//  8/7/17  //  In-Depth Analysis

On Thursday, two bipartisan groups of senators introduced legislation to afford Special Counsel Robert S. Mueller III greater protection against removal.  Senators Thom Tillis and Chris Coons introduced the Special Counsel Integrity Act.  Meanwhile, Senators Lindsay Graham, Cory Booker, Sheldon Whitehouse, and Richard Blumenthal introduced the Special Counsel Independence Protection Act.  The Senators told the Washington Post that they may merge their efforts when the Senate reconvenes in September, to produce a single bill.  They also expressed confidence that there is sufficient bipartisan support to enact such a law over the President’s veto (although of course that remains to be seen).

In this post, I’ll briefly describe what each of the two proposals would do, and identify possible problems in each that the Senators ought to think about addressing when they return in September.  For sake of convenience, I’ll refer to them as the Tillis and Graham proposals, respectively.

For starters, where do things stand now?  Attorney General Jeff Sessions is recused from the Russia investigation.  Deputy Attorney General–and, for these purposes, Acting Attorney General–Rod Rosenstein appointed Robert Mueller to be Special Counsel for that investigation.  Rosenstein specified that “Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.”  Rosenstein was referring there to most (but not all) of the regulations that Attorney General Reno promulgated in 1999, for the appointment of Special Counsels from outside the Department of Justice.  Most importantly for present purposes, Section 600.7(d), which is, in Rosenstein’s words, “applicable” to Mueller, specifies how a Special Counsel can be removed from office:

The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

As I explained in an earlier post, pursuant to this regulation only the Attorney General–not the President–may remove Mueller, and then only for “good cause.”  Therefore, in order to have Mueller removed, President Trump would have to have in place an Attorney General who is willing either (i) to find that there is good cause to remove Mueller (which there almost certainly is not, from everything we know), or (ii) to rescind Section 600.7(d) and then fire Mueller “at will,” that is, without good cause.  As I further wrote, there’s no reason to think that Rod Rosenstein would do either of these things (indeed, he’s already indicated that he would not).  Therefore, in order to have Mueller removed, Trump would have to fire either Sessions or Rosenstein and replace that officer with someone who is willing to take either of those extraordinary steps. And that’s highly unlikely, as I previously argued.  Therefore I do not think there is any real need for a codification along the lines of the Graham and Tillis proposals (let alone a full-scale enactment of the DOJ regulations writ large, as Rick Pildes recommends).

Even so, I suppose a removal of Mueller is not entirely outside the realm of possibility.  And that’s where the two new bills come in.  The function of both the Tillis and Graham bills is to make such a move virtually impossible–that is, to effectively preclude DOJ from rescinding the removal reg, and to prevent an Attorney General from purporting to remove Mueller for “good cause” where no such cause exists.

The bills would accomplish the first function by codifying Section 600.7(d)’s “good cause” removal criterion.  The Tillis bill would also expressly codify the requirement that the Special Counsel can be removed only by the Attorney General–which, I’ve explained, is already an implied statutory limitation, because the removal authority is tied to the appointment authority unless Congress otherwise specifies.  (Section 2(c) of the Graham bill does not quite say that the Attorney General has the removal authority–but Section 2(a) does provide that removal can occur only, at a minimum, if the Attorney General thinks it should.)

Both bills go one important step further than the existing regs, too.  Under the regulations, if the AG removes a Special Counsel, that removed officer has no recourse to challenge the removal:  Section 600.10 provides that the regs “do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.”  The Tillis and Graham bills, by contrast, would provide a form of judicial review of any removal for “good cause”:  The Tillis bill would permit Mueller to appeal removal to a three-judge court, which would make its own determination whether there was good cause.  The Graham bill, by contrast, would only allow removal of Mueller after a three-judge court has previously confirmed the Attorney General’s finding of good cause, upon the AG’s application to the court.

The three principal features of the bills–(i) confirming the Attorney General’s exclusive removal authority; (ii) codifying the regulation’s “good cause” standard for removal; and (iii) providing for judicial review of the good-cause determination–are, I think, unproblematic and constitutional.  Some have suggested that the codification of a “good cause” standard for removal might raise serious constitutional doubts because it’s unclear whether the Court would reaffirm Morrison v. Olson.  I do not think that’s very likely:  The fact that many people came to see the Independent Counsel Act as a bad idea–including for some of the reasons described by Justice Scalia in his lone Morrison dissent–does not mean that they think it was unconstitutional.  Moreover, as Rick Pildes explains, the Attorney General retains far more control over the Special Counsel under the DOJ regulations than he did with respect to the “Independent Counsel” under the ICA–both at the appointment stage and in terms of overseeing the investigation.  Such control ought to be more than sufficient to sustain the constitutionality of a statutory “good cause” removal requirement, even for jurists who are skeptical of all or parts of Chief Justice Rehnquist’s opinion in Morrison.

Nevertheless, there are a few possible problems or ambiguities in the two bills that warrant further attention and careful consideration before Congress votes on them.

1. Of greatest practical importance, it is not clear that either bill, particularly the Tillis bill, would actually accomplish what it is designed to do–namely, protect against an unwarranted removal of Bob Mueller.  This problem is the result of imprecise wording in the bills.

This potential problem is less serious in the Graham bill, which applies to a “special counsel appointed by the Attorney General.”  That probably covers Mueller, because Rosenstein was acting in his capacity as “Acting Attorney General” when he made the appointment.  Just to be safe, however, Graham, et al., should probably add “or by the Acting Attorney General.”

The Tillis bill, however, by its terms applies only to a “special counsel appointed under Department of Justice regulations“–and it’s not obvious that Mueller was appointed under the DOJ regs.  To be sure, Rosenstein specified that some of those regs–Sections 600.4 through 600.10–“are applicable to the Special Counsel.”  In his appointment order, however, Rosenstein did not say that he was appointing Mueller pursuant to, or “under,” the regulations–instead, he cited only statutory authorities, and he did not cite the provision of the regulations, Section 600.1, that governs the appointment of a Special Counsel from outside the Department.  This probably made sense, because Section 600.1 appears to provide for appointment of a Special Counsel only for a criminal investigation, whereas the Russia investigation is principally, or at least in part, a counterintelligenceinvestigation, and the Special Counsel regulations do not speak to such an investigation.

Rosenstein‘s appointment expressly authorizes Mueller to “conduct the investigation confirmed by then-FBI Director James S. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).”  The FBI investigation that Comey “confirmed” in his March testimony, in turn–the investigation Mueller was appointed to conduct–was this:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

As the last sentence of that passage indicates, Mueller’s investigation is, in part, a criminal investigation. But it is also–indeed, perhaps first and foremost–a counterintelligence investigation, and the DOJ regs do not authorize (not expressly, at least) appointment of a Special Counsel for a counterintelligence investigation.  Hence, Rosenstein arguably did not appoint Mueller pursuant to, or “under,” the regulations.  And if that’s right, then the Tillis bill would not apply to Mueller.

This problem is easily fixable when the Senators merge their efforts:  They should simply adopt a version of the Graham bill’s trigger for coverage, such as:  “a special counsel appointed by the Attorney General or by the Acting Attorney General.”

2. Section 2(a) of the Tillis bill provides that the Special Counsel may be removed “only by the personal action of an Attorney General who has been confirmed by the Senate, or, if the Attorney General is recused from the matter, the most senior Department of Justice official who has been confirmed by the Senate and is not recused from the matter.”  The purpose of this condition–that the removal can only be made by an official whom the Senate has confirmed–is presumably intended to preclude removal of a Special Counsel by an Attorney General who President Trump might appoint during a Senate recess.  (It’s also conceivable, albeit very unlikely, that a President might appoint an Acting Attorney General who has not been Senate-confirmed, either under the DOJ Succession statute or under the Vacancies Reform Act.)

Two possible concerns about this provision:  First, what if, at a particular time, the Attorney General is neither recused from the matter nor confirmed by the Senate?  In such a case, the provision, read literally, would appear to suggest that no one could remove the Special Counsel, even for the best of causes (e.g., if the Special Counsel is regularly violating the law).  This problem–surely not intended–is easily fixed, by amending the provision to read “only by the personal action of an Attorney General who has been confirmed by the Senate, or, if the Attorney General is recused from the matter or has not been confirmed by the Senate, the most senior Department of Justice official who has been confirmed by the Senate and is not recused from the matter.”

Second, if the Senate-confirmation condition, as so amended, remains a term of the Tillis/Graham bill, I don’t see any constitutional problem with it.  Nevertheless, it would be a fairly novel sort of provision–one that would permit a lower-level, “inferior” officer who is not the head of a department to remove an inferior officer (the Special Counsel), even though that removed officer was appointed by the department head–which might raise concerns with some judges or Justices if it were ever implemented over the objection of a non-Senate-confirmed Attorney General.  Therefore the sponsors might want to think twice about it, especially because this limitation is probably no longer necessary–not for now, anyway–given that the Senate has decided to hold pro formasessions during its recess that will preclude any possibility of a recess appointment if Trump were to remove Sessions or Rosenstein.

3.  The Graham bill’s judicial-review is novel and therefore might raise a constitutional question.  Section 2(a) of that bill provides that a Special Counsel may only be removed if the Attorney General first “files an action in the United States District Court for the District of Columbia,” and Section 2(b), in turn, provides that a three-judge court shall hear and determine any such “action.”  Section 2(c) then provides that the removal can occur “only after the court has issued an order finding misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violation of policies of the Department of Justice.”  Reading these provisions together, it appears that the “action” the AG would file in the court is supposed to be an application for the court to issue an “order finding” good cause for removal.  (A minor matter:  It would be best not to leave this to implication.  Senator Graham should amend Section 2(a) to specify the nature of the “action” the Attorney General must file.)

It is not entirely unprecedented for Congress (or the Constitution) to authorize an Executive to act only if he or she first receives judicial certification that the action would be lawful.  The most familiar analogy, perhaps, is the Fourth Amendment rule requiring a judicial warrant to conduct certain searches and seizures, or the statutory requirement of judicial approval before the Executive can engage in certain collections of information under FISA. More strikingly, the Militia Act of 1792 provided that the President could only call forth the militia to stop an insurrection if he first received a judicial certification that the wrongdoers were “too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals.” So, for example, George Washington did not (and could not) act to suppress the Whiskey Rebellion in Pennsylvania until he sought and received certification from Supreme Court Justice James Wilson that it was necessary to call forth the militia.

Under the Graham bill, the Attorney General could not remove a Special Counsel until a court confirmed that there was good cause to do so.  Is that a constitutionally appropriate role for a federal court?  Well, if the search warrant, FISA, and Militia Act examples do not raise an Article III problem, then presumably this will not, either–especially because in this case, unlike those others, there presumably will be adversarial briefing and argument (between the AG and the Special Counsel).

There shouldn’t be an Article II objection, either, by virtue of giving the court some power to review the legality of a removal.  After all, there’s no question that after-the-fact judicial review of “good cause” (as in the Tillis bill) would be constitutionally acceptable.  (Interestingly, there are few, if any, historical examples of judicial review of a “good cause” determination for removal–a result of the fact that there are few, if any, examples where any officer has actually been removed pursuant to a finding of “good cause.”)

Even so, I am not aware of any historical examples where Congress has provided for ex ante judicial consideration of the grounds for the Executive’s proposed removal of an officer.  And the novelty of such a mechanism might give some judges or Justices pause–particularly, for instance, in an extreme case where judicial review would delay a removal that is of some urgency, such as where a Special Counsel was engaged in a regular course of violating the law.  (In such a hypothetical (but highly unlikely) case, the judicial review prerequisite might have the effect of precluding the President from taking care that the law is faithfully executed.  Pursuant to the Court’s decision in Morrison v. Olson, therefore, the requirement of a judicial finding of good cause before removal might be unconstitutional in that case.)

Accordingly, if the Senators want to play it safe, they’ll opt for the Tillis version–with judicial review (and possible reinstatement) after removal.  The Graham provision for pre-removal adjudication, however, should also be kosher, at least in the vast majority of cases, unless the Court were to recognize some new species of constitutional limitation.

 

Cross-posted at Just Security


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