Justice, Politics

Robert Mueller Will Be Greeted As A Liberator... By Senate Republicans

By impaneling a grand jury, Mueller makes things even easier for Republicans.

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Robert S. Mueller (via YouTube)

The Wall Street Journal reports that special counsel Robert Mueller is impaneling a grand jury to continue his investigation into the Russia and the 2016 election.

It’s a big step. We think of a grand jury merely as a charging tool, but it’s also an investigative tool. Grand juries can subpoena documents and take testimony under oath. They’re useful if you are building a case. Trump, and his people, have a complicated relationship with the truth. A grand jury should deal with that. To paraphrase The Simpsons: On Twitter, you celebrate spin; the grand jury punishes falsehoods.

At this point, I’m contractually obligated to tell non-lawyers that impaneling a grand jury doesn’t mean Mueller is prepared to press charges in the Russia investigation… but it’s clear that the investigation is heating up, not winding down.

Mueller also made another high-profile legal hire. Greg Anders, of Davis Polk & Wardwell, will be joining the all-star team. In the understatement of the day, former federal prosecutor Thomas Zeno told the WSJ: “People like Greg Andres don’t leave private practice willy-nilly.”

I expect this is all just the kind of new Senate Republicans want to hear. They seem pretty eager to move on to the part of the story where they get to work with their boy, Mike Pence.

Here’s some things that have happened in the past week or so: The Senate put Russia sanctions on the president’s desk and forced him to sign the bill (troll level: Article I). They’re straight-up ignoring the president’s request to keep slamming their heads into the car door that is Obamacare. Lindsey Graham is defending immigrants. Orrin Hatch, Orrin-Motherf**king-Hatch, is defending TRANSGENDER RIGHTS against Donald Trump.

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Who can know if Trump is recognizing these Republican-led attacks on his presidency? I haven’t even brought up the fact that the military seems happy to ignore the commander’s transgender tweets, or the fact that somebody leaked the president’s private, classified conversations with world leaders to the Washington Post. Read Richard Neustadt’s classic work, Presidential Power (affiliate link): in just six months, Trump has been reduced to only his formal powers. His most important power, the power to persuade, has already been lost.

Even before today’s news about the grand jury, the Senate was working on its biggest threat yet to executive authority. Thom Tillis (R-NC) and Chris Coons (D-DE) have introduced legislation that would limit Trump’s ability to fire Robert Mueller. Lindsey Graham (R-SC) and Cory Booker (D-NJ) are working on similar legislation.

Under the proposed Special Counsel Integrity Act, Mueller, or any other special counsel, would be able to challenge their firing through arbitration. A three-judge panel would convene within 14 days, and if it failed to find a good “cause” for the dismissal, the special counsel would be retained.

You’ll note I said this bill was a threat to “executive” authority, not just “Trump’s” authority. Constitutionally, it’s a little weird for Congress to be dictating the terms under which the president can fire members of the executive branch. I’m not sure that Congress would win that battle in court. Moreover, this legislation would have to pass both the House and the Senate, and then be signed by… the president. Which seems unlikely. The Special Counsel Integrity Act seems more likely to further embarrass Trump than to actually protect Mueller.

Let’s also remember that we should be able to hold Trump and his administration accountable without Robert Mueller. Congress has the authority to appoint its own special prosecutor. I feel like people forget that. When Richard Nixon fired Archibald Cox, the investigation into Watergate didn’t stop. The Senate had its own committee that was investigating the president. It was the Senate committee — led by Samuel Dash, and Fred Thompson — that was going to get the president impeached.

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But it really seems like the Senate Republicans have put all their hopes in Bob Mueller. They seem to want Mueller to do this for them. He’s doing them a solid.

Special Counsel Mueller Impanels Washington Grand Jury in Russia Probe [Wall Street Journal]
Senate bill would allow Mueller to challenge firing in court [The Hill]

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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