WASHINGTON (CN) – Legal experts warned the Senate on Tuesday about serious constitutional flaws that undermine their attempts at giving Special Counsel Robert Mueller some job security.
Lawmakers introduced two bills on Aug. 3 with bipartisan support in responses to widespread speculation that Mueller would be fired by President Donald Trump while carrying out his investigation of collusion between the Trump campaign and the Russian government.
Akhil Amar, a professor at Yale Law School, called it problematic that the bills make it harder for Trump to fire Mueller, who did not face Senate approval, than members of his cabinet.
“It is very hard to be both inferior and independent at the same time, it’s like a square circle,” Amar said at Tuesday’s hearing of the Senate Judiciary Committee. “And these bills try to make someone who is inferior also independent and constitutionally that’s a problem.”
Mueller is protected by Justice Department regulations that require good cause to fire a special counsel, but none of these rules have been officially codified as federal laws.
Sens. Thom Tillis, R-N.C., and Chris Coons, D-Del., worked together on one proposed legislative solution. Their bill allows the special counsel to challenge his firing before a panel of three federal judges after receiving written notice of the Justice Department’s decision. If the challenge is brought to the panel within 14 days and the firing is found to lack good cause, the special counsel would be reinstated.
The bill proposed by Sens. Lindsey Graham, R-S.C., Cory Booker, D-N.J., Sheldon Whitehouse, D-R.I., and Richard Blumenthal, D-Conn., meanwhile is pre-emptive. Their bill bars the Justice Department from removing a special counsel without approval from a panel of three judges. Any appeal of that panel’s decision would go straight to the Supreme Court.
Yale Law’s Amar emphasized at the start of Tuesday’s hearing that he has vocally opposed Trump. During his testimony, however, the professor counted up to six Supreme Court justices who would find both Mueller proposals unconstitutional on the grounds that they would violate the separation-of-powers doctrine.
Amar repeatedly cited the late Justice Antonin Scalia’s dissent in the 1988 decision Morrison v. Olson, which disagreed with the majority’s holding that an independent counsel law did not violate the separation of powers. Amar said Justices Clarence Thomas and John Roberts have favorably cited Scalia’s dissent in the past and that Justice Elena Kagan even praised it once in a speech.
Before either bill could even take effect, however, Amar noted that Trump would have sound legal justification to veto them. He said Congress would have a hard time overriding the veto, which would ultimately increase executive power over special counsels.
Amar recommended that Congress instead consider creating a bipartisan panel to conduct oversight of the White House.
“Instead of punting things to the judiciary … you’d be emulating the judiciary at its best,” Amar said.
John Duffy, a professor at University of Virginia School of Law, was less quick to dismiss the bills as likely unconstitutional. Simply removing a provision in the Tillis-Coons bill that makes the legislation retroactive to the date of Mueller’s appointment would help the bill to clear constitutional objections, Duffy said.
The other two experts who testified on Tuesday said both bills would be constitutional, but disagreed on which proposal would be better. Stephen Vladeck, a law professor at University of Texas, said both bills would be less intrusive than the law upheld in Morrison.
While Vladeck slightly favored the Graham-Booker proposal, University of Chicago law professor Eric Posner gave the edge to Tillis-Coons.
“Congress has a constitutional obligation to check the executive branch by providing the means for ensuring that an investigation takes place and is done fairly,” Posner said. “The Special Counsel Independence Act and the Special Counsel Integrity Act take an important step in this direction.”
Multiple lawmakers expressed concerns about the bills, even while praising their intentions. Sen. Dianne Feinstein, D-Calif., said she was still “confused” after asking the panel a series of questions about the constitutionality of each proposal.
Sen. Mike Lee, R-Utah, asked three rounds of questions at the hearing, but said none of the answers satisfied the separation-of-powers concerns he held at the beginning of the day.
“The overriding concern that I have whenever we’re talking about this area is that bad things happen when we depart from the three-branch structure of the federal government,” Lee said.
The sponsors of the bills, most of whom who sit on the Judiciary Committee, defended their proposals as necessary to avoid a constitutional crisis or a repeat of the infamous Saturday Night Massacre, in which the attorney general and deputy attorney general under President Richard Nixon resigned rather than follow Nixon’s order to fire the special prosecutor looking into Watergate.
“This is not about President Trump,” Graham said at the hearing. “This is about any president at any time in the future being able to be held accountable as an individual. There’s nothing more important to me than to say, without hesitation, that everybody in America, including the president, is under scrutiny when there is an allegation they may have done something wrong.”