Jurisprudence

How to Pre-Empt a Constitutional Crisis

Cory Booker explains why a law is needed to protect Robert Mueller.

Special counsel Robert Mueller leaves following a meeting with members of the Senate Judiciary Committee in Washington on June 21.
Special counsel Robert Mueller leaves following a meeting with members of the Senate Judiciary Committee in Washington on June 21.
Saul Loeb/AFP/Getty Images

Two weeks ago, Donald Trump started to make those noises he sometimes makes when he feels like he wants to fire special counsel Robert Mueller. Republican Sens. Lindsey Graham, John McCain, Jeff Flake, and Chuck Grassley issued warnings that Mueller should not be removed. Graham suggested that the dismissal of Mueller would likely be an impeachable offense and would also trigger a constitutional crisis. Even Sen. Mitch McConnell, after several days of sober pondering, said that “Bob Mueller should be allowed to finish his job.”

So far, these Republicans have been all talk and no action. There are fixes they could implement. Four bills—two in the Senate and two in the House of Representatives—have been introduced to curtail the president’s power to unilaterally fire the special counsel. The two Senate efforts to protect Mueller from Trump’s capricious temper were introduced months ago. One bill, sponsored by Graham and New Jersey Democrat Cory Booker with support from Democrats Sheldon Whitehouse and Richard Blumenthal, wouldn’t allow a termination to proceed without the approval of a three-judge panel. Another, brought forward by North Carolina Republican Thom Tillis and Delaware Democrat Chris Coons, would allow such a panel to review the decision after the firing had already gone through.

As Politico notes, the Tillis–Coons bill and the Graham-Booker bill “must be merged … before the Senate Judiciary Committee can consider it. The Judiciary panel’s chairman, Sen. Chuck Grassley (R–Iowa), has yet to publicly support either version pending ongoing talks on combining the plans.” Grassley has also suggested that these efforts to constrain the president might be unconstitutional.

Even though this bipartisan legislation exists, few on the GOP side seem to be pushing for it. “I don’t think there’s any need for that,” Graham noted. “I’ve got zero concerns that the president or his team is going to fire Mueller.” Dianne Feinstein, the leading Democrat on the Senate Judiciary Committee, also isn’t certain such legislation is necessary: “I don’t think we need it. … I was listening to various comments even from Republicans like Trey Gowdy. And people felt very strongly it would be a major breach for the president to fire Mr. Mueller. I agree with that.”

In the midst of the thundering GOP insistence that there is no way Donald Trump would ever do anything nutty, Tillis and Coons issued a joint statement Tuesday pushing the president to let the investigation go forward. “We urge President Trump to allow the Special Counsel to complete his work without impediment, which is in the best interest of the American people, the President, and our nation,” they said. Also on Tuesday, Blumenthal and eight other Democrats on the Senate Judiciary Committee sent a letter to five Justice Department officials asking for their commitment to protect Mueller in the event the president moves against him while Congress is out of town for a two-week break. On MSNBC, Blumenthal suggested the letter had been prompted by “swirling,” “unconfirmed” reports that the president may be considering firing Mueller.

I reached out via email to Booker to try to figure out how these two proposed bills might be consolidated and why this inaction has persisted. Our conversation, which has been condensed and edited for clarity, is below.

Dahlia Lithwick: The main difference between the legislation you’ve co-sponsored with Sen. Graham—the Special Counsel Independence Protection Act—and the Coons–Tillis proposal seems to be that your bill would require the attorney general to file an action in the United States District Court for the District of Columbia before removing the special counsel, whereas the Coons–Tillis plan allows the special counsel to challenge his dismissal in court after the fact. Are there any other major differences?

Cory Booker: There are some other nuanced differences, but yes, requiring judicial review to ensure a firing is made for cause versus providing a cause of action for the special counsel to challenge his or her termination after the fact is the primary difference.

What’s your answer to the question about whether these laws are unconstitutional? Some conservative scholars are advancing this claimciting Morrison v. Olson (a 1988 Supreme Court case about the constitutionality of the independent counsel law) and theories about the unitary executive.

In the fall, the Senate Judiciary Committee held a hearing on the constitutionality of the two special counsel bills, which included testimony by legal scholars and experts on the constitutionality of our bill. I’m confident our bill is constitutional under Morrison v. Olson. That case involved the challenge of the independent counsel provision in the Ethics in Government Act. The Supreme Court held that Congress may require a three-judge panel to appoint a special counsel because he or she is an inferior officer. Under that construct, we similarly believe Congress may involve a three-judge panel in the termination of a special counsel. The bottom line is Morrison v. Olson is still good law and we drafted our bill with that in mind. There are plenty of constitutional scholars who agree that our bill is on firm constitutional footing.

The primary response to your legislation from your GOP counterparts, including the co-sponsors, seems to fall into two general classes: (1) It’s not needed because Trump won’t dare fire Mueller; and (2) it’s not needed because if Trump does fire Mueller they will bring down the wrath of the Senate upon him. I understand that they are pinched between public opinion and their obligation to protect the special counsel, but I find each of these rationales about equally implausible. You?

According to press reports, President Trump already tried once to fire special counsel Mueller. We just cannot trust the president to do the right thing here, especially considering how he has ratcheted up his criticism of the special counsel’s investigation. And to address your second point, I have yet to see the Republican-controlled Congress stand up to President Trump. I’m talking to colleagues every chance I have, trying to convince them that too much is at stake to allow for unknowns to remain when options are available to cut this potential crisis off at the pass. It just doesn’t make sense to me why we should not act now.

What’s a constitutional crisis, in your view? Are we in one now? Will we be in one if Mueller is fired? Will we be in one if he is fired and the Congress fails to react? 

If special counsel Mueller is fired, we will be in a constitutional crisis. Our system of governance will not be functioning as it should and the president will feel as if he can act with impunity. That is a dangerous situation for our country and we must avoid it at all costs.