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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