California Forum

Congress must stop Trump from firing Mueller if the law is going to mean anything

Posters of people who have plead guilty in special counsel Robert Mueller’s probe into Russian interference in the U.S. elections are held by staff members during a joint House Judiciary, Oversight and Government Reform Committees hearing with FBI agent Peter Strzok.
Posters of people who have plead guilty in special counsel Robert Mueller’s probe into Russian interference in the U.S. elections are held by staff members during a joint House Judiciary, Oversight and Government Reform Committees hearing with FBI agent Peter Strzok. Bloomberg

It is urgent, and long overdue, for Congress to pass a law protecting Robert Mueller from being fired by President Donald Trump. Trump constantly has referred to Mueller’s investigation as a “witch hunt” and apparently has been on the verge of firing Mueller several times. Under current law, there is nothing to stop Trump from ordering Deputy Attorney General Rod Rosenstein to fire Mueller and if Rosenstein refuses, to replace Rosenstein with someone who will do so.

The events of the last two weeks show the importance of Mueller’s investigation. On Friday, July 13, the Justice Department announced indictments against 12 Russian nationals for engaging in a “sustained effort” to hack Democrats’ emails and computer networks. All 12 defendants are members of the GRU, a Russian intelligence agency within the main intelligence directorate of the Russian military. The indictment describes a sophisticated and coordinated effort by Russian intelligence agents to influence the outcome of the 2016 presidential election by damaging Hillary Clinton and aiding Donald Trump.

It is essential that Mueller be allowed to finish his investigation without removal or interference. A couple of bipartisan bills have been introduced into Congress to accomplish this.

Despite this, on Monday, July 16, Trump, at a press conference in Helsinki with Russian President Vladimir Putin, rejected the conclusion of the United States intelligence community that Russian interfered with the 2016 presidential election and Trump said that he doesn’t “see any reason why” Russia would be responsible. Trump later said he misspoke and meant to say he didn’t see any reason Russians “wouldn’t be responsible.”

But that explanation is belied by the fact that Trump, while standing next to Putin, endorsed Putin’s denial and said, “I have great confidence in my intelligence people, but I will tell you that President Putin was extremely strong and powerful in his denial today.” Trump then shifted to talking about Hillary Clinton’s missing emails.

On Wednesday, July 18, Trump was asked before a Cabinet meeting whether Russia is still targeting the U.S. Trump shook his head and said “no.” Later, White House press secretary Sarah Sanders sought to clarify Trump’s comments, saying his “no” meant that he was not taking any questions from reporters. On Sunday, July 22, Trump tweeted that the concern about Russian interference in the election is a “hoax.”

Trump’s statements fly in the face of the conclusion of every United States intelligence agency. Dan Coats, a former Republican Senator and Trump’s pick to be U.S. director of national intelligence, declared: “We have been clear in our assessments of Russian meddling in the 2016 election and their ongoing, pervasive efforts to undermine our democracy, and we will continue to provide unvarnished and objective intelligence in support of our national security.”

It is unclear why Trump refuses to acknowledge this. Perhaps it is as simple as he worries that it will undercut the legitimacy of his election. But there also are more sinister theories that he is under the influence of Russians, perhaps because of financial transactions involving them before taking office. I know of no instance in American history where there were such allegations against a president.

All of this makes it essential that Mueller be allowed to finish his investigation without removal or interference. A couple of bipartisan bills have been introduced into Congress to accomplish this.

Republican Sen. Thom Tillis of North Carolina and Democratic Sen. Chris Coons of Delaware have introduced a bill that would require that the firing of Mueller be for good cause and approved by a panel of federal judges. Another, similar, bill has been introduced by Sens. Lindsey Graham, a Republican from South Carolina, and Cory Booker, a Democrat from New Jersey.

There is no doubt that such a law would be constitutional. In Morrison v. Olson, in 1988, the Supreme Court in a 7-1 decision upheld the constitutionality of a federal law that provided for the appointment of an independent counsel and allowed removal only for “good cause” by a panel of three federal judges. The court stressed the importance of the independence of the person responsible for investigating alleged wrong-doing by the president or high level executive officials. Ironically, last week it was revealed that Supreme Court nominee Brett Kavanaugh in a speech declared that Morrison v. Olson was the Supreme Court decision he would most like to see overruled.

None of us can know where the Mueller investigation ultimately will lead and who else will be indicted. But there must be a thorough and independent investigation into what happened in 2016 and what crimes were committed.

This is about the integrity of our democratic process and about the most basic principle of the rule of law: No one, not even the president, is above the law.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law; echemerinsky@law.berkeley.edu.

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