On Lawfare, former White House Counsel Bob Bauer critiques a law proposed by Senator Graham (R) to protect Special Counsels from being fired by the Presidents they’re investigating, suggesting it is too similar to another law that has been discredited. He wants to depend on the institutions:
Rather than reviving some version of the largely discredited independent counselstatute, Congress should exercise strong oversight while leaving no doubt about the readiness to move as necessary to impeachment. For the moment, in the last few days, an informal “oversight” process seems to be having salutary effects. The Chairman of the Judiciary Committee tweeted out that “everyone in DC” should know that there was no room on the 2017 Committee agenda for an Attorney General confirmation process. The Senate Republican leader Mitch McConnell and other senior Republicans spoke clearly against the hectoring of the attorney general and in support of Robert Mueller. Graham made his strong statement about the doom awaiting this administration if the president fires Mueller.
This oversight activity does not have to continue informally but can be heated up and brought closer to the impeachment process. It is not hard to imagine a hearing into the effects of the president’s behavior on the Department of Justice. Senior officials could be called to testify about the impact on Department morale and regular order in the conduct of its operations. They might be questioned about any White House contacts outside the contacts policy, or even contacts consistent with the policy that would give grounds for concern. Testimony could be taken on the reasons for the well-established understandings of the relationship of president and DOJ in the administration of the law enforcement function. This is another way that the Hill can get its message across to Mr. Trump that the firing of Sessions, or that of Mueller, could bring an end to the Trump government.
I think Mr. Bauer is correct. In a sense, Senator Graham is retreating from his responsibilities of Senatorial oversight by attempting to regulate the President’s behavior through a statute. Once such a statute is in place, then it’s simply a matter of testing whether some behavior has broken the text of the statute. If so, then he’s impeached: no difficult judgments necessary.
Worse yet, there is a certain implication that behavior which does not violate the proscriptions of the statute is then legal. More statutes may be written, of course, but now we’re busy enumerating what’s illegal, and at the Presidential level, this could be a bizarre and subtle list.
Senator Graham and his allies, as well meaning as I believe them to be, are making a mistake. There’s something about systems that must be faced, as mathematicians know better than I[1] – you get near their boundaries and things get hard. Same for a democracy in which power is distributed. When the President is suspected of wrong-doing, we don’t investigate him for criminal conduct, but for dangerous conduct. For conduct that endangers the Republic. This is necessarily a judgment call, and since we’re in the political realm, it must be a political judgment. Remember, while politics is generally considered a dirty business, formally it’s the business of governing, which includes safeguarding the Republic.
Rather than hide behind the words of a statute, Senator Graham should be willing to await the findings of the Special Counsel, and then render judgment.
And if the President fires the Counsel, then, as Mr. Bauer suggests, that is sufficient evidence of danger to the Republic, and Congress should act accordingly.
