Outgoing Senator Jeff Flake (R-AZ) is fulfilling his promise to stop (or slow down) Senate confirmations of Trump nominated judges IF the Senate does not pass a bill Flake has introduced to protect Special Counsel Robert Mueller from being fired IF President Trump so chooses. Following the objection to Flake’s motion for unanimous consent to consider the bill, Flake joined Senate Democrats in voting against the confirmation of Thomas Farr to serve on the federal bench for the Eastern District of North Carolina. Flake’s move forced Vice President Pence (as President of the Senate) to break the 50-50 tie for Farr’s confirmation as federal judge.
Flake’s action ignited a firestorm surrounding Robert Mueller: who does the Special Counsel work for? Who has the authority to hold a Special Counsel — ANY Special Counsel — accountable for his/her job performance and adherence to the rules in the law that established that position? Let’s look how all this pertains to Mueller’s current position.
The History of Special Counsels
A Special Counsel is different from Independent Counsels who investigated high-profile matters in the past.
In the Watergate investigation, the Justice Department appointed Special Prosecutor Archibald Cox who was eventually dismissed by President Nixon in the Saturday Night Massacre. In the aftermath, President Nixon appointed Leon Jaworski to replace Cox with the protection that Jaworski could only be fired with the consent of a majority of the Senate Judiciary Committee.
◊In 1978, as part of the Ethics in Government Act, the Attorney General was authorized to seek a special independent prosecutor to investigate executive branch officials, and assigned a three-judge panel from the US Court of Appeals in the District of Columbia the authority to appoint and monitor the independent counsel’s activities. From 1978 to 1982, three special prosecutors were assigned under the Ethics in Government law.
◊The law was authorized for a period of five years and expired in 1983. Congress modified the law in 1983 to address concerns as to the broad coverage of the law. Despite opposition from the Reagan Administration, the law was reauthorized for five more years. Seven independent counsel investigations occurred during the Reagan Administration, including the massive Iran-Contra investigation conducted by Independent Counsel Lawrence Walsh.
◊In 1988, after the law was reauthorized again, the Supreme Court upheld the constitutionality of the independent counsel law. Justice Scalia was the sole negative vote arguing that the law was unconstitutional.
◊In 1992, the independent counsel law expired. President Clinton reauthorized the law in 1994. By mid-1998 — and to Clinton’s dismay — seven separate investigations of the Clinton Administration were underway, including the infamous investigation of President Clinton by Kenneth Starr. The law expired again in 1999.
◊In its place, the Justice Department crafted Special Counsel procedures and regulations. The Justice Department appointed Special Counsel Fitzgerald during the Bush Administration to investigate the Valerie Plame affair that resulted in the conviction of Scooter Libby.
Special Counsel Mueller
Under the Deputy Attorney General’s Order, Special Counsel Mueller is:
- Authorized to prosecute federal crimes arising from the investigation of these matters. The reference to 28 C.F.R. Section 600.4(a) authorizes Special Counsel Mueller to investigate and prosecute “federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”
- Required to comply with the rules, regulations, procedures, practices, and policies of the Department of Justice, but he/she shall not be subject to the day-to-day supervision of any official of the Department. 28 C.F.R. Section 600.7(a) and (b). The Attorney General, then Deputy Attorney General Rosenstein when Attorney General Session was recused, and now Acting Attorney General Michael Whitaker, “may conclude that [a Special Counsel] action is so inappropriate or unwarranted under established Department practices that it should not be pursued.” If the Acting Attorney General conducts such a review, he shall give the Special Counsel’s view great weight, and shall notify Congress if he reaches such a determination. 28 C.F.R. Section 600.7(b).
- Answer to the Acting Attorney General, who retains authority to remove the Special Counsel for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” 28 C.F.R. Section 600.7 (d).
- Required to comply with the fact that under the Special Counsel regulations, the Attorney General has the theoretical authority to restrict the Special Counsel’s activities, and in the end, can even dismiss the Special Counsel. Given the surrounding controversy and need for independence, it would be a rare situation for the president to order the Attorney General to terminate the Special Counsel, in the absence of extraordinary circumstances. However, as history has shown, such unforeseen events can occur.
The very appointment by President Trump of Michael Whitaker to replace former Attorney General Jeff Sessions has been under fire from Democrats since it occurred. Their reasoning is based on the Appointments Clause in the Constitution.
The Appointments Clause is part of Article II, Section 2, Clause 2 of the United States Constitution, which empowers the President of the United States to nominate and, with the advice and consent (confirmation) of the United States Senate, appoint public officials. However, it often happens that cabinet members leave and their replacement’s confirmation delay can leave cabinet positions vacant for an extended period of time.
Many Democrats emphatically hold to the belief that President Trump violated Article II of the Constitution by appointing Whitaker to fill the seat of Jeff Sessions as AG without the consent of the Senate. For the reasons stated in the previous paragraph, in 1998, Congress resolved this problem by passing The Federal Vacancies Reform Act, which states the president can appoint a temporary, high-ranking official until a permanent official is vetted by the Senate and put in place. Trump appointed Whitaker under this act, as Whitaker was Sessions’ chief of staff. However, Democrats state flatly the job should have fallen to Sessions’ number 2 — Deputy Attorney General Rod Rosenstein. But the circumstances surrounding Rosenstein’s ascent to the Attorney General spot along with his several alleged conflicts of interest in the Mueller probe prompted the President to appoint Whitaker instead.
What Happened in the Senate?
In a discussion on the floor about Senator Flake’s motion for unanimous consent, Senator Mike Lee (R-UT) stood in opposition and gave an amazing explanation of the danger such action would initiate in the United States. Lee cited the late Justice Antonin Scalia’s minority opinion in Morrison v. Olson, the Supreme Court case that upheld the process of appointing an independent counsel under a bill passed forty years ago. (That law’s authority has expired)
“As Justice Scalia explains, we cannot convert an office like this one, an office like the previously existing office of independent counsel, without creating a de facto fourth branch of government fundamentally undermining the principles of the separation of powers that is so core to our liberty,” Lee said.
A concise and specific question to ask in light of Lee’s statement is this: Flake and others want a law passed to prevent President Trump from firing Robert Mueller. Doing so, according to Lee, would literally create a fourth branch of government, making members of that fourth branch (in this case Robert Mueller as Special Counsel) immune to accountability for any actions — regardless of how egregious they might be. In the current structure, Mueller is a de facto member of the Department of Justice and works for the Attorney General. Democrat’s beef is that with Michael Whitaker as “Acting AG,” the President could require Whitaker to terminate Mueller for any reason. Trump opponents want to prevent that situation from even being possibility.
But if such a bill passed and was signed into law, who would the Special Counsel answer to? The answer is simple: No One In Government! In fact, doing so would require amending the U.S. Constitution.
There are applicable considerations that in large are being ignored by those screaming for Mueller’s protection from termination by the President:
- President Trump has for 18 months stated over and over he has NO intent to fire Mueller, that he wants the Mueller probe to be completed, be thorough, and be finalized;
- The President literally screams at reporters when he is questioned about Mueller’s “pending” firing that he will NOT fire Mueller because there was no Trump Campaign collusion with Russia;
- The White House has provided the dozens of witnesses requested by the Mueller team to testify along with several million requested documents, and President Trump submitted answers in writing to Mueller’s questions of him: compliance with Mueller in every way;
- Frankly, there is absolutely NO legal basis for a law that could guarantee such protection to Mueller’s position WITHOUT A CONSTITUTIONAL AMENDMENT. And that is NOT going to happen.
What do Americans think about the Mueller probe?
While 58% of Americans believe Special Counsel Robert Mueller’s investigation of President Donald Trump and Russia is harming the country, 35% say it should continue “indefinitely,” a new Harvard-Harris poll finds:
- Helping the country: 42%
- Hurting the country: 58%
- He should stop immediately: 31%
- Another month: 9%
- 2 to 3 months: 12%
- 3 to 6 months: 6%
- 6 months to a year: 7%
- Indefinitely: 35%
Only 37% believe Mueller has uncovered any “actual evidence” of collusion with Russia:
- Found: 37%
- Not found: 40%
- Don’t know: 23%
More than half of Americans say anti-Trump bias “played a role in launching” the probe:
- Bias played a role: 54%
- Bias did not play a role: 46%
Two-thirds of Americans think the public should see the evidence the FBI and Justice Department have “to clear the air about any potential wrongdoings in starting the investigation:”
- It’s important to publicly release the evidence used by the FBI and the Justice Department to clear the air about any possible wrongdoing in starting the Trump-Russia investigation: 67%
- The administration should not publicly release the evidence to avoid interfering with sources and methods of interviewing: 33%
And, nearly two-thirds of Americans want a special counsel to look into the way the investigation was initiated and how it has been handled:
- Favor: 62%
- Oppose: 38%
But, two-thirds of Americans say Special Counsel Mueller should not be fired:
- Fired: 32%
- Not fired: 68%
Prediction: Robert Mueller continues the probe to its completion. Mueller’s staff attorneys — especially Andrew Weismann — push harder and harder, continuing to make offers to witnesses of “deals that cannot be refused” to confirm negative allegations made against members of the Trump team and the President himself. Several Mueller targets have refused to comply with these Mueller terms and have actually initiated legal action against Mueller for taking these steps, in some cases charging Mueller with criminality in doing so.
The bottom line in the Mueller probe is simple: Mueller is obviously diligently trying to uncover wrongdoing by members of the Trump Campaign and by the President himself. It is obvious that so far Mueller has come up empty. Every indictment in the probe so far alleges NO wrongdoing tied to the Campaign or the President. That lack of discovered wrongdoing seems to be pushing Mueller to find things and people he can use to “get” the President.
It is apparent that Mueller desperately wants to attack with substance President Trump. But It is apparent that Mueller has been able to find nothing of substance to use against Mr. Trump.
Is Mueller so desperate in his quest to “get” Trump that he is doing exactly what Mueller’s target, Jerome Cosi, alleges the Special Counsel is doing: offering witnesses a plea to plead guilty to lying? All they are doing is refusing to lie to confirm claims against the Trump team. And Cosi is ready to present evidence of that to a court. And hopefully, that practice being exposed will jolt Mueller into abandoning those attempts to thwart the spirit of the Law.
Most think the Special Counsel should take whatever legal actions are necessary to get the truth, but SHOULD NOT manufacture any evidence or extort witnesses into making specific testimony.
I doubt it will be much longer until all the good and bad of the Robert Mueller probe will be revealed to all. Not until that happens will Americans’ suspicions about President Trump, the Trump Campaign, and Robert Mueller be resolved.
Oh, this too: if Mueller or any of his prosecutors’ are found to have acted illegally in any way, they should each be prosecuted for THEIR wrongdoing.
And, Mueller will NOT be fired!