[W]ASHINGTON — A Senate panel is considering taking legislative action to protect the special prosecutor investigating connections between the Trump campaign and Russia in the 2016 presidential election.
The two bills, each introduced with bipartisan support, would both require judicial review in order to fire special counsel Robert Mueller.
Mueller was appointed by a Department of Justice official earlier this year to investigate Russian influence in the election and whether there were connections to the Trump campaign.
President Donald Trump has at times been vocally critical of the probe. Both pieces of legislation were introduced in the Senate in early August amid speculation that Trump might fire Mueller.
One bill would let Mueller appeal his termination, should it occur, to a panel of three judges. The other would require Justice Department officials to go before a panel of judges prior to dismissing Mueller, in order to explain the reasoning.
GOP senators backing each measure gave different reasons for their support.
Sen. Lindsey Graham, R-South Carolina, co-sponsor of the bill that would require approval of judges prior to termination of Mueller, said that his goal is to assure the public that the special prosecutor can complete his investigation “with some confidence.”
“What we’re trying to do is make sure we move forward and hold Mr. Mueller accountable, but also give him protection to do his job,” Graham said.
Sen. Thom Tillis, R-North Carolina, co-sponsor of the other bill, said that he supports the president and is not aware of any actions that Trump has taken that indicate an intention to fire Mueller. He backed the bill, he said, in an effort to reduce speculation that Trump is attempting to interfere.
“My motivation is actually to remove the distraction and to eliminate what I thought was a spiraling of the narrative out there,” Tillis said.
Four legal scholars fielded questions from the committee on the bills. The professors took different positions on the legislation.
Stephen Vladeck, a professor of law at the University of Texas School of Law, for instance, said that with some adjustments, both proposals are constitutional.
Professor Akhil Reed Amar from Yale University, however, asserted that both bills are not only likely to be vetoed by the president — they would not likely withstand a challenge in court.
Instead, Amar advocated for the creation of a Senate committee charged with oversight of the president.
Sen. Mike Lee, R-Utah, urged caution in passing legislation that would affect separation of powers.
“Any time we tinker with the division of power within the federal government, between these three branches of government, we do great damage to the system,” Lee said.
Sen. Patrick Leahy, D-Vt., the longest serving member of the committee, recalled in remarks that when he first took office during the Nixon administration, the Senate discussed protections for special prosecutors.
Decades later, in the late 1990s, he said, many legislators questioned the work of special counsel Kenneth Starr who was investigating President Bill Clinton. In 1999 a law establishing protections for special counsel lapsed.
“There’s little doubt that the underlying independent counsel statute didn’t violate the separation of power,” Leahy said. In his view, he continued, the two bills on the table now “are even more modest.”
After the hearing, Leahy said he does not favor one bill over the other.
“I just want to make sure that Bob Mueller is not interfered with,” he said.
Leahy expects that as Mueller’s investigation proceeds, the Trump administration may seek to suppress it.
“As the pressure goes more and more to the White House, there’s going to be more and more wish that they could get rid of him,” Leahy said. “And we just have to make sure that they don’t.”
Existing laws concerning obstruction of justice and others could already be sufficient, Leahy said. But bipartisan support for the concept sends “a very, very loud message to the White House,” he said.
Leahy said it is remarkable “that we’re having a hearing with Republicans and Democrats saying, let him do his job.”