Congress may be unable to provide any job protection legislatively for special counsel Robert Mueller, whose wide-ranging investigation into Russian meddling in the 2016 election continues to anger President Donald Trump, reported the McClatchy News Service.
While Trump confidant Roger Stone was defending himself in front of a separate committee elsewhere on Capitol Hill, legal scholars offered competing views on whether two Senate bills designed to protect Mueller from firing by Trump or someone in the Justice Department would pass constitutional muster during a hearing of the Senate Judiciary Committee.
A bill sponsored by North Carolina Republican Thom Tillis and Delaware Democrat Chris Coons would allow a fired special counsel to have his dismissal reviewed by a three-judge panel within 14 days. Another measure, put forward by Lindsey Graham, R-S.C., and Cory Booker, D-N.J., would require the Justice Department to clear such a firing with a panel of judges before it could take effect.
“The bills in their current form are unwise and unconstitutional,” said Akhil Reed Amar, a constitutional law professor at Yale Law School and a Democrat who publicly opposed Trump in the election.
Eric Posner, also no fan of Trump, disagreed. “I’ve concluded they do not violate the principle of the separation of powers and on the contrary advance important constitutional values,” said Posner, a professor at the University of Chicago’s law school.
John Duffy, a law professor at the University of Virginia and former clerk of the late conservative Supreme Court Justice Antonin Scalia, argued that parts of both bills were legally questionable, but said they could be tweaked to help pass judicial reviews. He, however, declined to offer an opinion on how the Supreme Court might view them.
“With such judicial variability, I have to balk,” Duffy said.
The complex legal issues and the scholars’ differing perspectives seemed to give senators pause about how, or whether, to move forward.
The law professors referenced almost a dozen Supreme Court cases, most notably Morrison v. Olson, a 1988 decision that held the Independent Special Counsel Act was constitutional.
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