Any effort by Congress to limit the authority of a sitting President, or even to protect the job of a person who is part of the Executive branch, is subject to the “political question” doctrine. This would be a difficult hurdle for such a Congressional enactment to clear. Specifically, a Congressional enactment that seeks to shield Robert Mueller, the Special Counsel appointed to investigate matters that include whether Russian intervention in the election affected the outcome of the election, from retributive action—i.e., being “fired”—by the current occupant of the Oval Office, probably will be challenged in court by someone at the direction of acting on that occupant’s behalf.
The claim would be Congress cannot interfere with actions of a President when those actions are within the Executive branch. Those actions generally are deemed “nonjusticiable”—they cannot be determined by a court.
The Federal government consists of three branches. The Framers made the branches distinct from one another. The Legislative branch (Congress, Art. I), the Executive branch (“The executive Power shall be vested in a President of the United States of America....” U.S. Constitution, Art. II, Sec. 1), and the Judicial branch (Art. III) are co-equal.
Mr. Mueller was appointed as Special Counsel, in May, by Deputy Attorney General Rod Rosenstein to oversee investigations into ties between the Trump campaign and Russia. The appointment was made under specific provisions of Federal law. 28 C.F.R. sec. 600, et seq. Special Counsel can be “removed” from office only by the Attorney General of the United States:
“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.”
28 C.F.R. 600.7(d).
The Attorney General is subject to summary dismissal by the President. In 1973, President Richard Nixon ordered Attorney General Elliott Richardson to fire Special Prosecutor Archibald Cox because Cox wanted tapes and transcripts from the Oval Office in the course of Cox’s investigation into Watergate. When Richardson refused to fire Cox, Nixon fired Richardson. Nixon then ordered Deputy A.G. William Ruckelshaus to fire Cox. When Ruckelshaus refused, Nixon fired Ruckelshaus. Nixon then ordered Robert Bork, the Solicitor General, to fire Cox. Bork carried out the directive.
The Special Prosecutor statute expired, but had provisions for dismissal of the person in this office is similar to the provisions for dismissal of Special Counsel.
When disputes arise within one of the three branches of government, the inclination is to allow that branch to resolve those disputes itself. (Basically? “If there are disputes in our place, WE take care of them.” If the President has a beef with the A.G., the President can fire the A.G. If one of the houses of Congress has a mess about its rules, it is for that house of Congress to handle the mess.) This is the essence of the “political question” doctrine under which a dispute may be deemed “nonjusticiable”—i.e., not subject to review by the courts.
The political question doctrine is “essentially a function of the separation of powers ... which recognizes the limits that Article III imposes upon courts and accords appropriate respect to the other branches’ exercise of their own constitutional powers.” Zivotofsky ex rel Zivotofsky v. Clinton, 556 U.S. 189, 202 (2012), Sotomayor, J., concurring.
If there is to be an independent investigation of the administration of any sitting President, that investigation is not “independent”—“not subject to another’s authority or jurisdiction; autonomous; free” American College Dictionary, 1962 ed., p. 616—if conducted by a person subject to dismissal by that President. President Nixon understood the Constitution and respected it, at least to the extent that he did not ignore the ruling of the Court. Ultimately, he resigned.
Respect for the Constitution is not something the current occupant of the Oval Office appears to hold as a value. He has cited sections of the Constitution that do not exist. He refers to generals as “my generals.”
Sadly, it seems the producers of “The Apprentice” determined, for the star of that show and the current occupant of the Oval Office, to what persons he would say: “You’re fired.” He might not decide to utter that phrase to the Deputy Attorney General—Attorney General Jeff Sessions earlier had recused himself from any matters related to the investigation of campaign ties to Russia—if the Deputy A.G. demurs in a directive to fire Special Counsel Mueller. That decision might be made in St. Petersburg—and not St. Petersburg, Florida.
A truly independent investigation cannot be conducted by Mr. Mueller, despite how competent and well-meaning he might be. His investigation will consume time.
Neither can Congress conduct an independent investigation, as I will explore tomorrow.
A Special Master should be appointed by the United States Supreme Court, as has been requested in Bailey, et al v. United States, docket number 16-1464, and set for conference at the Supreme Court on September 25.
Necessary disclosure: I am counsel for the Petitioners in that case.