We Need Special Court Procedure for the Removal of Special Counsels

As President Trump intensifies his attacks on Special Counsel Robert Mueller, his critics intensify their calls on Congress to legislate statutory removal protections limiting the president’s and Justice Department’s ability to fire Mueller. Such a legislative push is probably futile—and rightly so. Instead, Congress should focus on another aspect of this issue: namely, legislating the process by which the courts would hear a lawsuit challenging the firing of a special counsel. Legislation on the process is less constitutionally problematic, less politically divisive, and every bit as urgently needed.

So far, two major legislative proposals have attracted attention primarily because they specify the substantive standard under which a special counsel could be fired. Sens. Lindsey Graham and Cory Booker’s Special Counsel Independence Protection Act would allow the special counsel to be fired only for “misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violation of policies of the Department of Justice” (and only upon a court order). The same standard would apply under Sens. Thom Tillis and Chris Coons’s Special Counsel Integrity Act, although the latter bill specifically restricts the removal power to the Attorney General. These bills would cement into legislation the removal standard that are currently imposed merely by Justice Department regulations, and thus would prevent the department from unilaterally repealing the special counsel’s removal protection.

Congress is not going to pass either of these bills anytime soon. Even Graham and Tillis have both downplayed the urgency of their own legislation. Such caution is well warranted, given that the legislative imposition of substantive removal standards for an officer of this nature raises serious constitutional questions. As the Supreme Court recognized as early as Myers v. United States, the Constitution largely protects the president’s power to fire executive officers at will, in order to ensure that the president, vested with the Constitution’s “executive power,” is able to undertake his obligation to “take Care that the laws be faithfully executed.” While the Supreme Court later recognized exceptions to this basic rule—for quasi-judicial/legislative commissions like the FTC in Humphrey’s Executor v. U.S. and Wiener v. U.S., and for independent counsels of narrowly limited jurisdiction in Morrison v. Olson—the court has never allowed Congress to limit the president’s power to remove an officer with powers as broad as Mueller. Constitutional law scholar Akhil Amar summarized the legislation’s constitutional problems well in his Senate testimony last autumn:

The Morrison Court held that even though independent counsel Alexia Morrison was insulated from at-will removal, she was nonetheless an inferior officer in part because of the small scope of her investigation. Basically, she was focused on only one person, who was out of government at the time: Ted Olson. In contrast, Robert Mueller is apparently investigating the President of the United States for possible obstruction of justice in firing the Director of the FBI, as well as at several other people involved in a major national scandal, which involves alleged Russian tampering with a presidential election. The Mueller investigation is thus vastly wider and more consequential for the republic than was Alexia Morrison’s.

When Morrison was originally decided, Justice Antonin Scalia dissented loudly, urging that removal restrictions for any executive officer are inherently unconstitutional. In the intervening 30 years, many Democrats came to see the wisdom and prudence of Scalia’s dissent, especially during the independent counsel’s investigation of President Clinton, as Linda Greenhouse reported at the time. Today, it’s not hard to imagine five justices agreeing with his dissent and overturning the precedent; they could vindicate Adrian Vermeule’s suggestion, on this site last year, that “Morrison v. Olson is bad law.”

In short, it is good for Senate Republicans to be reluctant to legislate statutory removal protections for the special counsel. No matter how credible the claims against President Trump may be—indeed, precisely because of the gravity of some of the claims—it would be a tragic mistake for Congress, in a burst of investigatory zeal, to violate the Constitution itself.

But that is not to say that Congress should do nothing. Congress may lack the authority to legislate substantive removal protections for the special counsel, but it does not lack the authority to legislate the procedural standards governing judicial review of his removal. Congress should begin to think seriously about enacting this latter form of legislation, instead of leaving such questions to be decided by the judges and litigants themselves, in the crucible of politically explosive litigation.

If the president fires Mueller, then a flurry of immensely consequential issues will arise. For example: Can a newly-appointed special counsel destroy the Mueller investigation’s files? Should a federal judge enjoin any actions pertaining to files? Can a newly-appointed special counsel take other actions that could have materially affect on the investigation?

Furthermore, a broader question will arise: Is the public interest served by allowing all such issues be decided in the first instance by a single federal judge, whose political affiliation—more specifically, the political affiliation of the president that appointed him—will be eyed with great suspicion by partisans favoring the other party.

Of course, such questions about the judicial process and partisanship arise in any major case. But they will be all the more explosive in a case like Mueller v. Trump. And they can be at least somewhat alleviated by Congress enacting a framework for litigation in advance, with bipartisan support.

Congress has broad power to structure the litigation process. The Constitution vested Congress with the power to establish the lower federal courts, which includes the power to set rules for the judicial process. As Publius observes in Federalist No. 83, “[a] power to constitute courts is a power to prescribe the mode of trial.”

That includes the power to prescribe the proper venue for particular classes of cases—something that both the Graham-Booker and Tillis-Coons Senate bills attempt to do, by requiring that cases reviewing the removal of a special counsel be filed before a three-judge district court under 28 U.S.C. 2284 with a right of direct appeal to the Supreme Court.

But there is much more that Congress can do. Congress can define which remedies the courts can or cannot grant litigants, as the court observed in Great-West Life Ins. & Annuity v. Knudson. Congress has sometimes elected to require the courts to preserve the status quo while litigation is pending, such as in the Bankruptcy Code’s “automatic stay” or the Individuals with Disabilities Education Act’s right to preliminary injunctive relief. Congress also sometimes requires courts to “expedite” judicial review of certain classes of cases (as Josh Blackman summarized last year), although courts sometimes interpret “expedite” rather generously. Congress should think seriously (and promptly) about legislating similar standards for judicial review of a fired special counsel’s challenge to his removal.

If you are skeptical, then imagine the day after a president fires a special counsel: there could be a race to the courthouse with the special counsel claiming that his removal fails to comply with the Justice Department’s regulations, or the Administration attempting to enjoin the special counsel’s staff from utilizing the investigation’s information, or witnesses seeking declaratory relief protecting them from further actions by Mueller’s team. With this would follow angst over who has custody of the special counsel’s investigation files; frustration with any judicial delay; and partisan outrage over any decision by a judge to either grant or withhold preliminary injunctive relief. And any case deciding the validity of the special counsel’s removal would be decided, in the first instance, by a single federal judge—a judge who will be praised as a national hero by one group of partisans, and denounced as a partisan hack by the other group of partisans. It will be a maelstrom engulfing not just the presidency, but also the judiciary.

To minimize the opportunity for fiasco, I recommend that Congress strike the balance in favor of stability and swiftness. For example:

Venue — Any lawsuit challenging the removal of a special counsel should be filed before a three-judge district court in the District of Columbia, under 28 U.S.C. 2284, with a right of direct appeal to the Supreme Court.

Timing — Congress should require the district court to afford “expedited” review of such cases. It is a vague term, of course, but at least it gives the court some indication of Congress’s intent. Going further—specifying a specific deadline for a decision—would not be unprecedented, but it would raise the difficult question of requiring Congress to decide in advance which side would be the default winner if the court does not decide the case before the deadline expires.

Preliminary Relief — Congress should legislate an automatic stay, requiring the parties to preserve all materials produced or held by the special counsel’s investigation for the duration of judicial review, including any appeals, and it should expressly empower the courts to ensure that all such materials are being preserved.

Note that all of this is agnostic as to the actual substantive legal issues that would be litigated in Mueller v. Trump (or any case involving a future president and future special counsel). It merely establishes a more stable, transparent framework for judicial review, rather than requiring such questions to be decided on-the-fly by a single federal judge—and it would have greater democratic legitimacy of an act of Congress, instead of an act of a single federal judge. As of now, removal of special counsels is governed by the Justice Department regulations, at least to the extent that those regulations are not themselves unconstitutional or subject to the president’s own superseding authority; as Jack Goldsmith observed last year, there are good constitutional arguments on both sides of that dispute. Even if the Justice Department regulations are lawful, binding, and immune to presidential nullification, there would still be litigation to determine what actually constitutes “misconduct, dereliction of duty, incapacity, conflict of interest, or ... other good cause” within the meaning of the regulations, and whether that standard has been met in the case of the particular special counsel.

If a president someday fires a special counsel, then resolving those legal questions will be hard enough for the courts and the country. Congress can at least make the subsequent litigation more transparent, stable and orderly by legislating the framework for judicial review. And Congress should do this long before a special counsel is fired and chaos ensues.