After new acting Attorney General, Democrats Years Too Late Trying To Save Mueller
WASHINGTON, D.C. (Nov 26, 2018) – Congressional Democrats reportedly plan to try to protect special counsel Robert Mueller by insisting on language in a high-priority spending bill, which must be passed by Dec, 8th to avoid shutdowns of many federal agencies, including the Department of Homeland Security.
Although such spending bills require 60 votes to clear procedural hurdles in the Senate, where Republicans have only 51 seats, the proposal is a dubious Hail Mary effort which is likely to fail for several reasons, would provide little real protection even if it passed, and comes some 20 years too late to provide the true protections such special investigations really need, says public interest law professor John Banzhaf.
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This effort is almost 20 years too late since Democrats let the statute which then provided for the appointment of a truly Independent Counsel - a law which would have provided far more protection to the current investigation than Democrats could possible hope to achieve now - to die, argues Banzhaf, who played a major role in getting a Watergate special prosecutor appointed, and went to court and obtained a court order for the appointment of a second one.
Under the now-lapsed Ethics in Government Act, the Attorney General had a legal duty to have three federal judges appoint a truly independent attorney to investigate if there was any specific and credible evidence of a crime by the president and/or his close White House associates.
The statute, passed by Congress, protected the independent counsel against firing except for good cause, allowed him to operate largely without any restrictions by any full-time or acting attorney general, and guaranteed that his reports would be made public.
What we have now, however, because that powerful and groundbreaking law was allowed to expire, is someone appointed and operating under a mere Justice Department regulation (not a statute).
Mueller himself was appointed not by independent judges but rather by an executive branch official who was personally involved in aspects of the matters under investigation, and his current supervisor is about to be replaced by still another bureaucrat, Acting Attorney General Matthew Whitaker, who has never been investigated - much less confirmed - by the U.S. Senate.
Unlike only very limited oversight by a special court of three independent judges, Mueller is closely supervised by - and subject to termination by - executive branch officials, and probably by the President himself, since there is no current statute purporting to limit presidential power to fire subordinates at will.
The protections of the original Ethics in Government Act have been upheld as constitutional by the U.S. Supreme Court, so it would be harder, even for a high court allegedly more favorable to Trump, to rule against an independent investigator on constitutional grounds regardless of his title.
In stark contrast, the procedures under which Mueller was appointed, operates, and might even be terminated have never been upheld by the Supreme Court, have never even been approved by Congress, and were never even subject to the notice and comment procedure generally required for regulations - and thus are more vulnerable.
These dramatic differences are quite telling, and will make it much easier for Mueller to be marginalized or even fired, and harder for him to remain independent and to make a public report, argues Banzhaf.
The odds that Congress would now pass legislation adopting the same kind of protections for Mueller, and possibly other special counsels, as was provided by the original Ethics in Government Act are slim, suggests Banzhaf. The odds that the current president, who has steadfastly criticized the investigation, and has repeatedly tried to stymie it, would sign any such legislation, is even smaller, he says.
Even if the spending bill contained a clause stating that the special counsel could be fired only for "good cause," it would not solve two major problems: acting Attorney General Whitaker's ability to hinder or even emasculate Mueller's investigation, and his power to prevent any report from seeing the light of day.
Stating that a special counsel can be fired only for "good cause" provides very limited protection for Mueller since the term is vague, it is not clear that any court could or would seek to reverse a firing in which good cause is claimed to be the justification, and acting Attorney General Whitaker can hobble the current investigation without completely discharging Mueller.
Even if the statute were to pass, any number of possible plausible reasons could be cited as a basis for firing Mueller. In such a case, he and those under him presumably could no longer proceed.
Even if the firing, and the alleged basis for it, could be reviewed by a court - which is unlikely - the normal delay involved with legal proceedings could tie up Mueller for many months if not longer.
Moreover, even without firing him for "good cause" if the spending bill were to so require, acting Attorney General Whitaker could effectively emasculate the investigation by slashing Mueller's budget, refusing to approve additional subpoenas (especially for the president), forcing him to meet a time limit or to substantially narrow the scope of the investigation, shielding the President and perhaps even members of his family from any further investigation, etc.
Even if Mueller remains in office and unhobbled, a legal minefield may prevent the public from ever finding out what he uncovered for several reasons.
Mueller is bound by current Justice Department [DoJ] regulations which make a release - much less a public release - of any such report very unlikely.
Indeed, except in the very unlikely event that the acting Attorney General changes the regulations to permit the release of any such report to the public, an indictment may be the only way for Mueller to insure that the information sees the light of day, says Banzhaf.
Many people no doubt expect that Mueller will release a report upon the conclusion of his investigation, since Kenneth Starr released such a public report.
But Starr was able to do this only because he had been appointed independent counsel under a statute which not only permitted but required that he submit to Congress a report if he found any "evidence which might warrant impeachment."
But the DoJ regulations, specifically Section 600.8, now require the special counsel to provide a "confidential report explaining the prosecution or declination decisions reached by the Special Counsel," but only to the Attorney General.
In summary, unlike Starr and other independent counsel, if Mueller does have evidence showing that Trump committed crimes or engaged in other activities which might warrant impeachment, he has no easy way to present this information to the entire Congress, much less to the American people.
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf