This April a group of senators introduced a bill (the “Special Counsel Independence and Integrity Act”) designed to protect special counsels like Robert Mueller from being fired by a president. Majority Leader Mitch McConnell has now said he will not bring it up for a vote, and that will deprive President Trump of a terrific opportunity to clean up a mess made by the Supreme Court in 1935. If Republicans were to vote for the bill, Democrats would too, presumably, in which case it would pass and go to President Trump for signature.
Not Jimmy the Greek, nor any of his ancestors going all the way back to Homer the Greek, would have seen such lopsided odds favoring a veto as there would be for this bill.
And the president would be on good constitutional ground, albeit a bit overgrown.
Once upon a time, the United States of America had a constitution that provided for three branches of government (stop me if you’ve heard this one before): a legislative branch, an executive branch, and a judicial branch.
The press, sometimes described as the Fourth Estate, is actually not mentioned in the U. S. Constitution, an omission that continues to rankle to this day.
The branches share power, but only one is supreme: the legislative branch. It is supreme because (a) it makes the laws that the executive branch is supposed to execute; (b) it can remove jurisdiction from the judicial branch if it doesn’t like the way it interprets the Constitution; and (c) it can remove the chief executive officer, the president, from office. And, not incidentally, the powers of the legislative branch are defined in the first Article of the Constitution.
The press also can remove a president from office, as it did in the case of Richard M. Nixon — but we digress, and will opine only that compared to the current occupant of that office, Mr. Nixon was a white-tie player, by the Marquis of Queensberry out of Emily Post.
Where in that constitutional scheme, the reader who has been paying attention might ask, does a special counsel who cannot be fired by the president fit? That of course is the question. The answer is: nowhere.
The Framers of the Constitution separated and diffused power in order to protect the liberty of the people. Checked power was dangerous enough, unchecked power more so. The more difficult it is to remove someone from his office, the more likely he is to abuse his power and the more likely it is that the people’s freedom will be abridged.
That was, and is, the correct understanding of why power in our system of government was separated and diffused. But the Supreme Court carved out an exception in a 1935 case involving a deceased member of the Federal Trade Commission.
William E. Humphrey was appointed by President Roosevelt to be a commissioner but was subsequently asked by President Roosevelt to resign because, essentially, he was a conservative. (“I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission.”)
Humphrey refused and Roosevelt fired him. Subsequently Humphrey sued for back pay, a suit that was carried on by his executor after he died and that eventually reached the Supreme Court — which got it wrong.
The Supreme Court deemed the Federal Trade Commission (and by extension the multitude of other so-called independent regulatory commissions like it — there are now at least fourteen such major commissions) to be a “quasi legislative and quasi judicial” body that “cannot in any proper sense be characterized as an arm or an eye of the executive.”
But if those agencies cannot be characterized as arms or eyes of the executive, then they cannot be characterized as fitting into the constitutional scheme the Framers devised.
This could have been, and perhaps still could be, President Trump’s finest hour. He could warn Congress that if it were to override his veto of the Special Counsel bill, he would, that day, fire not only the special counsel, but also all the commissioners on all of the so-called independent regulatory commissions that have not been appointed by him.
He could tell Congress and the nation that what Congress proposed is unconstitutional and that his sworn obligation is to support and defend the constitution of the United States against all enemies, foreign and domestic, whatever the political consequences may be.
In the perfect storm that would follow, the special counsel, Robert Mueller, would become an insignificant datum — newspapers have only one front page. There are hundreds of lawyers in the country, perhaps thousands, who have a proper understanding of the constitutional structure of our government who would support the constitutionality of Trump’s action even if they think it would be unwise of the President to exercise it by firing Mueller.
This could be Trump’s finest hour. The briar patch awaits.