Daniel Hemel on the Legality of Bills to Protect Mueller

So if Trump Fires Mueller, the Republicans Will Do… What, Exactly?

The two bills specifically provide for the following. The first, by Cory Booker and Lindsey Graham, would require a panel of three federal judges to review a proposed firing of a special counsel before it could be finalized. The second, by Democrat Chris Coons and Republican Thom Tillis, would allow a fired special counsel to appeal the firing to a three-judge federal panel.

What’s the difference, you ask? It’s that the first bill could possibly be seen as the legislative branch interfering in the executive branch’s prerogative—telling a president whom to hire and fire. That is why Coons and Tillis crafted their legislation, which was dropped shortly after the Graham-Booker bill, the way they did—to answer precisely that concern because it wouldn’t preclude a firing, it would review it.

In any case, says Daniel Hemel of the University of Chicago Law School, the Supreme Court has weighed in on this. The case was Morrison v. Olson in 1988 (and yes, Olson was the same Ted Olson whom Trump now is begging to join his legal team; back then, he was accused of having given misleading testimony to a House committee).

This is the case in which the court, by 7-1, upheld the independent counsel law as constitutional. Hemel explains why that precedent should hold here: “The Court held that for-cause removal restrictions protecting the independent counsel do not violate the separation of powers. Because the special counsel is even less independent than the independent counsel under the old Ethics in Government Act, the imposition of identical removal restrictions for the special counsel is even less problematic than the restrictions upheld in Morrison.” It’s binding precedent.

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