- - Tuesday, August 15, 2017


Congress should enact legislation that would protect Special Counsel Robert Mueller from arbitrary firing by President Trump to short-circuit his investigation of alleged Russian government collusion with the Trump presidential campaign or related crimes.  It should resurrect the Independent Counsel Act.  

One Saturday Night Massacre is enough!

On October 20, 1973, President Richard Nixon ordered Attorney General Elliot Richardson to fire Special Prosecutor Archibald Cox for refusing to cease litigation over presidential tapes that implicated the President in the Watergate cover-up.  Mr. Cox had been appointed by the Attorney General under special guidelines to investigate and prosecute crimes involving the President, including authority to seek witness immunity or to contest assertions of testimonial privilege.  He could not be discharged “except for extraordinary improprieties.”

The Attorney General resigned rather than execute the President’s order.  Deputy Attorney General William Ruckelshaus also resigned after President Nixon’s Chief of Staff, Alexander Haig, Jr. said, “Your commander in chief has given you an order.”  Solicitor General Robert Bork did fire Cox, who parted with these prophetic words:  “Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people.”  President Nixon resigned on August 9, 1974 in the face of certain impeachment and removal from office for high crimes and misdemeanors.

Mr. Mueller was appointed Special Counsel by Deputy Attorney General Rod Rosenstein to investigate alleged collusion between the Russian government and the Trump presidential campaign.  (To solicit or receive anything of value from a foreign government to advance a presidential campaign is a federal crime).   

President Trump has repeatedly fumed at the appointment.  Among other things, the President has insinuated Mueller would be fired if he investigated his finances.  He has condemned Mueller’s investigation is a “witch hunt.”  He has assailed Mueller and his staff for alleged bias and conflicts of interest.  And he has suggested Deputy Attorney General Rosenstein is prejudiced against him because he hails from Baltimore, a city with few Republicans.  Additionally, Mr. Trump apparently told Russian officials in the Oval Office, “I just fired the head of the F.B.I. [James Comey]. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.”      

In response to the Sword of Damocles over Mueller’s head, Senators Tom Tillis (R-S.C.) and Senator Chris Coons (D-Del.) have introduced a bill that would authorize the Special Counsel to obtain speedy judicial review of any order to discharge him.  It would also prohibit Mueller’s removal except for “misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violation of policies of the Department of Justice.”

Senators Lindsey Graham (R-S.C.), Cory Booker (D-N.J.), Richard Blumenthal (D-Conn.) and Sheldon Whitehouse (D-R.I.) have introduced legislation that would prohibit Mueller’s firing without a finding of “good cause” by an Article III court.

Neither bill, however, would prohibit President Trump from disposing of Mueller by abolishing his office and leaving him without a job.  The United States Supreme Court sharply distinguished between removing an appointee from office as opposed to abolishing the office itself in Stuart v .Laird (1803). It upheld the abolition of 16 federal judgeships which left their occupants without jobs.
Congress should go further than the two pending bills to prevent another Saturday Night Massacre.  It should revive the Independent Counsel Act that empowered a three-judge court to appoint an independent counsel to investigate credible allegations of criminal wrongdoing by the President or his inner circle.  The statute lapsed in 1999 because both Democrats and Republicans feared a prosecutor operating outside partisan political restraints.  

The Office of Independent Counsel is far from perfect.  Prosecutors may be deflected from justice in pursuit of fame and remembrance.   But experience shows that the far greater danger is a de facto immunity of the politically powerful from the rule of law because of a politically compromised Department of Justice.    

As a Chinese proverb instructs, “The fish rots from the head.”

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