Carl Bernstein, half of The Washington Post duo that broke the Watergate story, calls Donald Trump's presidency "worse than Watergate." Elizabeth Drew, who covered Watergate for the New Yorker, writes "Trump Is Worse Than Nixon."
Echoing the alarm that led Congress, after Watergate, to create the independent counsel role, some members of Congress have responded to the current worse-than-Watergate sentiment in part by pushing for a law to shield Special Counsel Robert Mueller from being fired before he can complete his investigation of activities involving Trump and a number of his advisors. In April, Sen. Patrick Leahy, D-Vt., called for the law's passage out of concern "that the walls protecting the independence and integrity of our law enforcement institutions are at risk of crumbling." This week, Sen. Chris Coons, D-Del., said the law "is the easiest way possible to prevent an entirely predictable constitutional crisis" that would be prompted by Mueller's firing.
It's clear they see this as an urgent priority. And if Mueller's investigation ultimately reveals more criminal activity by more members of the president's inner circle than it already has, that will demonstrate just how essential the special counsel team's efforts will have been to safeguard our system. But if Congress did pass the Special Counsel Independence and Integrity Act, it could wind up violating the Constitution and damaging a pillar of American democracy - the power of the presidency.
President Donald Trump attacks press freedoms, degrades federal law enforcement, undercuts his own intelligence agencies, equivocated on white supremacist violence in Charlottesville, refuses to untangle his role as head of government from his ongoing private business interests, and is suspected of having at least tacitly accepted the help of Russia in securing his 2016 win and then avoiding addressing the threat posed by foreign intervention in our elections. Defending our system and norms in the courts, in Congress and in the mind of public is, indeed, paramount.
But we should take care not to weaken them inadvertently in the process. Take the law currently under consideration in the Senate. Its aims are, at first blush, logical: add a barrier between Mueller and a president who's already fired the FBI director he inherited and replaced his hand-picked attorney general with an acting attorney general who has openly criticized Mueller's investigation. The proposed law purports to stop a president from firing a special counsel without "good cause" and provides for a special counsel to "challenge the removal in federal court."
It sounds reasonable, but it's likely unconstitutional. In our system, those who qualify as "officers" under Article II, Section 2 of the Constitution must answer to the president and, by extension, the will of the voters. For years, courts have gone back and forth trying to determine who qualifies as an officer, but the special counsel exercises a level of authority that seems to meet the test. As the Supreme Court has explained in capacious terms (and reaffirmed in a decision earlier this year), "any appointee exercising significant authority pursuant to the laws of the United States is an 'Officer of the United States.'" Along these lines, the special counsel is not an everyday civil servant who can (or should) be granted certain statutory protections from firing; instead, he's an important decision-maker who ultimately serves at the pleasure of a president, even one whose campaign activities he's investigating. (The Supreme Court has carved out from this constitutional principle those who serve on multimember independent regulatory agencies but the Department of Justice isn't one of those.)
Mueller should be allowed to complete his work. To that end, I worked with 22 former United States attorneys who wrote to Trump last year to stress how "critical" Mueller's work is "to the interests of justice and public trust." But a law exceeding constitutional bounds isn't the way to make sure that his work continues. That's instead laying a mine that could explode in the future: Another president might one day find himself (or herself) unable to remove an official exercising significant authority on behalf of the executive branch but no longer answering to the president charged with running that branch. It might be a different special counsel pursuing an actual witch hunt against a different president, not the notional "witch hunt" Trump routinely conjures.
If the special counsel law were to pass, who's to say that a similar law applying more broadly wouldn't pass? That could set up a situation in which a sub-cabinet-level official - an assistant attorney general or under secretary of defense, let's say - acting unilaterally and contrary to the president's direction could be shielded from dismissal because there's no way, short of litigation, to determine if he or she is being removed for good cause. Not only could that litigation produce a protracted period of uncertainty as to who is entitled to exercise authority on behalf of the federal government, but it's unclear what a court would view as good cause in this context. One worrisome scenario: operating at odds with the president might not, on its own, qualify as good cause for firing. After all, if it did, then the legislation now under consideration wouldn't do anything to protect Mueller from a president who's made clear his opposition to Mueller's work.
Essential to keeping government responsive to the will of the people is maintenance of the president's authority over the executive branch and the president's corresponding ability to fire officers who work for him. As the only elected official voted on by citizens of every state and the District of Columbia (though not certain U.S. territories) it's the president who reflects (ideally, at least) all Americans' democratic input, and the officers who work for him are responsive to us, the body politic, only if the president can remove them should they no longer answer to him.
If all this sounds hypothetical, recall Independent Counsel Kenneth Starr, who pursued a capricious, protracted investigation yielding impeachment proceedings against President Bill Clinton that left the country bitterly divided and distracted from important issues of governance. Though the Supreme Court had held, in the 1988 case, Morrison v. Olson , that the independent counsel statute's protection of the independent counsel from firing, absent good cause, was proper because "the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority," Congress saw the independent counsel statute's flaws on full display in Starr's work and, in 1999, let it expire. But the damage to our politics unleashed by the independent counsel law had already been done. Even former House speaker Newt Gingrich, who oversaw Clinton's impeachment, more or less concedes that those proceedings wrought the continued polarization and congressional gridlock afflicting us today.
The independent counsel statute was wrong when passed - Yale Law School's Akhil Reed Amar rightly calls it a "constitutional monstrosity" - and proved dangerous later; and the current push to beef up, via statute, the special counsel role written into regulation by the Justice Department (and thus revocable by the president) would be a mistake now that carries similar risk. The idea that Congress can curtail the president's power to remove a subordinate officer, even a subordinate who is investigating the president, is a perversion of the constitutional separation of powers. Legal scholars Eric Posner and Stephen Vladeck have defended the proposed law by noting that the special counsel should be considered an "inferior officer" (with which I agree) and arguing that, technically, Morrison remains on the books, adding that the attorney general retains oversight of the special counsel. But, as Amar notes, a later Supreme Court decision, Edmond v. United States, in effect overruled Morrison, making clear along the way that oversight of an inferior officer's work, rather than authority over that officer himself, simply doesn't cut it under the Constitution.
The same goes for Trump's replacement of former attorney general Jeff Sessions - who, to the president's extreme disapproval, recused himself from overseeing Mueller's investigation - with Acting Attorney General Matthew Whitaker. He's a bad choice to lead the Justice Department given his attacks on the special counsel's work, bizarre denunciation of judicial review and possible ethical conflicts. But the Senate Democrats who've gone to court seeking to challenge Whitaker's appointment, based in part on an inscrutable argument that Senate confirmation for some other position somehow makes an individual constitutionally fit to serve as acting attorney general in ways Whitaker supposedly isn't, overstep their bounds. Sen. Sheldon Whitehouse, D-R.I., has said, "The stakes are too high to allow the president to install an unconfirmed lackey to lead the Department of Justice." But it's long been assumed that presidents have the constitutional authority to appoint without Senate confirmation, for a short period and while acting in good faith to find a proper permanent appointee, individuals to cabinet-level posts that otherwise require Senate confirmation - what the Constitution describes as a "principal officer." It's not only essential to keeping our government responsive to the people but also consistent with a statute passed by Congress dealing with the powers of a president to fill temporarily high-level positions open in the executive branch. In other words, there's no legal bar here to appointing a "lackey."
Trump is dangerous. And, as Mueller's probe continues and his findings draw increased attention, it's likely there will be renewed calls to protect him, statutorily, from firing. But that would be a mistake. Americans, and our representatives, must ensure that our defense against that danger doesn't undermine the very system we want to protect. Congress certainly plays a critical role in checking the power of the president, and now that Democrats are in the House majority, they can and should investigate legitimate accusations of malfeasance on the part of members of the administration. But there's a difference between checking the president and usurping his enumerated powers. We must protect our country. We'd be unwise to do it by eroding the Constitution.
Joshua A. Geltzer
Joshua A. Geltzer, formerly senior director for counterterrorism and deputy legal adviser at the National Security Council, is executive director and visiting professor of law at Georgetown’s Institute for Constitutional Advocacy and Protection.