Mueller legislation is unconstitutional

April 27, 2018

Yesterday the Senate Judiciary Committee considered legislation providing that any special counsel appointed by the Justice Department may be fired only for good cause and allowing a special counsel who has been fired to challenge the decision in court.

The proposal is politically salient because many fear the president will fire Robert Mueller. To be clear, the president should allow Mueller to finish his investigation into Russia’s election interference in a timely fashion.

But this legislation is unconstitutional, and political expedience can never trump the Constitution.

Supporters of the legislation argue it is necessary to ensure no one is above the law, but the Constitution is the highest law of the land, and the Constitution provides that only the president can exercise executive power.

Because the power to prosecute is the quintessential executive authority, any congressional attempt to direct prosecutions — including by limiting the president’s power to fire a prosecutor — is an unconstitutional breach in the separation of powers. All senators swear to uphold the Constitution, and I hope that the full Senate will not pass this legislation if it is brought to the floor.

Moreover, the Constitution itself provides several ways to hold executive branch officials accountable, most notably through elections. We should stick with those remedies, because undermining the separation of powers is a grave threat to liberty.

Some may question how legislation meant to hold the president accountable is a danger to liberty. It’s because it would empower the creation of unaccountable federal prosecutors who could not be fired for acting unjustly or unwisely. In 1940, then-Attorney General Robert Jackson said “the prosecutor has more control over life, liberty and reputation than any other person in America.”

That’s even more true if the prosecutor has been made unaccountable to the public, yet that’s exactly what this legislation aims to do.