helps—why Republicans don’t want to push these bills. They’d be relying on a Supreme Court precedent they reject.
Coons and Booker reportedly are still hoping against hope they can bring Tillis and Graham around. Well, good luck to them. But it’s not likely to happen. And even these bills, good though they are, go only part of the way. Mueller is not an “independent” counsel but just a special counsel, and therefore his role is strictly governed by the Justice Department. Unlike Ken Starr, he has no unlimited budget. Rosenstein sets it. Likewise, Rosenstein can decide any Oct. 1 to cut the funding off and close the office down.
The Democrats at some point ought to go ahead and write a protect Mueller bill that has all that in it, as Hemel and his Chicago colleague Eric Posner wrote in this New York Times op-ed last year. He who waits forever waits in vain. Ees olt Rahssiyan sayink.