Bipartisan legislation that makes it very difficult, if not nearly impossible, to fire Special Counsel Robert Mueller without good cause would, if enacted, take an important step toward insulating his investigation from political influence. That’s a good start. But now that President Donald Trump has named Matthew Whitaker as Acting Attorney General and put him in charge of overseeing Mueller’s investigation apparently because, not in spite, of Whitaker’s extreme hostility to the investigation, a good start isn’t sufficient. It’s high time for Congress to step up to the constitutional crisis that Trump is delivering and be the co-equal branch of government that stops the rule of law from unraveling.
Any legislation designed to do one thing and one thing only – prevent Mueller from being fired without cause – would not protect against actions other than firing Mueller. But as one of us (Ryan, writing with Alex Whiting) and others have noted, firing Mueller is only one way of interfering with his investigation. Without taking that overt step sure to provoke public outcry, Acting A.G. Whitaker has the power to take a range of actions, completely outside of public view, to stifle Mueller’s investigation and to bury its findings. Among other actions, Whitaker could:
● Rescind or modify the Order appointing Mueller and applying the Special Counsel regulations to the special counsel’s investigation;
● Withhold approval for significant prosecutorial steps or decide that any proposed action by Mueller should not proceed;
● Decline Mueller’s budget or staffing requests for next year (should the investigation continue);
● Fail to disclose to Congress or the public the report Mueller is required to prepare at the end of his work, per the Justice Department’s internal regulations (which require the Acting A.G. only to provide to Congress a description and explanation of instances (if any) in which he concluded that a proposed action by the Special Counsel was “so inappropriate that it should not be pursued;” and even then, Congress need only be informed at the final conclusion of Mueller’s work.) (28 C.F.R. 600.9(a)).
If Congress is serious about protecting the Russia investigation, it could easily fix these problems. It requires little imagination to do so. So-called #ProtectMueller bills should include provisions for insulating the Special Counsel from undue interference along these different axes and should create more robust reporting requirements on the part of the Attorney General. One place to start is to codify, in essence, the existing special counsel regulations and provide that these rules apply to Mueller’s investigation, then look for areas in which that framework can be further improved. The Senate’s premier bill in this space—co-sponsored by Senators Lindsey Graham (R-SC), Chris Coons (D-DE), Thom Tillis (R-NC), and Cory Booker (D-NJ)—includes some valuable provisions which should not be lost in any final legislation. The section on “conduct and accountability” is especially vital, and the press should become more familiar with these measures—not just asking members of Congress whether they support legislation to protect Mueller from being fired, but also how they plan to protect against more insidious means of undermining his investigation.
Congress Should Amend the Vacancies Reform Act Now
Another area in which Congress can and should act: There is growing bipartisan agreement that the provision of the Vacancies Reform Act that allowed Trump to name Whitaker Acting Attorney General, 5 U.S.C. § 3345(a)(3), is unconstitutional, in particular as applied to a Cabinet-level official. Rather than waiting for litigation to play out, Congress should add a simple provision to any #ProtectMueller legislation that amends the Vacancies Reform Act to require that any Acting Cabinet level official be Senate confirmed. Congress could do so, for example, by adding a requirement to section (a)(3) of the Vacancies Reform Act stating that the provision may only be applied to vacancies for inferior officers (and shall not be applied to heads of departments or agencies). Drafters could include language to say that the amendment confirms existing constitutional principles, so as not to prejudice any existing litigation.
And if Congress wanted to prevent the President from installing as a new Acting A.G. a different Senate-confirmed official for the purpose of subverting the rule of law, Congress could remove the option of abusing the Vacancies Reform Act (VRA) yet again by requiring that the existing order of succession statutes be followed for any Cabinet-level vacancy. This could be accomplished, for example, by adding the same type of requirement to 5 U.S.C. § 3345(a) as described above, or by prohibiting the VRA’s use as an alternative means of filling a vacancy so long as a succession statute exists for the department or agency. These amendments could also be a stand-alone bill or be added to any must-pass vehicle.
The immediate impact for the Mueller investigation would be to revert back to Deputy Attorney General Rosenstein as the Acting A.G., per the DOJ succession statute, putting back in control a Senate-confirmed official who was not installed for the purpose of subverting the rule of law. That’s the bare minimum we should expect in a functioning democracy. It would also cure this potential constitutional defect of the Vacancies Reform Act going forward.