Bob Bauer, a professor at New York University Law School, was White House counsel from 2009 to 2011.
There is a simpler legislative solution available for dealing with a firing that may be motivated by the president’s desire to protect himself, his family or associates. It would provide a check against abuse of power, while allocating to each branch of government the role it is best equipped to perform in achieving this end.
Congress could require that, if the special counsel is fired, he report to the House and Senate the status of his investigation as of the date of dismissal, with specific attention to any evidence of criminal activity that implicates the president. As part of this measure, Mueller would have to note the existence of evidence protected by grand-jury secrecy rules, enabling Congress to take legal action to obtain it.
This reporting requirement would prevent the president from denying Congress access to evidence that bears on the exercise of its impeachment power. It may also give the president some pause in proceeding with a dismissal. If the firing were genuinely for good cause, without corrupt purpose of self-protection, the president should have nothing to fear from this disclosure to Congress. But he would understand that an illicit motive for the firing would likely be exposed by the report required from Mueller.
The now-defunct independent-counsel statute included a provision that mandated a report from the special counsel on any “substantial and credible” evidence of actions that might constitute grounds for impeachment. Critics objected that the effect of this requirement was to displace Congress from its proper investigative function in impeachment. In the Clinton-Starr matter, the House took no deposition testimony and relied wholly on independent counsel Kenneth Starr’s investigative record during voting to impeach President Bill Clinton.
To address the risk that an executive-branch prosecutor would usurp Congress’s proper role, the current special-counsel regulations do not provide for such a report. The special counsel is to make a limited report to the deputy attorney general, and the deputy may account for the investigation to Congress only in similarly restricted terms. In normal circumstances, this procedure reasonably reflects the concern with the reporting function under the old law.
But if a president refuses to allow an investigation to run its course, with the possible motive of eluding his or his associates’ responsibility for criminal conduct, this limited reporting serves corrupt purposes. It encourages the president to pursue a course of obstruction by sealing off evidence relevant to Congress’ performance of its constitutional responsibility.
The reporting envisioned by this proposal would not involve Mueller in assessing grounds for impeachment; he would have no discretion in that or any other aspect of the reporting — including whether to make any such report at all.
His firing would trigger a straightforward obligation to advise Congress of findings pertaining to presidential misconduct. In effect, the report would mark the beginning of the investigation. It would not supplant it.
This measure should be hard to oppose. It is, in essence, a transparency requirement, imposed on the special counsel only in a circumstance during which Congress would have a clear need to determine whether a president is interfering in the machinery of justice for his personal benefit. Republicans who claim to support Mueller would have to explain their opposition from the simple steps of discouraging the president from firing Mueller to save himself, and preventing the concealment of the inquiry’s results from Congress.
Of course, if a bill to protect the special counsel passed, the president could veto it, but his action would speak volumes about his intent to keep open the option of firing Mueller and burying the product of his investigation. Regardless of whether Congress would override his veto, it would be a fateful moment in this presidency.
A reporting requirement keyed to the special counsel’s dismissal does not risk resurrecting the independent-counsel model. It employs a narrowly drawn transparency measure to support the presidency, the Congress and the courts in performing constitutional functions while limiting the potential for abuse. The president would retain the authority to fire a subordinate officer, but not without consequence in which there is inevitably a question of motive.
Moreover, the courts would rule on ordinary-course legal questions without being drawn into complex questions of when a presidential dismissal of a subordinate in politically fraught circumstances is “for good cause.” In the Clinton-Starr proceeding, the special division of the U.S. Court of Appeals, authorized to appoint the independent counsel, was damaged by questions about possible political motivation behind Starr’s appointment. In this time of heightened polarization, the courts are not well served — nor is public confidence in the judiciary — by assigning judges the responsibility of reviewing the president’s dismissal of a special counsel.
That is the responsibility of the legislature. In providing by law that Mueller, if fired, will report on any evidence of presidential misconduct, Congress will accomplish at once two goals: signaling to the president that it is alert to the possibility of obstruction of justice masquerading as disciplinary action, and assuring the preservation of evidence relevant to an inquiry into grounds for impeachment.
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