Hemel and Posner Explain How Congress Can Protect Robert Mueller

A Better Way to Protect Robert Mueller

Senators introduced two bipartisan bills last week to block President Trump from firing Robert Mueller, the special counsel in the Russian election tampering investigation. Both bills mean well, but both miss the mark. While they provide Mr. Mueller with a modicum of job security, they do not prevent President Trump from interfering with the investigation.

Under Justice Department regulations, the attorney general can remove Mr. Mueller “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies.” That seems like a high bar, but there’s a catch: The attorney general’s decision to remove Mr. Mueller cannot be challenged in court. And because the removal provision is found in a regulation rather than a statute passed by Congress, it can be modified by the Trump administration.

The bills seek to strengthen the regulatory restrictions on firing the special counsel. One of them — introduced by Senators Thom Tillis, Republican of North Carolina, and Chris Coons, Democrat of Delaware — would codify the regulatory removal standard, which means that the Trump administration could not modify the removal restrictions unilaterally. The Tillis-Coons bill would also allow the special counsel to challenge his removal in court; a panel of three federal judges would have 14 days to decide whether removal was proper. If the panel disagreed with the attorney general’s decision, it could reinstate the special counsel immediately.

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