National Review: A protection bill would really represent a return to the constitutional anomaly of the old independent-counsel statute.
Mitch McConnell just did our constitutional order an enormous favor by burying the so-called Robert Mueller protection bill, hopefully never to rise again.
There’s been much harumphing about how Republicans are in the tank for President Trump by not getting on board the bipartisan bill, but it is a singularly misbegotten piece of legislation.
Plan A, i.e., passing the thing, would have been hard enough. But its supporters apparently didn’t think through a need for a Plan B or C: Trump would have vetoed the bill if it passed Congress, and if it somehow passed Congress with a veto-proof majority, the Supreme Court likely would have struck it down.
The push for the bill again shows how, to this point, Trump’s main threat to our constitutional system has been catalyzing a hysterical opposition. That opposition is willing to throw overboard legal and constitutional niceties to thwart Trump.
Hence, much of the #resistance judging regarding Trump measures. And hence the astonishing spectacle of U.S. senators, sworn to uphold the Constitution, advancing a blatantly unconstitutional bill.
The president is the chief executive, and like it or not, Trump is president. “I conceive that if any power whatsoever is in its nature executive,” James Madison declared, “it is the power of appointing, overseeing and controlling those who execute the laws.”
If the president can fire the attorney general (the ill-used Jeff Sessions attests that he can), he certainly can fire Mueller. The attorney general is a much more important position than the special counsel.
In compelling Senate testimony, Yale law professor Akhil Amar explained the constitutional problems with the Mueller protection bill. One is that to be constitutional, the special counsel must be an inferior officer. Otherwise, he has to be confirmed by the Senate, which Mueller wasn’t. And if he’s an inferior officer, he can be fired. MORE