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Editorial: Congress should protect independence of special counsel

 
Robert Mueller on February 16, 2011, as he testifies before a Senate Intelligence Committee hearing in Washington, D.C. (James Berglie/Zuma Press/TNS) 1228695
Robert Mueller on February 16, 2011, as he testifies before a Senate Intelligence Committee hearing in Washington, D.C. (James Berglie/Zuma Press/TNS) 1228695
Published April 17, 2018

A bipartisan Senate bill clarifying that only the attorney general or a high-ranking designee could remove a special prosecutor would send an important message amid President Donald Trump's attacks on the investigation into Russia's interference with the 2016 election. The legislation would bolster the independence of special prosecutors, clarify the limits of presidential authority over them and provide the courts with an appropriate role to protect due process. It also could help reduce the politics overshadowing these investigations and better prevent an impulsive president from triggering a constitutional crisis.

The bill, which could be taken up as early as Thursday by the Senate Judiciary Committee, has been months in the making. But it reflects growing concerns that Trump is poised to fire Robert Mueller, who was appointed as special counsel to investigate the allegations of Russian meddling in the election after Jeff Sessions, the attorney general and Trump campaign supporter, recused himself. Trump has delivered a series of withering tweets blasting the probe and criticizing Mueller by name, claiming with zero evidence that Mueller is the "most conflicted of all" and denigrating prosecutors involved in the investigation as a "den of thieves and liars."

The legislation, co-sponsored by Sens. Lindsey Graham, R-S.C.; Thom Tillis, R-N.C; Cory Booker, D-N.J.; and Chris Coons, D-Del., incorporates several key proposals. It clarifies that only the attorney general, or a high-ranking designee also confirmed by the Senate, may fire a special counsel. The special counsel could be fired only for dereliction of duty, misconduct, a conflict of interest "or other good cause." They would be notified in writing, and they could seek an expedited hearing to challenge the action. As a backstop, a three-judge panel could void a firing or provide "other appropriate relief."

The legislation would clear up some uncertainty involving the office of special counsel, which currently is managed under a complicated interplay of Justice Department regulations, federal statutes and constitutional law. Under Justice Department rules, only the attorney general may remove special counsel. In in this situation, that authority falls to Deputy Attorney General Rod Rosenstein, who took control of the Russia probe after Sessions recused himself. The regulations also require good cause for firing Mueller. Codifying those rules in federal statutes makes sense. It brings the right balance to the oversight of a special counsel, removes the White House from the direct chain of command and keeps the investigation as independent as possible.

Sen. Bill Nelson supports the legislation. Gov. Rick Scott, who is challenging Nelson this year, declined to offer his opinion last week, though he said Saturday he would not fire Mueller. Sen. Marco Rubio's office did not return an email seeking comment.

This should be an easy call. The special counsel needs clear statutory protection to maintain the independence necessary for a credible investigation. This bill protects every president from his worst instincts, and it promotes the principle that no American is above the law. The Senate should advance the bill and the House should move similar legislation.