Special Counsel Robert Mueller’s investigation has begun to reek of both desperation and megalomania. On Friday, a federal judge overseeing the Paul Manafort prosecution, T.S. Ellis III, questioned whether the special counsel has strayed beyond its original jurisdiction over possible Trump-Russia collusion, demanding to see an unredacted version of a memo penned by Deputy Attorney General Rod Rosenstein that allegedly authorizes the special counsel to pursue Manafort for unrelated matters dating to 2005.
Judge Ellis expressed concern that the special counsel was claiming “unfettered power” to investigate anyone, for anything, in an effort to inflict political harm on the president. “You don’t really care about Mr. Manafort,” Judge Ellis told Mueller’s team. “You really care about what information Mr. Manafort can give you to lead you to Mr. Trump and an impeachment, or whatever.”
{mosads}Judge Ellis’s legal instincts are right. The special counsel, like the independent counsel that preceded it, is a dangerous constitutional hydra. In 1999, Congress allowed the old independent counsel statute to lapse because independent counsels routinely had strayed beyond their original jurisdiction, morphing into political witch-hunts aimed at embarrassing, hindering and impeaching presidents.
Independent counsel investigations had infuriated both sides of the political aisle: Republicans were furious with the Iran-Contra investigation led by Independent Counsel Lawrence Walsh. Democrats were furious with the Whitewater investigation led by Independent Counsel Ken Starr (which ultimately led to House impeachment of President Clinton).
In place of the independent counsel statute, we now have special counsel regulations, issued by the Department of Justice. In theory, the special counsel regulations are supposed to be “better” than the old independent counsel law, because the lines of political accountability to the president are stronger, with the special counsel being an employee of the Department of Justice who can be fired by the attorney general for “good cause.” The attorney general, in turn, serves at the pleasure of the president, and can be fired for any reason.
But when Attorney General Jeff Sessions recused himself, President Trump’s opponents immediately began a campaign asserting that any effort to fire Rosenstein or Mueller would constitute an obstruction of justice. Nothing could be further from the truth: The president has plenary constitutional authority to fire his executive branch officers. This is so because the executive branch is not a “fourth branch of government” — it is the second branch, a manifestation of power granted to the president by Article II of the Constitution.
The executive branch is not “independent” of the president; it is the president. In the words of the Supreme Court in Myers v. United States (1926), executive branch officers are the “alter ego” of the president, who “must place in each member of his official family, and his chief executive subordinates, implicit faith. The moment that he loses confidence in the intelligence, ability, judgment, or loyalty of any one of them, he must have the power to remove him without delay.”
The president’s constitutional power to fire executive branch officers has never been seriously questioned. Most recently, in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), the Supreme Court reaffirmed that the president’s power to fire subordinate officers is critical to ensure political accountability because the people do not vote for executive branch officers such as Rosenstein or Mueller. Instead, they elect the president, who then appoints alter-ego subordinates to help him carry out his constitutional duties.
As the Free Enterprise Fund decision put it, “The Framers sought to ensure that those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the president, and the president on the community.”
When political opponents cry “obstruction” whenever whispers of firing Rosenstein or Mueller are overheard, therefore, they are not making a good-faith legal argument. Instead, they are playing a purely political game, attempting to ratchet up the political costs should President Trump dare to exercise his constitutional authority to fire his subordinates.
They are attempting to insulate Mueller from the Constitution’s checks and balances because of the immense political benefits of doing so. A politically insulated prosecutor can abuse his power in remarkable ways. Rather than starting with evidence of a crime and searching backwards to find the perpetrator, a politically insulated prosecutor can work backwards, picking the person he wants to prosecute, and then putting his team to work on identifying some crime for which to prosecute him.
Moreover, as Judge Ellis appears to understand, if there are no meaningful limits on Special Counsel Mueller’s jurisdiction, it creates serious deficits of political accountability and thus, constitutional distortion. As the Supreme Court stated in Morrison v. Olson (1988), an independent or special prosecutor’s status as an “inferior” constitutional officer requires that his jurisdiction be limited to “accomplish a single task, and when that task is over, the office is terminated, either by the counsel herself or by action of the [superior appointing officer].”
If Rosenstein promiscuously enlarged Mueller’s jurisdiction beyond potential Trump-Russia collusion, therefore, there are serious constitutional problems necessitating rigorous judicial oversight. Perhaps this is one reason the DOJ, headed by Rosenstein on all Mueller-related matters, is fighting so hard to prevent turnover — to either Judge Ellis or members of Congress — of the unredacted version of Rosenstein’s memo defining Mueller’s jurisdiction.
As experience with the old independent counsel law showed, having a politically insulated prosecutor, with virtually unlimited jurisdiction to target a president and his associates, for acts undertaken both before and after assumption of the presidency, is a very powerful weapon.
But it isn’t a nuclear weapon capable of blowing up the Constitution. There must be checks and balances on the special counsel, including tight political accountability to the president, and meaningful, enforceable limits on the special counsel’s jurisdiction. Judge Ellis should be commended for recognizing these constitutional commands.
Elizabeth Price Foley practices constitutional law in Washington, D.C., and a founding professor at Florida International University College of Law in Miami, where she teaches constitutional law, civil procedure and health care law. She has testified before Congress on various issues of constitutional law, including congressional standing to sue the president, the scope of congressional subpoena power, and the president’s duty to faithfully execute the law.