If you’ve heard of the proposed “Mueller protection laws” and are wondering how they’re structured, Steve Vladeck on Lawfare has a summary and opinion:
There are actually two different legislative proposals on the table to deal with this problem. Although they differ slightly in their particulars, they have the same basic structure: Both bills would allow a Special Counsel terminated under §600.7(d) to challenge his termination before a “three-judge” D.C. district court (which would include two federal district judges for the District of Columbia and one judge from the U.S. Court of Appeals for the D.C. Circuit). That three-judge court, in turn, would be able to decide if the substantive standard set out in §600.7(d) had been satisfied. Like all other decisions by three-judge district courts, whoever loses would have a right of mandatory (not discretionary) appeal directly to the Supreme Court. And that’s it. As I wrote in January, “[t]he bills don’t change the procedural or substantive rules governing the special counsel’s authority, or the grounds on which he can be fired; they simply ensure a role for the courts in reviewing any dismissal to make sure it’s done for the right reasons and not the wrong ones.”
It adds a review step to firing process, with the review by the judiciary. This is appealing as it falls right into the American tradition of legal review. Additionally, it spreads the power over all three branches. The Executive may fire, but the Legislative provides a review process, and the Judiciary actually implements it. In this way, the demagogic instincts of the dictator are muffled. But what does Vladeck think?
I’m generally in favor of more judicial review, not less—and of broader federal remedies over narrower ones. So wholly apart from the (insane) politics of the moment, this proposal seems like a no-brainer. But even for those who are more circumspect, the arguments against such review presumably turn to some degree on confidence that the Justice Department will abide by its own regulation, and that allowing for judicial review of a removal decision is just unnecessary. Of course, there are plenty of reasons to doubt the efficacy of the internal checks and balances in this case—all the more so given the increasingly overt political pressure from the White House. So as between potentially inefficient judicial review and the possibility of firing a special counsel for illegitimate reasons, it seems to me that the scale tips rather overwhelmingly in favor of these proposals, rather than against them.
The other prudential objection is that the judicial review provided by the legislation could cause chaos; what would be the status of the investigation while Mueller litigated the validity of his termination before the courts? And would that litigation in turn become a referendum on Morrison, rather than the desired inquiry into the propriety of Mueller’s sacking? To me, this is a far more well-taken objection, but I think it ultimately misses the mark. It’s far less likely that whoever would otherwise be swinging the axe toward Mueller would do so for blatantly inappropriate reasons if they knew there was even the specter of judicial review. And if somehow the dismissal were undisputedly for good cause, presumably Mueller wouldn’t turn around and bring suit. So conceived, the particular genius of the Mueller protection bills is that, if they’re enacted, the judicial procedure they would create would almost certainly never have to be utilized.
Vladeck definitely feels that it’s time to pass this legislation.
