With Donald Trump explicitly attacking special counsel Robert Mueller on Twitter, and Trump’s lawyer calling for Mueller’s investigation to be ended, it’s clear that the investigation is in serious danger. But while a few Republicans have offered tepid support for Mueller’s independence, Republicans in general and the top congressional Republicans in particular are standing back, offering no serious warning to Trump to back off and let Mueller complete his inquiry. This is appalling even by the appalling standards of today’s Republican Party, especially because bipartisan bills to protect Mueller from being unilaterally fired by Trump already exist. It’s time—it’s past time—to pass such a bill.
Let’s be clear: that’s not to protect Mueller from firing for any cause, however justified. It’s to protect him from being fired for an illegitimate reason. Lawfare’s Steve Vladeck explains:
There are actually two different legislative proposals on the table to deal with this problem. Although they differ slightly in their particulars, they have the same basic structure: Both bills would allow a Special Counsel terminated under §600.7(d) to challenge his termination before a “three-judge” D.C. district court (which would include two federal district judges for the District of Columbia and one judge from the U.S. Court of Appeals for the D.C. Circuit). That three-judge court, in turn, would be able to decide if the substantive standard set out in §600.7(d) had been satisfied. Like all other decisions by three-judge district courts, whoever loses would have a right of mandatory (not discretionary) appeal directly to the Supreme Court. And that’s it. As I wrote in January, “[t]he bills don’t change the procedural or substantive rules governing the special counsel’s authority, or the grounds on which he can be fired; they simply ensure a role for the courts in reviewing any dismissal to make sure it’s done for the right reasons and not the wrong ones.”
For detailed legal analysis, check out Vladeck’s full post, but here’s a key point:
It’s far less likely that whoever would otherwise be swinging the axe toward Mueller would do so for blatantly inappropriate reasons if they knew there was even the specter of judicial review. And if somehow the dismissal were undisputedly for good cause, presumably Mueller wouldn’t turn around and bring suit. So conceived, the particular genius of the Mueller protection bills is that, if they’re enacted, the judicial procedure they would create would almost certainly never have to be utilized.
That may be slightly over-optimistic about Trump’s self-control or the ability of those surrounding him to control him—the fact that he’ll be taken to court and his bad acts exposed rarely seems to have stopped him before now—but the existence of such a law would be a much, much better deterrent than House Speaker Paul Ryan having a spokesperson respond to Trump’s outrageous attack on Mueller by saying that “As the speaker has always said, Mr. Mueller and his team should be able to do their job.”
It’s time. Republicans are on the brink of losing their last shred of moral standing on anything having to do with Donald Trump. They could reclaim a little bit of it by passing a bill protecting Mueller’s investigation.