Mitch McConnell won't protect Robert Mueller

The Senate Majority Leader has sent Trump the message that he has the all-clear to fire the special counsel

By Matthew Rozsa
April 18, 2018 12:51PM (UTC)
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Mitch McConnell (AP/J. Scott Applewhite)

Senate Majority Leader Mitch McConnell has made it clear, through his actions if not his words, that he would be perfectly okay with President Donald Trump firing the man appointed to investigate him, Special Counsel Robert Mueller.

When discussing the Special Counsel Independence and Integrity Act — a bipartisan bill co-authored by Republican Sens. Thom Tillis of North Carolina and Lindsey Graham of South Carolina, as well as Democratic Sens. Cory Booker of New Jersey and Chris Coons of Connecticut — McConnell made it clear to Fox News that while he ostensibly doesn't want Trump to fire Mueller, he also doesn't believe the legislation is necessary to protect the special counsel.

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"There’s no indication that Mueller’s going to be fired. I don't think the president's going to do that and just as a practical matter, even if we passed [the bill], why would he sign it?" McConnell told Fox News' Neil Cavuto on Tuesday.

He added, "I’m the one who decides what [legislation] we take to the floor. That's my responsibility as the majority leader. We’ll not be having this on the floor of the Senate."

He also emphasized that he did not expect Trump to fire Mueller, saying that he would be shocked if that happened and "I don't think he should and I don't think he will."

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McConnell's decision runs athwart the actions of Senate Judiciary Committee Chairman Chuck Grassley, a Republican from Iowa, who sought to expedite the bill to a vote in his committee in the aftermath of a recent raid on the law office of Trump's attorney Michael Cohen, according to The New York Times. Within the past week, three House Republicans have expressed support for legislation that could offer some protection to Mueller, according to Politico.

Tillis, one of the bill's co-sponsors, has stressed that the bill doesn't just exist to curb Trump's potentially unconstitutional behavior but to make sure that future presidents don't abuse their power as well.

"It’s a good bill that’s going to have enduring value beyond this presidency. I think the president’s frustrated; I may be if I were in the same position. But I do think it’s a bill that’s worthy of a mark-up in Judiciary and sending it to the floor," Tillis told Politico.

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Although Republicans like Sens. Jeff Flake of Arizona and John Kennedy of Louisiana have claimed they have reservations about the bill because they're concerned it may be unconstitutional, legal scholars have taken issue with the soundness of that argument, according to Vox.

"It is exasperating that lawmakers rely on such easily debunked constitutional concerns for political cover," Professor Steve Vladeck at the University of Texas — Austin's law school told Vox.

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The conservative concern regarding the possible constitutionality of limiting Trump's ability to fire Mueller is rooted in the 1988 Supreme Court case Morrison v. Olson, in which the post-Watergate Independent Counsel Act was upheld. That law created a special investigator role that was entirely independent of the executive branch to avoid a repeat of the incident in which President Richard Nixon fired Watergate special prosecutor Archibald Cox. Because the law was allowed to expire in 1999, however, the position that has replaced independent counsels — the special counsel position held by Robert Mueller — is not separate from the executive branch.

Yet Vladeck insists that, because the special counsel is controlled by the Justice Department, there is more room for protecting Mueller from firing rather than less.

"I find this public conversation so frustrating. Two things would have to be true for this to be unconstitutional: First, the Supreme Court would have to overrule Morrison and then go past Morrison and rule in the other direction," Vladeck told Vox.

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If anything, the problem with the bill proposed by the bipartisan coalition of senators is that it won't go far enough to protect Mueller.

"[Good cause] is almost an unreviewable standard. It would be very difficult for a court to review that kind of language. It’s unlikely that this legislation would materially increase protections for Mueller," Jonathan Turley, a professor at George Washington University Law School, told Vox.

He added, "The special counsel is the creation of the attorney general or his designated subordinate; as such, the argument could be that any limitations intrude upon executive authority."

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Regardless of whether Congress has the right to limit Trump's ability to fire Mueller, one thing is clear — it's nonsensical to argue that there is no risk that he could be fired. As Jonathan Chait noted in New York Magazine, the notion that Trump won't fire Mueller has become so hard to substantiate using the facts of the matter that it has become outright absurd:

McConnell argues, as he has in the past, that such a bill is “unnecessary” because there is “no indication” Trump would fire the special counsel. Of course there are many indications. Innumerable news reports have described Trump raging about Mueller and demanding his firing. Trump actually ordered the firing of Mueller in June, and again in December, and has begun attacking Mueller publicly, as well as attacking the Department of Justice official who oversees and has approved his investigation, both privately and publicly. Trump has also previously fired the FBI director, with whom he closely associates Mueller.

Other than that, there aren’t any indications. But the only indications McConnell will accept as valid will apparently be the actual firing of Mueller, at which point it will be too late to do anything, and McConnell will urge the country to trust Trump’s new attorney general, Sean Hannity, or whoever.

Recent polls strongly suggest that firing Mueller would be politically disastrous for Trump. The good news for the president is that the attacks by him and GOP partisans against the special counsel seem to be working, with 32 percent of Americans having a favorable opinion of Mueller, 30 percent having an unfavorable opinion and 38 percent saying they don't know enough to have an opinion, according to a poll by NPR/PBS NewsHour/Marist. Those numbers are predictably split along partisan lines, with Democrats being the most favorably disposed toward Mueller while Republicans are unfavorably disposed toward him and independents are more mixed. Yet despite the controversy over Mueller himself, 56 percent of Republicans believe Mueller should be allowed to finish his investigation, along with 65 percent of all adults polled.


Matthew Rozsa

Matthew Rozsa is a staff writer for Salon. He holds an MA in History from Rutgers University-Newark and is ABD in his PhD program in History at Lehigh University. His work has appeared in Mic, Quartz and MSNBC.

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Donald Trump Mitch Mcconnell Robert Mueller