Brief note: I ran across this hearing and while I believe there is just cause for making the argument that Special Counsel is important to have, there were some interesting points in this particular “hearing” that are worth looking at closely in order to preserve our Constitution as the founding fathers envisioned it. Also, as usual MSM had little overall to say on this meeting and its findings though it was really a rather important meeting.
Senate Judicial Committee and Possible Firing of Mueller or any Special Counselor
September 26, 2017 Senate Judicial Committee Discussion
Senator Mike Lee: “This is one of the most overlooked issues in our system of government. The Question of Separation of Powers. Anytime we tinker with the division of power between these three branches of government, we do grave damage to the system. This damage is not abstract. Far from being an injury that is solely institutional, this type of injury I believe has profound consequences for individual liberty.”
The Senate Judiciary convened the meeting to get four “scholars” takes on if or which of two bills currently running through the Senate had merit or in case challenged in court would be most likely to survive judicial scrutiny. The four university scholars together had a vast amount of credentials and a long string of alphabet behind their names. They were asked in order for the committee to be able to best write or correct the language of the bills.
Senator Grassley called the meeting at which fourteen of the senators attended. Their scholarly witnesses included: Professors Akhil Reed Amar (very anti-Trump), John Duffy, Eric A. Posner, Stephen Vladeck (the youngest and decidedly most millennial liberal). Duffy and Posner ranged somewhere at the centrix though tended to fall a bit more liberal at times in their comments.
What was never mentioned in that committee meeting was that there had been a complete project done in 2013 which addressed everything that was done within this meeting. Congressional Research Service prepared a report as requested by Congress in 2013 titled “Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress” written by Jack Maskell, Legislative Attorney that should have answered a lot of questions on this issue.
Why was the committee meeting called?
The main purpose of the meeting was to determine which of two bills addressing the firing of Mueller might best stand up to legal scrutiny if challenged in court. At least a few senate members made clear that this was to curtail not just today but any future presidential efforts to interfere with or threaten to remove a Special Counsel member thereby threatening the person’s ability to be totally independent of those he might be “hired” to investigate.
S.1735 – Special Counsel Independence Protection Act – provides for limitations on the removal of a Special Counsel member. The AG has the responsibility of determining this but must be able to show “good cause” for the action and must file in the court while also notifying the Senate Judiciary Committee. (basically)
S.1741 – Special Counsel Integrity Act – while basically the same concept but with a bit more clarity, chose to have the AG remove the Special Counsel and then let that Special Counsel go before the court in order to determine the appropriateness and legal standing of the AG’s removal. Most importantly the bill was a retroactive move to make sure that Mueller was addressed..
Final outcome of this purpose.
The final outcome was that either or both groups originating their bills would work to make the wording more clear based upon recommendations by the witnesses. I do commend the committee for calling the meeting but why didn’t they reference the existing report?
It is obvious that they were equally conflicted, even those with legal backgrounds as to the constitutionality of the Special Counsel position and the total lack of controlled oversight and function of the investigation. In particular, they were furious that Special Counsel Mueller had “gag ordered” people so that the committee could only be allowed to see the most heavily redacted bits of information that he had specifically allowed.
Important points brought out in the meeting.
1 – Two witnesses believed both of the bills were unconstitutional but for different reasons. Two believed that the bills were soft and should eventually stand up to judicial review. They pointed out that the 1741 was riskier because the Supreme Court might take a hardline on “retroactive provisions” but that the procedural provisions would hold up.
2 – The STATUTE authorizing a Special Counselor was no longer valid. The Statute providing for a Special Counselor in 1999 had expired due to a sunset clause. Chief Justice Rehnquist also stated this in his opinion on the Morrison v. Olson case 487 U.S. 654 (1988). So the rule of law was no longer in force governing that part of the independent counsel provisions of the Ethics in Government Act of 1978, 28 U.S.C. §§ 49, 591 et seq. (1982 ed., Supp. V) when Mueller had been appointed. Instead someone decided that a REGULATION within the DoJ was sufficient to be able to hire Special Counsel.
3 – The role of calling for a Special Counselor falls first to an Attorney General. If he recuses himself it then goes to the Deputy Attorney General. If there is for some reason a need the next person in line would then become the Solicitor General who argues cases before the Supreme Court. (Noel Francisco was sworn in as Solicitor General of the United States on September 19, 2017.)
4 – Only the AG or his next in line is able to request a Special Counselor, provide the scope under which the Special Counselor can proceed, decide after seeing reports whether the Counselor has fulfilled his directive, or bring removal charges against the Special Counsel, but it has to be for “good cause.”
5 – Rosenstein announced that he had appointed a special counsel. The regulation rule Title 28, 601.1 simply states “The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted…” No three-panel consideration was used to look into who Rosenstein might get to fill the position and certainly no background review was done to determine if there was a conflict of interest.
6 – There was discussion on exactly how the Special Counselor was listed under “employee” status. Some discussion placed the position under the ability of the President to remove from his position. Others said that as one “hired” by the Attorney General would fall under the rights of the AG to release.
7 – The question at that point was if the Counselor were safe and free to fulfill obligations to be independent from even the AG. That also was a real problem. With the recusal of the AG, it then fell to the Acting AG to be the one to remove Mueller but in general it was determined that the President was not allowed to personally remove a Special Counselor or in fact cause any to be forced by political motive to do so.
8 – A Special Counselor has complete autonomy though never elected to position to carry out his duties in any manner he deems necessary up to but not beyond the intent and substance of his “contract.” He only has to provide to the AG information on what he is doing and an accounting of funds yearly. Nowhere in the “contract” is there a sunset clause stated. It is simply “understood” that he carries out his duties until the contract framework has been completed. However saying “whatever or wherever” the facts takes the investigator allows a tremendous latitude in the scope and details of his work. This was not viewed well in some information I read and in particular in the information in the 2013 Report.
8 – There was a good bit of discussion on the meaning of “Good Cause”. Is it good cause that an investigator is given a specific function to perform but then spreads the investigation into a larger, wider range of issues? According to a legal dictionary – The term good cause is a relative one and is dependent upon the circumstances of each individual case. It seems the courts are left to determine “good cause” as it applies to the one bringing suit.
There was a regulation set out in 1999 that addressed what had been deleted after its sunset in the Ethics in Government Act.
The regulations set forth (28 C.F.R. 600.1) a three-part analysis for determining whether to appoint a special counsel. The need to appoint special counsel will be greatest when serious allegations are made concerning the President or Attorney General, although allegations against others personally or politically close to either may also merit an appointment in unusual circumstances.
The order explains (64 Fed. Reg. 37039) that the regulations establish “a protocol whereby Special Counselors are provided with an appropriate description of the boundaries of their investigation, with the full recognition that adjustments to that jurisdiction may be required. The Attorney General has full control over the assignment to a Special Counselor of additional jurisdiction (section 600.4(b)) that is “necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light” during a special counsel’s investigation.
A Special Counselor is to consult with the Attorney General, who will then “determine whether to include the additional matters within the Special Counselor’s jurisdiction or assign them elsewhere.” However, the Special Counselor is not subject to any but the regular codified laws as any investigator in DoJ must do. He is bound by law to follow the law not his own goals or personal political beliefs. He does not answer to the AG but develops his case as any independent agent within the DoJ would except if there is a question or he has an immediate need. He is required to provide reports, updates, and end-of-the-year summaries in which he explains his actions and use of his budgeted money.
By the time the committee concluded I think several were even more befuddled about which bill was better. They just knew that both had issues to be worked out. Again, why didn’t these people consult earlier information like that report before they wrote the bills?
I get they may have been in a hurry and didn’t consider the profound affect their actions would have. But you can double dog believe that the Democrats did and were going to milk this for every single word they could get.
What it does point up is that a REGULATION which did not consider all of its parts when being written and is NOT a STATUTE has allowed a Special Counselor (a NON-ELECTED PERSON) to have unlimited access to information, unlimited investigative powers, and an unregulated budget to do what he chooses.
In this case no matter what bill the Senate proposes, retroactive to the current Special Counselor will more than likely be kicked out of court if he pushes for any judiciary action. It also makes it damn near impossible for the man to be fired.
Neither the Senate, AG who recused himself, the Deputy AG who should have recused himself, nor the President have the ability at this moment to fire the man. The ONLY hope is that the new Solicitor General might be able to step in and control the uncontrollable or fire his arse.
The Democrats are salivating like hungry wolves at a feeding hoping Trump or Session or Rosenstein does try to fire Mueller. Just as pointedly they are hoping Trump does attempt to pardon those that Mueller brings to trial.
PS. Unless you are into self-punishment I wouldn’t go past the first hour. I guarantee that there are Democrats on there that will turn your stomach in their eagerness to sound like they are knowledgable but are really stupid.